Counting castes among the people is a more complicated and conflicting task than its proponents and opponents had previously anticipated. Opponents see it as a matter of expediency rather than justice, while proponents portray it as a feasible utopia reshaping sovereign authority into an ethical state formation. The response of the Central Government to the Supreme Court’s order for a caste census has reignited calls for conducting a caste census. In their affidavit, the administration stated that it was unable to perform a caste census owing to technical difficulties. The Centre’s submission came in response to a Maharashtra government suit seeking information on the Backward Class of Citizens (BCC) in Census 2021. This article takes the readers through the stories surrounding caste census, the debate on it which is ongoing, and the reasons the Central Government put forth before the Supreme Court of India recently.
The demand over caste census
The demand for caste census goes beyond politics. India has the largest caste-based affirmative action program in the world. Caste identities are used to offer reservations in educational institutions and government positions. Scheduled Castes (SCs), commonly known as Dalits (15%), and Scheduled Tribes (STs) (7.5%) have quotas based on caste and tribal identity. The Other Backward Classes (OBCs) have the greatest reservation mandate, at 27 percent, since the BP Mandal Commission determined the class’s backwardness based on caste. While quotas for Dalits and STs are proportionate to their number as determined by census procedures held every ten years, reservations for OBCs are not dependent on their percentage of India’s population. The OBC quota was set at 27% since there was enough room to retain the reservation maximum at 50%. The most recent caste census data collected and released is from Census 1931. The British colonial government’s final census, performed in 1941, collected caste data but did not publish the results. Following independence, the government only gathered and released caste data for SCs and STs in Census 1951.
The necessity of caste census
Due to the lack of new caste census data, the caste estimations from 1931 are being projected for welfare policy formulation in 2021, which stands extremely haunting for those who will be subjected to such policies. A caste census is anticipated to provide policymakers with new and updated data. Between 1999 and 2007, the NSSO (National Sample Survey Organization) polls produced a range of estimates for OBCs, ranging from 36% to 45%. The United District Information System for Education Plus (UDISE) numbers recently revealed schooling data for each caste group. According to the UDISE data, OBC pupils make up 45 percent of primary school students, SCs 19 percent, and STs 11 percent. The remaining 25 percent belonged to the higher caste.
Caste enumeration should be feared by the most outspoken beneficiaries of caste-based reservations. Census data may give substantial evidence, which has been lacking thus far, that some castes are privileged and do not belong on the OBC (technically the SEBC, the Socially and Educationally Backward Classes) list. Indeed, the Supreme Court’s landmark Indra Sawhney decision (1992) has been a benchmark for the subject matter of caste census as it mandated that such information be collected every ten years in order to weed out privileged castes from quota privileges.
What opponent parties have to say about caste census
The groups calling for a caste census believe that the so-called upper castes have a disproportionate share of jobs and higher education opportunities. Nitish Kumar, the Chief Minister of Bihar, being a staunch supporter of a caste census, claims that enumerating the number of each caste group will benefit the government in formulating more precise social programs.
Tejashwi Yadav, the head of the RJD, has authored an op-ed piece in a major daily. He was said to have sent letters to non-BJP parties requesting support for a caste census.
MK Stalin, the Chief Minister of Tamil Nadu, has backed the census alongside his party, the DMK, which has written to the Centre and allies pushing for the inclusion of OBC castes.
The Congress appointed a panel chaired by veteran politician M Veerappa Moily with senior legislators Salman Khurshid, Abhishek Manu Singhvi, PL Punia, RPN Singh, and Kuldeep Bishnoi as members amid a mounting uproar about caste census.
Honest opponents of caste-based reservations should embrace, if not demand, the collection of reliable caste-specific statistics on educational prospects and economic situations. If they truly feel that educational and career possibilities are distributed equally or are based on economic class rather than caste, caste-based census enumeration must be welcomed. Because the census is more than just a count, it also generates data on educational attainment, occupation, household assets, and life expectancy for each group it enumerates at each level.
The Supreme Court’s take on caste census
The series of events on the subject matter of caste census that had taken place involving the Supreme Court of India has been listed down hereunder.
The petition from Telangana
On February 26, 2021, the Supreme Court of India had decided to hear a petition asking for directives to the National Government to conduct a caste-based census this year (2021) to collect data on the Other Backward Classes. The Centre and the National Commission for Backward Classes were served with a notice by a bench consisting of former Chief Justice Bobe, Justices AS Bopanna, and V Ramasubramanian. The Court was hearing a petition submitted by G Mallesh Yadav, a social activist from Telangana, who claimed that a caste census was a “critical requirement” for the benefit of the Other Backward Classes, which make up more than half of the country’s population.
The petitioner stated that a caste census was necessary for establishing reservations in education, the labour market, and local government elections. According to the petition, a lack of such data was causing difficulties in determining the ratio of reserves for backward classes commensurate with their population. According to the petition, the government intends to conduct a national census in 2021, and a pro forma with 32 columns comprising information on Scheduled Castes and Scheduled Tribes, Hindus, and Muslims, among others, was provided. However, the same did not have a column for Other Backward Classes. The petition claimed that the federal and state governments were creating and executing a slew of plans in the areas of education, employment, economics, and politics in order to lift the backward classes out of poverty but the latter was hardly getting benefitted by such policies due to lack of caste census.
The NCBC (National Commission for Backward Class) was given constitutional legitimacy by the Narendra Modi-led federal government, which also formed a panel, chaired by former Chief Justice of the Delhi High Court Justice G Rohini, to sub-categorize OBCs in order to extend quota privileges to the weakest groups among them. According to the Rohini Commission, which was established to investigate the equitable allocation of the OBC quota of 27 percent, there are about 2,633 castes covered by the OBC reservation. However, the Centre’s reservation policy, which dates back to 1992, ignores the fact that there is a separate group of Extremely Backward Castes (EBCs) inside the OBCs who are considerably more neglected.
The Union Government’s declaration on 20th July 2021
To map India’s caste-wise population, the Union Government on 20th July 2021, stated that the forthcoming 2021 census will count only Scheduled Castes (SC) and Scheduled Tribes (ST). Other Backward Castes would be excluded from the statistics (OBCs). Nityanand Rai, the Union Minister of State for Home Affairs had informed that “the Government of India has chosen not to enumerate caste-wise population in censuses other than SCs and STs as a matter of policy”. The castes and tribes identified as SCs and STs in the “Constitution (Scheduled Castes) Order, 1950” and the “Constitution (Scheduled Tribes) Order, 1950″ are listed in the present policy.
The Union Government’s affidavit
The Union Government has ruled out conducting a Socio-Economic Caste Census (SECC) in an affidavit filed in the Supreme Court on September 23, 2021, stating that a caste census (except for the Scheduled Castes and Scheduled Tribes, which is done traditionally) is unfeasible as it is “administratively difficult and cumbersome.” The affidavit was filed in response to a writ petition filed by the Maharashtra government (State of Maharashtra v. Union of India (2021)), which requested that the Union Government gather data on rural India’s Backward Class of Citizens (BCC) during the census enumeration in 2021. The plea further demanded that the Centre must provide the raw caste data on OBCs obtained during the SECC-2011. The figures available on record on the basis of the 2011 census disclose that the State population is about 11.24 crores out of which 3,68,83,000 is the population of OBC.
The Centre told the Supreme Court on December 14, 2021, that the 2011 Socio-Economic and Caste Census (SECC) is “not” data on Other Backward Classes (OBC), and that it was not made public because it was determined to be faulty and likely to mislead. The government has stated that it completely supports OBC reservation, but that it must be done in accordance with the Supreme Court’s Constitutional bench’s 2010 decision in the case of K. Krishna Murthy & Ors vs Union Of India & Anr (2010), which set forth three requirements that must be met.
K. Krishna Murthy & Ors vs Union Of India & Anr (2010)
A bench of Justices K.G. Balakrishnan, R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal of the Supreme Court of India laid down the triple test for determining reservation for OBCs, which are provided hereunder:
Identification of backward groups for the purpose of reservations is an executive duty, and specialized commissions should be constituted to conduct rigorous empirical research into the nature and implications of backwardness, as mandated by Article 340 of the Indian Constitution. It is also the executive’s responsibility to ensure that reservation policies are reviewed on a regular basis to avoid overbreadth.
It is realistic to assume that not all groups that have received reservation advantages in the areas of education and employment also require reserves in the area of local self-government. This is because the barriers to political engagement are not the same as those that prevent people from getting an education or finding work. In terms of reservations in local self-government, this necessitates some innovative thinking and policymaking.
The rule of thumb that needs to be followed in the absence of express constitutional instructions on the amount of reservation for backward classes in local self-government is a proportional reservation. However, it is important to emphasize that the top limit of 50% (quantitative limitation) for vertical reservations in favor of SC/ST/OBCs should not be exceeded.
The present decision made by the Supreme Court in this regard
The Supreme Court on 15th December 2021 observed that the Indian states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President of the Commission under Article 338B, for inclusion, exclusion, or modification of castes or communities, in the list to be published under Article 342A (1) of the Indian Constitution, thereby dismissing the Maharashtra Government’s petition seeking a direction to the Central government to disclose raw data pertaining to 2011 Socio-Economic and Caste Census (SECC). The Court also stated that the President shall publish the notification containing the list of SEBCs with respect to states and union territories, for the purposes of the Constitution, as soon as the Commission established under Article 338B completes its duty and makes its recommendations.
Conclusion
One of the most compelling arguments in favor of caste-based enumeration is that in a culture where caste is at the foundation of discrimination and inequality, in healthcare, education, and even access to justice, it’s critical to track how caste affects individuals so that solutions may be devised. Casteism will not be eradicated by excluding caste-specific data, but adding it has the potential to be the beginning of the end of the existing caste system.
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:
The directors of a company are essential to the everyday functioning of the company. As a result, they owe specific fiduciary duties towards the company and are answerable to all stakeholders. In India, these duties have been codified under Section 166 of the Companies Act, 2013. Such duties include acting in good faith, duty to exercise reasonable care, skill and diligence, duty to exercise independent judgment, and duty to avoid undue gains. As long as a company is a solvent, the liability of directors is mainly towards the company’s shareholders as they are expected to take objective decisions for their benefit. Whereas, once a company becomes insolvent, the attention of directors must shift from “earning profit for wealth maximization of shareholders” to “minimizing the loss to and protecting the interests of the creditors”. This has led to the introduction of the Insolvency and Bankruptcy Code, 2016 (IBC,2016), which in turn endeavours to save the life of a company in financial distress.
The insolvency legislation in several countries expressly states the liabilities that directors may face during impending insolvency. These liabilities include liability for avoidance transactions (i.e., preferential transactions, undervalued transactions, etc.), wrongful trading, fraudulent trading, misfeasance, etc. The said liabilities may extend not only to formally appointed directors, who may be executive directors, independent directors but also to non-appointed individuals known as “shadow directors”.
This article endeavours to explain the meaning and concept of a shadow director, his legal status in a company and, considering the same, analyses his liability under the insolvency law in detail.
Meaning and concept of shadow director
The concept of shadow director is adopted from English law. Although not formally appointed as a director, a shadow director is a person in accordance with whose directions or instructions the directors of a company are accustomed to act. However, a person is not a shadow director merely because the directors act on his advice in a professional capacity.
For a person to be given the title of a ‘shadow director’, he must wield considerable power to influence the whole or majority of the Board of Directors (“Board”) of a company, make financial, commercial, and investment decisions that bind the company, and, in some instances, possess whole or part of management authority ceded to him by a company. It may also consist of a person who took part in the company’s formation, promotion, or management. For example, the holder of controlling shares of a private company who is not appointed as a director and does not openly partake in the company’s governance gives directors or instructions that are habitually complied with by the employees or other directors. Besides, in some cases, special advisors, lenders and bankers may also be treated as shadow directors.
Therefore, a person may be considered as a shadow director irrespective of the formal title assigned to him if he possesses the aforesaid powers. In the eyes of the law, he is a de facto director and is held equally accountable for the responsibilities of the company with the other de jure directors. It is crucial to consider the particular person’s conduct and its frequency and determine whether or not the influence is exercised.
Legal position of a shadow director
Although the term ‘shadow director’ is not defined per se under the Companies Act, 2013, the Act has references to it at various places. However, the UK’s Companies Act, 2006 defines the term ‘shadow director’ under Section 251(1) as, “a person in accordance with whose directions or instructions the directors of the company are accustomed to act.”
The Companies Act, 2013 contains a similar definition to above in the following sections:
Section 2(59) – “officer” includes any person in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is or are accustomed to act”.
Section2(69)(c) – “promoter” means a person in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act.”
Section 2(60)(v) – “officer who is in default”, for any provision in this Act which enacts that an officer of the company who is in default shall be liable to any penalty or punishment by way of imprisonment, fine or otherwise, means any person in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act, other than a person who advises to the Board in a professional capacity.”
Therefore, there is no doubt that the position of a shadow director is recognized and given legal status under the Companies Act, 2013. This is necessary to ensure that they do not abuse the power bestowed upon them and take advantage of the fact that they are not formally appointed in the company.
Liability of shadow directors for insolvency procedures
Under IBC, 2016, the liability of directors can either be punitive based or disgorgement based. Punitive liability arises on actions involving an element of mens rea such as defrauding creditors, concealment of property, undervalued transactions, falsification of books of accounts, where the liability can be established by a definite set of objective facts. On the other hand, disgorgement liability is imposed when wrongful trading or certain other unethical business transactions take place requiring repayment of ill-gotten gains.
Section 66 of IBC, 2016 deals with the liability of directors and other persons. While Section 66(1) provides for fraudulent trading, Section 66(2) provides for wrongful trading. Liability for fraudulent trading extends to ‘any person’ meaning ‘insiders’ as well as ‘outsiders’ like employees, directors including shadow directors and other third parties. Whereas, in case of wrongful trading, liability is imposed only on insiders, i.e., directors or partners of a company. This Section does not differentiate between executive, independent or shadow directors and applies consistently to all types of directors of a company. Therefore, shadow directors can be held liable for both fraudulent and wrongful trading.
Liability under the UK Insolvency Act, 1986
The provisions pertaining to fraudulent and wrongful trading in India were derived from UK Insolvency Act 1986 (UK Act, 1986). The provisions of the UK Act, 1986 impose liabilities not only for defrauding creditors but also seek to make directors liable for reckless and negligent acts during a period of financial distress. Shadow directors are not excluded from the said liability and the UK Act, 1986 seeks to make them accountable both for fraudulent as well as wrongful trading.
Liability for fraudulent trading
Section 213 of the UK Act, 1986 permits the court to order any person to make contributions to the company’s assets if they were knowingly parties to the fraudulent trading of business with the intention to defraud creditors, on an application made by the liquidator.
Therefore, in this case, the liability for fraudulent trading will only be determined once the company goes into liquidation. In such cases, the conduct of the shadow director in the period leading up to liquidation shall be taken into consideration. An intention to defraud creditors may be inferred if the company carries on a business and incurs debt when, to the knowledge of the party liable, there is no reasonable prospect of the company being able to repay.
Section 213 of the UK Act, 1986 covers only civil liability and enables liquidators to recover compensation from those who have knowingly assisted the fraudulent conduct of a company’s business. In the case of In Re Patrick and Lyon Ltd, a director of a company delayed liquidation for a period of 6 months in order to deprive the creditors of the recovery of their dues. The court held that the jurisdiction of the court is confined in civil cases, to declare the past or present directors including shadow directors of the company responsible for carrying on business with the intent to defraud the creditors, to be personally liable for all or any of the debts of the company as the court may specify.
Moreover, the term ‘any person’ extends the liability beyond past and present directors including shadow directors and to other persons including companies who were knowingly parties to such fraudulent trading.
Liability for wrongful trading
Section 214 of the UK Act, 1986 imposes a personal unlimited liability on a shadow director to contribute to the assets of a company that has gone into liquidation if he continued to trade negligently and recklessly when he knew or ought to have known that there was no prospect for the company to avoid the liquidation process.
In the case of Re Continental Assurance Company of London Plc, the company collapsed due to heavy losses due to unexpectedly high travel insurance claims and the inability to make suitable provisions for these claims in the company’s reserves. The liquidators brought proceedings against the former managing director and some of the company’s former non-executives under Section 214 of the said Act on the contention that the directors should have stopped trading when the losses were first reported.
However, the court rejected their contention, stating that based on the information available to them at the time, the defendants had acted reasonably in deciding that the company could continue trading to find a buyer for its business. Furthermore, they were active in keeping the company’s financial position under close and continuous review, and a reasonably diligent person in their position could not have been expected to do anything more.
Thus, a shadow director would be measured against the general knowledge, skill and experience that may be reasonably expected out of a ‘reasonably diligent person’ acting in a similar capacity.
Liability under IBC, 2016
Liability for fraudulent trading
Section 66(1) imposes liability on any persons who were knowingly parties to the carrying on of the business with the intent to defraud creditors of the corporate debtor or for any fraudulent purpose, to make contributions to the assets of the corporate debtor as per the order of the Adjudicating Authority (National Company Law Tribunal).
As stated above, the term ‘any person’ seeks to include a wide range of persons in its ambit. A shadow director, therefore, would be liable only if he ‘knowingly’ carries on fraudulent activities. Fraud or fraudulent purpose has been interpreted to mean“actual dishonesty according to the current notions of fair dealing”. The essential element of fraudulent trading is an ‘intention to defraud’ creditors. An intention to defraud creditors can be inferred if there was dishonesty involving real moral blame according to current notions of fair dealing.
In the case of R v. Grantham, it was held that, where a person is involved in the management of a company’s affairs and obtains credit for the company despite knowing that there is no reason to believe that he will obtain adequate funds to discharge the debt when it becomes due, he is said to carry on company’s affairs ‘with the intent to defraud’ the creditors of the company. For a person to be proved guilty of such offence, it is not necessary that the person accused must believe that there was no reasonable prospect of the company’s creditors ever receiving payment of their debts. It is sufficient to prove that he believed that the debt could not be paid when it became due or shortly thereafter.
Therefore, a shadow director can be held liable in situations where a company carries on a business and incurs debts even when he is aware that there is no reasonable prospect of the company being able to pay them. Reasonable grounds for suspecting non-payment of debt or insolvency would require more than mere speculation, and the director must have an actual apprehension that the company is insolvent. This is a comparatively lower standard than expecting or knowing the company is insolvent. The shadow director should be a person of ordinary competence capable of having a rudimentary understanding of the company’s financial status, and the judgment ought to be made on the basis of knowledge such a director could have had and not on information that might later become apparent.
In case of liability, the NCLT has the authority to claim a contribution to the assets of the corporate debtor from the defaulting shadow director.
Liability for wrongful trading
Under Section 66(2), on an application made by an insolvency professional a director/partner is liable to make contributions to the assets of the company and the NCLT may disgorge such amounts from the director’s/partner’s personal assets if:
the director knew or ought to have known that there was no reasonable prospect of avoiding the commencement of a Corporate Insolvency Resolution Process (CIRP) against the company; and
the director did not exercise due diligence in minimizing the potential loss to the creditors of the company.
The explanation to the Section provides that a director is said to have exercised sufficient due diligence if such diligence was reasonably expected of a person carrying out the same functions as the director.
Therefore, under Section 66(2), a shadow director would be held liable even if he did not have a dishonest intention but acted negligently or recklessly, thereby subjecting the company to further risk due to such actions. For instance, behaviours or actions such as imprudence, incompetence, lack of attention, failure to act in due time, engaging in transactions that are not at arm’s length, erroneously extending credit beyond the company’s means, failure to undertake satisfactory research into the financial soundness of business partners, neglecting proper financial administration of the company, etc. may give rise to liability under this Section.
Consequently, the liability of a shadow director will depend on whether or not his actions meet the “due diligence” standard. He must act in the same manner in which a reasonable and competent person would have acted in similar circumstances and contexts.
The business judgement rule that establishes a presumption that the shadow director, for example, had acted in good faith and had a rational belief that he acted in the company’s best interests, had no material personal interest, and that he was properly and sufficiently informed, could serve him as a safe harbour from the guilt of negligence. However, the shadow director must ensure that he has adequately informed himself with respect to the company’s financial matters by acquiring, studying and relying upon information that a reasonable person in similar circumstances would find persuasive.
Prioritising creditors’ interests
This section is responsible for shifting the focus of directors’ duties from shareholders to the creditors during the ‘twilight zone’ (the period between the time when the director knew or ought to have known that there was no reasonable possibility of avoiding the commencement of CIRP, till the time the company enters into such resolution) as it casts personal liability on such directors to the extent of the potential loss incurred by the creditors by reason of failure to exercise due diligence in minimising the said loss.
During such a period, additional responsibility is imposed on the director to prioritize the interests of the creditors above the shareholders and ensure that the affairs of the company are adequately conducted, and its properties are not exploited to the prejudice of such creditors. Therefore, a shadow director is expected to ensure that he acts in good faith and in the best interests of the creditors.
The perplexing issue in this Section is determining the point of time of commencement of the twilight zone. Although this issue is ambiguous, a reasonable expectation of insolvency, along with the knowledge that insolvency may be near, will cause a shift in interests from shareholders to creditors by directors.
Ceasing of directors’ liability
Under the IBC, 2016, when a company continues to function in a state of financial distress, thereby making it unable to pay its debts as and when they fall due, it can voluntarily initiate an insolvency resolution process. On acceptance of such application and appointment of an Interim Resolution Professional (IRP), the Code suspends the powers of directors. The IRP would thereafter be responsible for managing the operations of the company. As a result, shadow directors would no longer be personally liable for any further actions as they are not empowered to act beyond this period.
Punishment for transactions defrauding creditors
Section 69 of IBC, 2016 recognizes severe criminal penalties for defrauding creditors if the defaulting party is an officer of the company. It includes imprisonment for a minimum term of 1 year, which may extend to 5 years, or a fine that shall not be less than Rupees 1 lakh but may extend to Rupees 1 crore or both.
The term “officer” under the IBC, 2016 has been defined under Section 5(19) to mean an officer who is in default as defined in Section 2(60)(v) of the Companies Act, 2013. As stated above, a shadow director is considered to be an officer-in-default by virtue of the said provision and would therefore be liable for the prescribed punishment.
Steps that can be taken to mitigate liability
The shadow director has to ensure that the value of the company’s business is preserved and at the same time avoid personal liability by taking appropriate steps to minimise the probable loss to the creditors of the company. There might be situations where the company though is presently solvent, could potentially be dragged into CIRP owing to temporary liquidity issues. As a result, the shadow director has to be cautious in order to save himself from personal liability. The mitigating steps that can therefore be taken:
Negotiate long-term loan contracts in a manner whereby any default in payment would enable the opposite party to initiate CIRP only after affording the company a sufficiently long notice period to consider all the possible options. As a result, he can buy time to take note of all viable options.
Keep in place appropriate procedures to enable timely consultation with the company’s auditors to retrieve adequate financial information about the company.
Frequently discuss and appraise the cash flows of the company and strictly monitor all actual and contingent claims against the company.
Obtain director and officer liability insurance and review the same at regular intervals to ensure that it covers any liability arising as a result of wrongful trading.
Ensure appointment of independent and reputed merchant bankers to formally opine on business potentiality and solvency in the immediate future on early signs of distress.
Obtain a legal opinion from reputed law firms to ensure that steps are taken at the onset of a potential CIRP meet the criteria of “due diligence” under Section 66(2) of IBC, 2016.
Lastly, if all else fails, timely file for CIRP if it appears that any inaction may further decline the value of assets to the creditors.
Conclusion
Despite the possible difficulties connected with taking appropriate business decisions, prompt action must be taken when a company faces financial problems. A financial downturn usually occurs more rapidly than many parties would believe. As a company’s financial position worsens, the options available for achieving a viable solution also rapidly diminish. The shadow directors are bound to keep themselves abreast of the financial condition of the company. If they fail to take active steps to recover a company in financial distress, the law should make them responsible for the same.
Section 66 of IBC, 2016 endeavours to do so by not only making the liability of such directors unlimited in cases of fraudulent trading but also by mandating them to contribute to the assets of the company in cases of their negligence or recklessness. As a result, shadow directors, among others, should understand the company’s financial situation and possess all reasonably available information to exercise due diligence to address the company’s financial distress and satisfy the creditors’ claims.
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:
The Protection Of Women From Domestic Violence Act, 2005 defines an “aggrieved person” as any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. The term respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought relief under the Act. In pursuance of the basic intent of this Act, however, the term “respondent” includes “female relatives” as well because the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of this Act. This was further reaffirmed by the judgment of the Supreme Court in 2016, wherein it stated that the “respondent” can be anyone regardless of his/her gender. Domestic violence has been defined under Section 3 of the Act. It includes any act or omission or commission or conduct on the part of the respondent that –
harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or
harasses, harms injures or endangers the aggrieved person to coerce her or any other person related to her to satisfy any unlawful demand for dowry any other property or valuable security; or
has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Access to justice
On request from the aggrieved person or Protection Officer or service provider, the person in charge of the shelter home or of the medical facility must respectively provide shelter or medical aid to the aggrieved person. Any information regarding domestic violence, whether it has been committed or is being or is likely to be committed may be given to the concerned Protection Officer. For rendering such information, any person shall incur civil or criminal liability.
Duties of police officers, service providers, and Magistrate pertaining to providing information to the aggrieved person have been listed under Section 5.These include informing the aggrieved person –
of her right to file an application to seek relief by way of protection order, an order of monetary relief, custody order, residence order, a compensation order or more than one such order under this Act;
of the availability of services of service providers and Protection Officers;
Section 9 enumerates the duties and functions of Protection Officers. Some of these duties include –
Assist the Magistrate in the discharge of his functions.
Making a domestic incident report to the Magistrate and forward copies to the concerned police officer.
To ensure that the aggrieved person is provided with legal aid under the Legal Services Authorities Act, 1987.
To maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area.
To make available a safe shelter home and forward a copy of his report of having lodged such a person in a shelter home.
To get the aggrieved person medically examined and forward the medical report to the police station and the Magistrate having jurisdiction over the area where the incident of domestic violence has taken place.
To ensure that the order for monetary relief under Section 20 is complied with in accordance with the Code of Criminal Procedure.
Application to seek any relief under the Act has to be made before the Magistrate for it to be entertained and not the family court.The Magistrate must consider any report of domestic violence received by him from the Protection Officer or any service provider before passing such an order.
The Magistrate shall fix the first date of hearing which shall not be beyond three days from the date of receipt of such application.Such application must be disposed of within sixty days from the date of the first hearing. The notice of fixing the date of the first hearing must be given to the Protection Officer, who shall get it served to the respondent or any other person within a maximum of two days or any such reasonable time as allowed by the Magistrate. A declaration of service of notice by the Protection Officer shall be proof that such notice has been served unless the contrary is proved.
A Protection Order may be passed by the Magistrate after hearing the parties and after it has been established that there is a prima facie case for domestic violence, whether it has taken place or is likely to take place. Such protection order may prohibit the respondent from –
committing any act of domestic violence;
aiding or abetting in the commission of acts of domestic violence;
entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or by electronic or telephonic contact;
alienating any assets, operating bank lockers or bank accounts used , held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the Magistrate’s leave;
causing violence to the dependants, other relatives or any person who safeguards the aggrieved person against domestic violence;
committing any other act as specified in the protection order.
The duration of such a protection order shall be till the aggrieved person applies for a discharge.An application can be made by the aggrieved person or the respondent to the Magistrate and on being satisfied with the change in circumstances may alter, revoke or modify any order under the Act. The reasons for the same must be recorded.
The residence orders may entail the following stipulations. It may –
Restrain the respondent from dispossessing or in any manner disturbing the possession of the aggrieved person from the shared household, irrespective of whether the respondent has a legal or equitable interest in the shared household;
Direct the respondent to remove himself from the shared household;
Restrain the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
Restrain the respondent from alienating or disposing of the shared household or encumbering the same;
Restrain the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
Direct the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same if the circumstances so require:
The claim for alternative accommodation can only be made against the husband and not against in-laws or other relatives. The wife’s entitlement to claim a right to reside in a “shared household” would only mean a house belonging to or taken on rent by the husband or a house which belongs to the joint family of which husband is a member.Further, to ensure an efficient upholding of the basic intent of this legislation the wife can legitimately stop the husband from entering the premises of the house under PWDVA.
To ensure the safety of the aggrieved person or her child, the Magistrate may pass any order or impose conditions that he deems necessary. The order may also be passed directing the police officer of the nearest police station to give protection to the aggrieved person or assist her in making an application for implementation of the order. The respondent may also be required to execute a bond, with or without sureties to prevent the commission of domestic violence.The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan any other property or valuable security to which she is entitled. Concerning the financial needs and resources of the parties, the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments.
Section 24 stipulates that copies of the orders passed by the Magistrate must be given free of cost to the parties and other functionaries like the police officer in charge or any service providers.
To ensure that both the aggrieved and the accused do not share a household, provision of residence orders is entailed under Section 19. The order can be passed –
Restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from a shared household or alienating or disposing off shared household or encumbering the same.
Directing the respondent to remove himself from the shared household.
Restraining the respondent or his relatives from entering the portion of the house where the aggrieved women reside.
Restraining the respondent from renouncing rights in the shared household except with the leave of the Magistrate.
Directing the respondent to arrange for alternative accommodation for the aggrieved person and paying the rent for the same, as may be required. However, it is pertinent to highlight at this juncture to get relief on the ground that the applicant lives or has lived in the shared household, courts in other countries have considered certain factors as important. For instance, the commitment of the parties to a shared household; a significant period of cohabitation; the nature of financial and other dependencies between the parties including significant mutual financial agreements vis-a-vis the household; having a child out of the relationship; the role of parties in maintaining the household and caring for the children.
Assistance
Voluntary associations and companies that are involved in protecting the rights and interests of women by providing legal aid, medical, financial, or other assistance can get themselves registered as service providers under the Act. These service providers have been given the power to –
Record the domestic incident report.
Get the aggrieved person medically examined.
Provide shelter to the aggrieved person.
The Magistrate may also direct respondent or aggrieved person to, either singly or jointly, undergo counseling with any member of a service provider.
Under Section 12, any relief provided under the Act can be sought by the aggrieved or anyone on her behalf by presenting an application before the Magistrate.The form and particulars of such application must be as prescribed. The format for various applications has been provided in Annexure B.
As mentioned earlier, on request from the aggrieved person or Protection Officer or service provider, the person in charge of the shelter home or the medical facility must provide shelteror medical aid to the aggrieved person.
Protection officers shall also have the duty to maintain a list of all service providers providing legal aid ,counselling, shelter homes and medical facilities in a local area.
For the better fulfilment of the aims and objectives of this Act, the Honourable Supreme Court has bestowed the Courts with certain duties under whose shadow they are bound to act while dealing with the complaints under this Act. Inter alia they include;
To scrutinize the facts from all angles even when the plea advanced by the respondent to nullify the grievance of the aggrieved person is legally sound and correct.
The court of law is bound to uphold the truth which sparkles and ensure justice is done. Therefore it must pronounce the decision keeping in mind that the helpless aggrieved person has approached the court in compelling circumstances.
Before rejecting a petition on the grounds of maintainability the court must see that the aggrieved person is not faced with a situation of non-adjudication.
Restitution
By way of application to the Magistrate, the aggrieved person may also secure an order for compensation and damages for injuries including mental torture, emotional distress, caused by the acts of domestic violence committed by the respondent. Any other order may also be passed with additional conditions or directions by the Magistrate.A copy of the order for monetary relief should be sent to the parties and the in charge of the police station.
Such monetary relief may have been determined to meet the expenses perpetrated by loss of earnings, destruction, damage, or removal of any property from the control of the aggrieved person, medical or maintenance expenses for the aggrieved person and her children.
This monetary relief should be adequate, fair and reasonable, and consistent with the standard of living of the aggrieved. For maintenance lump sum payments or monthly payments may be ordered as the case requires. If the respondent fails to make the payment, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit before the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, the amount may be adjusted towards the monetary relief payable by the respondent.
Compensation
By way of application to the Magistrate, relief in the form of issuance of an order for payment of compensation or damages. This right is available without any prejudice to institute a suit for compensation or damages.
Conclusion
My primary goal in writing this article was to examine the legal framework that is in place to safeguard the rights of an aggrieved person under the Protection of Women from Domestic Violence Act, as well as to shed light in the manner of recompense or anything else that the aggrieved person ought to have received while they were with their husbands’ cum-abusers. From what I’ve learned about this topic, I’ve come to the conclusion that the current situation, and indeed the requirement of the hour, is to educate women about their rights, which will allow them to seek the best way forward rather than simply being helpless in their homes. Furthermore, the parasitic affliction that must be avoided is the inefficient enforcement of laws, which is annihilating the efficacy of the foundation of law upon which the populace’s reliance is based, at a very slow rate. As a result, the current path must be revised following a detailed and dynamic inspection that is the need of the hour.
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: https://t.me/joinchat/L9vr7LmS9pJjYTQ9
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an overview of the dispute resolution mechanism of cyber laws in India.
Cybercrime, such as phishing, identity theft, and fraud, has increased dramatically in recent years. India had a 37 percent increase in the number of cyberattacks in the previous year alone. Cybercrime is anticipated to become more prevalent in the future. This emphasises the need for more effective and deterrent legal structures, as well as stricter legislation, to combat cybercrime. In this situation, it becomes intriguing, if not vital, to examine the country’s existing cybersecurity legislation to see if they provide adequate protection against these crimes. The present article discusses cyber laws in India thereby specifically throwing light on dispute resolution mechanisms under the Information Technology Act, 2000 (IT Act, 2000).
Cyber laws in India : an insight
Cyber regulations are especially important in nations like India, where the internet is widely utilised. Cyber laws are in place to regulate the digital exchange of information, software, information security, e-commerce, and monetary transactions. India’s cyber laws have paved the way for electronic commerce and electronic governance in the nation, as well as increased the scope and use of digital media, by ensuring optimum connection and reducing cybersecurity risks. But there are several detriments that walk along with the existing laws as well. There are predominantly four cyber laws that India embraces:
Information Technology Act, 2000 : The Information Technology Act, which was enacted in 2000, governs Indian cyber legislation. The main goal of this Act is to provide eCommerce with trustworthy legal protection by making it easier to register real-time information with the government. However, as cyber attackers became more cunning, coupled with the human predisposition to misuse technology, a number of adjustments were made.
Companies Act, 2013 : The Companies Act, 2013 gave the SFIO (Serious Frauds Investigation Office) the authority to prosecute Indian corporations and their directors on account of cyber frauds. SFIOs have also become much more stringent and harsh in this area after the promulgation of the Companies Inspection, Investment, and Inquiry Rules, 2014. All regulatory compliances, including cyber forensics, e-discovery, and cybersecurity diligence, are well-covered by the law. The Companies (Management and Administration) Rules, 2014 establishes robust requirements for corporate directors and executives in terms of cybersecurity obligations and responsibilities.
Indian Penal Code (IPC), 1860 : The Indian Penal Code (IPC), 1860, along with the Information Technology Act, 2000 are both used to prosecute identity theft and related cyber offences. False documentation (Section 464), forgery (Section 465), forgery pre-planned for defrauding (Section 468), reputation harm (Section 469) and presenting a forged document as real (Section 471), are the main provisions of the IPC that concern cyber scams.
Cybersecurity Framework (NCFS) : The most trusted worldwide certifying organization, the National Institute of Standards and Technology (NIST) has approved the Cybersecurity Framework (NCFS), which provides a standardized approach to cybersecurity. The NIST Cybersecurity Framework includes all necessary rules, standards, and best practices for effectively managing cyber-related risks. The flexibility and cost-effectiveness of this system are top priorities.
Among the aforementioned laws, the Informational Technology Act, 2000 remains much in discussion owing to being the only data protection law India carried with it for several years now. When we talk about the dispute resolution mechanism, it is this Act that comes into the discussion, as for others, general civil and criminal procedures are abided by.
Dispute resolution mechanism under the IT Act, 2000
The Information Technology Act, 2000 establishes quasi-judicial bodies, such as adjudicating officials, to resolve disputes (offences of a civil nature as well as criminal offences). The adjudicating officer has the jurisdiction to award compensation as a civil remedy as well as impose fines for violating the Act, giving them civil and criminal court-like powers. The Cyber Appellate Tribunal is the first level of appeal, with a Chairperson and any additional members appointed by the Central Government. A second appeal may be lodged with a High Court having jurisdiction within 60 days after the Cyber Appellate Tribunal’s ruling has been communicated.
The adjudicating officer
The Central Government appoints an “Adjudicating Officer” (AO) with the authority to make decisions. The secretary of each state’s department of information technology is designated as the AO for that state by default, according to the Ministry of Electronics and Information Technology (“MeitY”). The AO is a quasi-judicial entity since it has the ability to:
Order investigation, i.e. hold an inquiry into a breach of the IT Act, 2000 based on the evidence presented to it; and
Adjudicate, i.e. determine the amount of compensation or punishment to be awarded in the event of a violation.
The adjudication process as provided by the IT Act, 2000
The adjudication process as provided by the Information Technology Act, 2000 has been discussed in pointers hereunder:
Filing of the complaint to the AO.
Notice to the necessary parties containing the date and time of the first hearing is issued by the AO.
On the date provided in the notice, the AO explains alleged contraventions to the party against whom allegations are made. The three possible instances that can take place subsequent to this are provided below:
The person against whom the allegation is made pleads guilty, or
The person against whom the allegation is made shows cause why an inquiry should not be held against him/her, or
The person against whom the allegation is made fails to appear. In that case, the AO proceeds with the inquiry in absence of such a person.
If the situation in point (a) happens, then the consequence will be the imposition of penalty or awarding of compensation as per the provisions of the IT Act, 2000, by the AO.
If the circumstance provided in point (b) unfolds itself, the outcomes are:
The AO decides on the basis of submission of parties and/or preliminary investigation in order to determine whether there is sufficient cause to order an inquiry or not. The AO will fix another date for production of documents or evidence and then finally pass an order on the basis of the evidence presented.
The AO dismisses the complaint on finding no sufficient cause to proceed with it.
The AO has jurisdiction over cases in which the claim for compensation or harm is less than INR 5 crore. The AO has the authority to order an investigation into a complaint at any time after receiving it. An officer from the Office of the Controller of Certifying Authorities, or (CERT-In), or a Deputy Superintendent of Police conducts the inquiry.
Cyber Appellate Tribunal
Sub-clause (1) Section 58 of the IT Act, 2000 states that the Cyber Appellate Tribunal is not bound by the Code of Civil Procedure, 1908, but rather by the principles of natural justice, and the Cyber Appellate Tribunal has the authority to regulate its own procedure, including the location of its hearings, subject to the other provisions of this Act and any rules.
Clause (2) Section 58 provides that the Cyber Appellate Tribunal shall have the same powers as a civil court under the Code of Civil Procedure, 1908, when trying a case, for the purposes of carrying out its tasks under this Act:
Having any person summoned and compelled to appear, as well as questioning him under oath;
Requiring documents or other electronic records to be discovered and produced;
Receiving evidence on affidavit;
Appointing commissions to examine witnesses or documents;
Reconsidering its decisions;
Dismissing an application due to default or making an ex parte decision;
Any additional matter that the court may deem necessary.
Clause (3) Section 58 provides that any proceeding before the Cyber Appellate Tribunal is to be treated as a judicial proceeding for the purposes of Sections 193 and 228 of the Indian Penal Code, 1860, and the Cyber Appellate Tribunal is treated as a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
High court
According to Section 62 of the IT Act, 2000, a person aggrieved by the decision or order of the Cyber Appellate Tribunal, may file an appeal with the high court within sixty days of receiving notification of the Tribunal’s decision or order on any question of fact or law arising out of such order. If the high court is satisfied that the appellant was prohibited from filing the appeal within the prescribed time frame due to adequate reason, the high court may allow it to be filed within an extended sixty-day period.
The ineffective dispute resolution mechanism of cyber laws in India
Although the framework of the dispute resolution mechanism of cyber law, as discussed previously, appears to be promising in principle, it has not shown to be effective in practice. There is very little coverage of a cyber dispute, and no statistics on the number of cases adjudicated by police or the tribunal are accessible. The possible lacunas feeding on the resolution mechanism have been presented below:
The AOs are vested with humongous powers. They have the authority to rule on any law, rule, regulation, or instruction made under the IT Act of 2000. At the same time, there are several AOs dealing with identical challenges. As a result, there are opposing viewpoints on the same subject. For example, in Rajendra Prasad Yadav v. ICICI Bank (2011), the AO concluded that because the bank constituted a corporate body, Section 43 of the IT Act did not apply to it. AOs in other states, on the other hand, have reached different conclusions. Section 43 has been used against corporations in a number of situations. This might make it difficult for an organization to comply with the IT Act, 2000 since it may need to take into account the opinions of various AOs in order to operate across India.
To get adjudication orders issued under the IT Act, 2000, one must seek through state government websites that are difficult to browse. This issue is also not reported in prominent legal databases. Adjudication orders should be stored in a central database so that officers and other stakeholders would be able to resort to these adjudication orders when dealing with IT Act, 2000 infractions. It will also allow companies to keep track of cyber-conflicts.
By virtue of an old MeitY Order from 2003, the secretaries of state departments of information technology were supposed to be AOs. In addition to completing their responsibilities as AOs, they are responsible for the administration of their department and are actively involved in the co-working of the government of the state they are appointed in. The dual nature of their employment is incredibly taxing. Given the rising number of cyber-crimes in the country, it is necessary to restructure the system for appointing AOs.
The capacity of AOs has to be increased. The United Kingdom’s Crown Prosecution Service has formulated the ‘Cybercrime-prosecution guidance’ which lays down major types of cybercrime, such as hacking and social media-related offences, and therefore serves as a guideline for deciding on cybercrime cases. In India, similar guidance should be formulated and implemented to ensure better complaint management.
There is no guiding document on the cyber investigation or cyber forensics in the Indian regulatory environment. The “Examiner of Electronic Evidence” was formed by the Information Technology (Amendment) Act of 2008. This organization offers professional advice on electronic evidence. Various forensic science laboratories have been appointed as examiners by the MeitY. These labs are well-versed in the field of cyber-investigation. The 2003 Holding of Enquiry Rules, on the other hand, have not been amended since the 2008 amending legislation. The regulations must be changed to allow AOs to require such examiners to look into the issues before them in a better and efficient way. To better equip the police and other investigative authorities to handle such instances, rules or principles on cybercrime investigation should be established.
The TDSAT is solely made up of a chairperson and two additional members, as provided by the TRAI Act, 1997. Because telecom and information technology are two distinct areas, deciding between them necessitates a different set of skills. To deliberate on matters relevant to the issue, the TDSAT must strengthen itself and include specialists with expertise in information technology. Cyber appeals should be decided by a different bench for effective solutions to cyber challenges.
Conclusion
Given the high number of cyber-attacks in the country, it is imperative that the present dispute resolution structure under the IT Act, 2000 be strengthened. By requiring cyber violators to pay damages and compensation, the dispute resolution structure can serve as a strong deterrence. It may also be used as a venue for victims to file complaints and seek redress. It has failed to produce the desired outcome in its current state. The IT Act’s authorities are responsible for a wide range of concerns, including cybersecurity, intermediary responsibility, data privacy, and cyber offences. As a result, these authorities must be well-equipped to carry out their broad powers.
The government has emphasized its Digital India plan, which is expected to help India achieve its aim of being a $5 trillion economy by 2025. In addition, India has a big internet user base of 650 million people. Given India’s push for digital transformation, it’s critical to give the Act some teeth, particularly in terms of its dispute resolution mechanism. This will guarantee that online conflicts are efficiently managed and resolved. The general public, as well as stakeholders, will have more faith in the regulatory structure as a result of this.
This article is authored by Akash Krishnan, a student of ICFAI Law School, Hyderabad. It discusses in detail the process of recruitment and promotion of law teachers in India and the salary accorded to them according to the 7th pay commission as prescribed by the UGC.
To become eligible for the post of Assistant Professor, an individual has to fulfill one of the following criteria:
Criterion 1
A Master‘s degree with 55% marks in a law subject from an Indian University or an equivalent degree from an accredited foreign university.
The individual should clear the National Eligibility Test (NET) conducted by the University Grants Commission (UGC) or the Council of Scientific and Industrial Research (CSIR), or a similar test accredited by the UGC, like SLET/SET.
The individual possessing a Ph.D. degree in accordance with the UGC Regulations may be exempted from clearing the aforesaid examinations, provided the individual has begun with the Ph.D. program before July 11, 2009.
Also, Ph.D. candidates can be exempted from the aforesaid examinations if they meet the following conditions:
The Ph.D. degree has been awarded in a regular mode.
The Ph.D. thesis has been evaluated by at least two external examiners.
An open Ph.D. viva voce of the candidate has been conducted.
The candidate has published two research papers from his/her Ph.D. work, out of which at least one is in a refereed journal.
The candidate has presented at least two papers based on his/her Ph.D. work in conferences that are sponsored by the UGC, ICSSR, CSIR, or any other similar agency.
Whether or not these conditions are met has to be decided by the Registrar or the Dean of Academic Affairs of the concerned University.
Criterion 2
The Ph.D. degree has been obtained from a foreign university that has been ranked among the top 500 in the World University Rating by any of the following bodies at any point in time:
Quacquarelli Symonds (QS),
The Times Higher Education (THE),
The Academic Ranking of World Universities (ARWU) of the Shanghai Jiao Tong University (Shanghai).
Associate Professor
Eligibility
A Ph.D. degree in the concerned subject of law and a good academic record.
A Master‘s degree with 55% marks in a law subject.
Minimum teaching or research experience: 8 years
Research paper publications: At least 7 publications in a peer-reviewed UGC-listed journal with a total research score of 75.
Professor
Eligibility
To become eligible for the post of Professor, an individual has to fulfill one of the following criteria:
Criterion 1
The individual should possess a Ph.D. degree and should have published a minimum of 10 high-quality research publications in peer-reviewed or UGC-listed journals with a total research score of 120. The individual should also possess a minimum of 10 years of teaching experience in a university or college as an Assistant Professor, Associate Professor, Professor, and/or research experience at an equivalent level and the individual should have guided at least one doctoral candidate.
Criterion 2
An outstanding professional who has a Ph.D. degree in the relevant legal subject and the individual should have made a significant contribution to increasing the knowledge in the concerned legal subject. Along with these qualifications, it is necessary that the individual possesses at least 10 years of teaching experience.
Senior Professor in Universities
In every concerned university, at most 10% of the existing Professors in the University should be appointed as Senior Professors.
Eligibility
An outstanding professional and has published multiple high-quality research publications in peer-reviewed or UGC-listed journals.
A minimum of 10 years of teaching and/or research experience as a Professor or an equivalent grade in a national level university.
The selection committee should comprise three subject experts, not below the rank of a Senior Professor or a Professor having at least 10 years of experience.
The selection criterion to be followed by the committee is two-pronged. Firstly, they should review the 10 best publications in peer-reviewed or UGC-listed journals, and secondly, there should have been at least two doctoral candidates who have been guided by the individual in the last 10 years.
Vice Principal
Eligibility
A minimum of 15 years of teaching and/or research experience as a Professor/Associate Professor or an equivalent grade in a national level university.
College Principal and Professor
Eligibility
A Ph.D. degree.
A minimum of 15 years of teaching and/or research experience as a Professor/Associate Professor or an equivalent grade in a national level university.
At least 10 research publications in peer-reviewed or UGC-listed journals with a minimum research score of 110.]
Promotion of Law Professors under the Career Advancement Scheme (CAS)
Assistant Professor, Entry Level to Assistant Professor, Senior Scale
Eligibility
The individuals who are holding the posts of Assistant Professors are eligible for the promotion, provided they meet the following qualifications:
Have a Ph.D. degree in law along with a minimum teaching experience of 4 years.
Have a PG degree in law along with a minimum teaching experience of 5 years.
Have no Ph.D. or PG degree in law but have teaching experience of over 6 years.
Along with the aforesaid qualifications, the individual should have attended one orientation course of 21 days on teaching methodology and should have completed one of the following courses:
One Refresher / Research Methodology course; or
Any two of the following: Workshop, Syllabus Up-gradation Workshop, Training Teaching-Learning Evaluation, Technology Programmes, and Faculty Development Programmes of at least one week (5 days) duration or completed one MOOCs course (with e-certification) or development of e-contents in four-quadrants / MOOCs course during the assessment period.
CAS Promotion criterion
The individual shall be promoted if he/she gets a satisfactory or good grade in the annual performance assessment reports of at least three/four/five of the last four/five/six years of the assessment period. The promotion is recommended by the screening-cum-evaluation committee.
Assistant Professor, Senior Scale to Assistant Professor, Selection Grade
Eligibility
Only those Assistant Professors are eligible who have completed five years of service as an Assistant Professor, Senior Scale.
The Assistant Professor should have completed any two of the following in the last five years: Completed courses/programs from among the categories of Refresher courses/Research Methodology course/Workshops/Syllabus Up-Gradation Workshop/ Teaching-Learning-Evaluation/ Technology Programmes/Faculty Development Programme/ Syllabus Up-gradation Workshop/ Teaching-Learning Evaluation/ Technology Programmes/Faculty Development Programmes of at least two weeks (ten days) duration (or completed two courses of at least one week (five days) duration in lieu of every single course/program of at least two weeks (ten days) duration); or
Completed MOOCs course in the relevant subject (with e-certification), contribution towards development of e-content in 4-quadrant (at least one quadrant) minimum of 10 modules of a course/contribution towards the development of at least 10 modules of MOOCs course/contribution towards conducting a MOOCs course during the period of assessment.
CAS Promotion Criteria
An Assistant Professor shall be promoted if he/she gets a satisfactory or good grade in the annual performance assessment reports of at least four of the last five years of the assessment period and the promotion is recommended by the screening-cum-evaluation committee.
Assistant Professor, Selection Grade to Associate Professor
Eligibility
Only those Assistant Professors are eligible who have completed five years of service as an Assistant Professor, Selection Grade, and have a Ph.D. degree in law.
The Assistant Professor should have completed any two of the following in the last three years:
A course/program from amongst the categories of Refresher courses/ Methodology Workshop/Syllabus Up-gradation Workshop/ Teaching Learning-Evaluation Technology Programme/ Faculty Development Programme of at least two weeks (ten days) duration (or completed two courses of at least one week (five days) duration in lieu of every single course/program of at least two weeks (ten days) duration); or completed one MOOCs course (with e-certification).
A contribution towards development of e-contents in 4-quadrant (at least one quadrant) minimum of 10 modules of a course/contribution towards the development of at least 10 modules of MOOCs course/ contribution towards the conduct of a MOOCs course during the period of assessment.
CAS Promotion Criteria
An Assistant Professor shall be promoted if he/she gets a satisfactory or good grade in the annual performance assessment reports of at least two of the last three years of the assessment period and the promotion to the post of Associate Professor is recommended by the selection committee in accordance with these Regulations.
Associate Professor to Professor
Eligibility
Only those Assistant Professors are eligible who have completed three years of service as an Associate Professor, have a Ph.D. degree in law, have minimum 10 publications in UGC-listed or peer-reviewed journals out of which at least three should be published in the assessment period. The research work should have a minimum research score of 110.
CAS Promotion Criteria
An Assistant Professor shall be promoted if he/she gets a satisfactory or good grade in the annual performance assessment reports of at least two of the last three years of the assessment period and the promotion to the post of Professor is recommended by the selection committee constituted in accordance with these Regulations.
Professor to Senior Professor
Eligibility
Only those Professors are eligible who have at least 10 years experience as a Professor and at least 10 publications in peer-reviewed or UGC-listed journals and he has guided at least 2 candidates towards achieving their respective Ph.D. degrees during the assessment period.
CAS Promotion Criteria
A Professor is eligible for the promotion if, based on academic achievement, the Professor receives a favorable review from three eminent subject-experts who are not of the rank lower than the rank of a Senior Professor or a Professor having at least ten years of experience. The selection shall be based on the 10 best publications during the last 10 years and interaction with a Selection Committee constituted in accordance with these Regulations.
Assessment criteria by the Selection or the Screening Committee
The assessment for the CAS Promotion schemes is based on the following parameters:
Teaching-Learning and Evaluation
This is determined based on characteristics like being regular to class, punctuality to class, remedial teaching and clarifying doubts within and outside the class hours, counseling and mentoring, additional teaching to support the college/university as and when the need arises, etc. Examination and evaluation activities like performing of examination supervision duties, question-papers setting for university/college examinations, participation in the evaluation of examination answer scripts, conducting examinations for internal assessment as per the schedule to be announced by the institution at the beginning of each Academic Session and returning and discussing the answers in the class.
Personal development related to teaching and research activities
Attending orientation/refresher/methodology courses, development of e-contents and MOOCs, organising seminar/ conference/workshop/presentation of papers and chairing of sessions/guiding and carrying out research projects and publishing the research output in national and international journals, etc.
Administrative support and participation in students’ co-curricular and extra-curricular activities
Being part of the administrative activities of the university, i.e., being part of the preparation of syllabus, organising college events, accompanying students for extra-curricular activities to other universities, etc.
Assessment process
The process for assessment is based on a three-pronged approach:
Step 1
The university teachers shall submit to the university an annual self-appraisal report at the end of every academic year and provide documentary evidence for the claims made thereunder. The same has to be verified by the HOD/Teacher-in-charge, etc.
Step 2
If the teacher fulfills the qualifications for promotion, he/she shall submit an application for promotion under CAS.
Step 3
Granting of CAS promotion based on the established criterion.
Promotion and salary scheme of law professors under the 7th pay commission scheme
Pay band 15,600-39,100 37,400-67000
Grade Pay
6000
7000
8000
9000
10000
Rationalised Entry Pay based on Academic Level
Academic Level
10
11
12
12A
14
Assistant Professor, Entry Level
77,500
92,600
1,07,200
1,70,500
1,93,300
Assistant Professor, Senior Scale
79,800
95,400
1,10,400
1,81,800
1,99,600
Assistant Professor, Selection Grade
82200
98000
113700
197300
205000
Associate Professor
84700
101200
117100
192900
211800
Professor
87200
104200
120800
198700
218200
Senior Professor
89600
107300
124200
204700
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of 10 crimes that shook the entire nation in 2020.
Crime is the result of a number of interconnected variables. The social processes and structures are the root causes of criminal conduct. People commit crimes as a result of a socialization process that does not generate a strong sense of good and wrong, and as a result of developing possibilities, expanding desires, and a strong urge to turn to crime to satisfy these goals. The interaction of many social, economic, demographic, geographical, and institutional elements may be traced back to the origins of crime. As per the National Criminal Records Bureau, a total of 66,01,285 cognizable crimes comprising 42,54,356 Indian Penal Code (IPC) crimes and 23,46,929 Special & Local Laws (SLL) crimes were registered in 2020. It shows an increase of 14,45,127 (28.0%) in registration of cases over 2019 (51,56,158 cases). The crime rate registered per lakh population has increased from 385.5 in 2019 to 487.8 in 2020.
The COVID-19-related disruption also resulted in a 28 percent rise in case of registration in 2020 compared to 2019, owing to a 21-fold increase in cases involving disobedience to a properly issued public servant order and over four times in instances involving breaches of other states local legislation. India had one of the strictest curfews in the world, with law enforcement imposing strictures on physical separation to the nth degree. Some sorts of crimes, such as murders, are exempt from the registration requirement, with just a 1% rise in 2019 compared to the previous year. Worryingly, while the number of reported economic offences has decreased by 11.8 percent since 2019, cybercrime has increased by 11.8 percent. The rise in cybercrime is concerning, as it necessitates more stringent law enforcement, as witnessed even in highly developed civilizations. Sedition has increasingly been used as a weapon to stifle dissent and this trend needs to be reversed urgently. This article discusses 10 horrific crimes that took place in 2020.
10 crimes that shook the entire nation in 2020
A set of ten spine-chilling crimes that took place in the year 2020 have been detailed hereunder.
Hathras rape case
With the caste divide remaining a deep-rooted issue in Indian society, there are several crimes that are taking place in India in the name of caste. On 14th September 2020, a 19-year-old girl hailing from Hathras, Uttar Pradesh was brutally gang-raped and assaulted by four men belonging from an upper-caste, leaving her with a broken spine, bleeding, and vomiting blood. On September 29, the victim died as a result of her injuries. A protest erupted inside Safdarjung Hospital following her death. This dharna included members of the Congress party as well as the Bhim Army, led by Chandrashekhar Azad, who demanded harsh punishment for the culprits. The victim’s relatives also claimed that the police were attempting to dispose of the victim’s remains in secrecy. The corpse of the victim, as well as his father and sibling, were returned to Boolgarhi village after a day-long protest. The family had received Rs 2.5 Million from the UP state government, under the Victim Compensation Scheme which allows financial compensation to be given to families of victims of crimes including murder and rape.
Rape as a crime under the eyes of the law
Every year, the National Crime Records Bureau (NCRB) publishes an annual report detailing the statistics on crimes against women in India. Rape is one of the most prevalent crimes perpetrated against women in India, according to the survey. The IPC defines rape as a crime under Section 375 of the Indian Penal Code, 1860. Because deterrence is insufficient for such a horrible act in India, the same has failed to discourage the crime. Rape incidents are increasing every day in India, with the bulk of them being undetected. It is critical to educate our society on their legal rights and responsibilities, as well as to raise awareness.
Judicial interference and the outcome in the Hathras rape case
The horrifying case reached the Supreme Court of India by means of Criminal Writ Petition that was filed by the petitioner that raised concerns about the way a 19-year-old girl from Hathras, Uttar Pradesh, was allegedly raped and severely attacked that resulted in her death, followed by the inhuman manner in which she was cremated. The victim’s parents, two brothers, one sister-in-law, and grandmother, who live in village Chandpa, district Hathras, Uttar Pradesh, were provided with a three-tiered security system to remain safeguarded from upper caste people in the village. The security included;
Armed Constabulary Component,
Civil Police Component, and
The installation of CCTV cameras/lights.
The Supreme Court granted the Allahabad High Court the authority to supervise all parts of the case, including the CBI investigations. While hearing petitions for a court-supervised inquiry into the matter, the Supreme Court of India also stated that a plea to move the trial out of Uttar Pradesh “has been left open” till the investigation is concluded.
Vikas Dubey encounter
Vikas Dubey was slain in an ‘encounter’ on July 10, 2020. He and members of his gang had ambushed a police squad on its way to arrest Dubey a week previously. The ambush resulted in the deaths of eight police officers. In the days that followed, the Uttar Pradesh police executed five of Dubey’s friends in three separate encounters. Dubey was apprehended in Ujjain and surrendered to the Uttar Pradesh police. On July 10, he was slain in a shootout. According to the police, the car in which Dubey was travelling crashed, and the criminal then grabbed a revolver from a police officer and attempted to leave. He also shot at the police squad, which retaliated in self-defence.
What is an encounter and why is it a crime
‘Encounter’ is a euphemism for extrajudicial executions involving the military forces, notably in India. It entails combining the functions of an investigator, adjudicator, and executor into a single person, namely the relevant police officer. In the 1990s and early 2000s, the Mumbai Police Department employed encounter murders to wage battle against the city’s underbelly. This practice of ‘rapid justice’ quickly spread to other major cities. The most typical justification for false encounters is that the legal system is sluggish and that obtaining convictions against persons who can silence witnesses is difficult. What has hindered individuals and governments from altering the legislation throughout these years to allow for faster justice, adequate evidentiary procedures, and witness protection? Why are we still carrying the corpses of the Criminal Procedure Code, 1973 and the Evidence Act, 1872? The willful inability to change the court system cannot be used as an excuse to instead use “illegal shortcuts.” We must do justice to the sacrificed cops and dead civilians, but not at the expense of others. Under populist pressure, the rule of law cannot be buried. The State must follow the law, it cannot be permitted to create its own set of rules.
Role of the judiciary in the Vikas Dubey encounter case
The three-member judicial commission, led by former Supreme Court judge B.S. Chauhan and including former Allahabad High Court judge Sashi Kant Agrawal and former Uttar Pradesh Director General of Police, K.L. Gupta, was set up to investigate the killing of gangster Vikas Dubey in July 2020. It found enough evidence to show that the gangster was patronized by local police, revenue, and administrative officials. The report was presented to the government in April 2021, but it was not tabled before the Uttar Pradesh legislature until August 19th, 2021. The report laid down the following points:
Anyone who filed a complaint against Vikas Dubey or his colleagues was treated with contempt by the police. Even if higher authorities ordered the complaint to be filed, the parameters were set by the local police.
Vikas Dubey and the gang were never subjected to a fair investigation in any case brought against them. Before submitting the charge sheet, sections pertaining to significant offences were removed. During the trial, the majority of the witnesses become hostile. Due to the lack of substantial opposition from state officials and government counsel, Vikas Dubey and his accomplices were able to get bail orders from the courts swiftly and easily. State officials never thought it was necessary to hire a special prosecutor to handle his case. The state never filed an application for bail cancellation or contacted the superior court to have any of the bail orders cancelled.
The intelligence agency in Kanpur was completely unsuccessful in gathering information on Dubey’s illicit activities and possession of sophisticated weapons. There was no sufficient precaution taken in preparation for the raid, and none of the officers wore bulletproof vests. Only 18 of them possessed weapons, the remainder were either unarmed or armed with sticks.
After performing a normal inquiry and passing relevant orders against those found guilty, the panel recommended disciplinary procedures against “erring public workers” who conspired with Dubey for “loss of records, notably the record of instances connected to Vikas Dubey.”
The investigation also exonerates Dubey’s maternal uncle Prem Prakash, his assistant Atul Dubey, Amar Dubey, Pravin Kumar Dubey, and Prabhat Mishra, who was slain in the encounters. The injuries experienced by the police officers involved in these incidents “did not appear to be self-inflicted,” according to the investigation panel, while the injuries suffered by the accused “were on non-vital areas of their bodies.”
Palghar mob lynching
On April 16, 2020, two sadhus, Kalpavriksha Giri Maharaj (70 years), Sushil Giri Maharaj (35 years), and their driver Nilesh Telgade (30 years), were mercilessly lynched in the Gadchinchale hamlet in Palghar district’s Dahanu tehsil, around 120 kilometres from Mumbai’s centre. The two sadhus hailed from Nashik and belonged to the Shri Panch Dashnam Juna Akhara, India’s largest sadhu order, which is centred in Varanasi. A few days before the occurrence of the horrific incident, rumours had been circulated in the village that bandits had come to the village with the intent of stealing kidneys, particularly those of minors, and selling them in the black market. As a result, the villagers established a 24-hour vigil. A mob of approximately 500 villagers attacked the sadhus and their driver, believing them to be kidnappers. The case was turned up to the state’s criminal investigation division, which conducted the inquiry. The Palghar police and later the state-CID apprehended a total of 251 suspects. The accused include 13 juveniles. More than 70 of the accused are still in custody. Devendra Fadnavis, the Maharashtra Leader of Opposition, and Yogi Adityanath, the Chief Minister of Uttar Pradesh, both urged a high-level investigation into the event shortly after it occurred. In 2020, the Maha Vikas Aghadi administration said that the BJP was engaging in “communal politics” over the event amid lockdown due to an increase in COVID-19 cases.
Mob lynching : an insight
Mob lynching is an extrajudicial execution in which a group of people kills someone who has been suspected of committing a crime, yet it is a stain on our legal system. It shows folks who do not trust the law and believe they are above the law, empowering themselves to punish someone accused, rendering the entire judicial system ineffective and weak. The group that believes they are capable of punishing someone solely on the basis of their assumptions is intolerant, and such acts should be strictly prohibited as they go against the principles of rule of law. The occurrence of such instances is a violation of Article 21 of the Indian Constitution, which guarantees the Right to Life and Liberty. Despite the fact that the Protection from Lynching Act of 2017 was enacted to prevent lynchings from taking place, the Palghar mob lynching incident occurred. It is past time for the government to take action to avoid future events of this nature along with the effective implementation of robust jurisprudence.
The aftermath of the horrific crime
The videos that went viral clearly showed how the sadhus, who were being lynched brutally by the mob, hoped that the police would protect them from the same, but when the police themselves gave the sadhus and the driver to the mob, the sadhu lost all hope because the police had given them false assurances of protection. The police, as is obvious from the video, abandoned the sadhus and the driver to the crowd and failed to take appropriate measures to safeguard the victims. The public raised several questions, including why did the police not use force to stop the mob, despite the fact that the mob was an unlawful assembly under Section 141 of the Indian Penal Code, 1860, and the police were authorized to use the power under Section 129 of the Code of Criminal Procedure, 1973.
Ballabgarh daylight murder
On October 27, 2020, a 21-year-old lady was murdered in broad daylight outside her college in Ballabgarh, Haryana’s Faridabad district. During a botched kidnapping attempt that was caught on video, the incident occurred. When the event occurred, a woman named Nikita Tomar had just left her institution after taking an exam. The accused, who came in a car, attempted to drag the lady inside in the hopes of abducting her, but she fought, prompting one of the accused to shoot her. The heinous crime was caught on video. She was rushed to the hospital, but she died as a result of her injuries. Following the shooting of a 21-year-old student in broad daylight in Haryana’s Ballabgarh, a tremendous outcry erupted in Faridabad, demanding swift justice. A guy called Touseef, who is supposedly a friend of the victim, shot and killed Nikita Tomar outside the Aggarwal College in Faridabad’s Ballabgarh. According to the girl’s family members and relatives, Touseef had pressured Nikita Tomar to convert to Islam, and when she refused, he attempted to kidnap her. He killed her after failing to apprehend her. A few years ago, the victim was said to have filed a complaint against the accused as well.
The murder had been captured on stunning CCTV footage. The culprit could be seen stepping out of the automobile and drawing his pistol. Nikita was observed attempting to leave the situation and was able to avoid the assailant for a small period of time before being apprehended by him and shot at point-blank range. The assailant’s assistant is seen dragging him back into the car. They then ran away from the scene. According to Haryana Chief Minister ML Khattar, the offender was detained following an investigation.
Delhi Riots case
On February 22, over 1,000 protesters staged a sit-in protest near the Jafrabad metro station in Northeast Delhi, blocking a section of Seelampur-Jafrabad-Maujpur road as well as the metro station’s entrance and exit. The demonstration was said to be in support of the Bharat Bandh, which the Bhim Army had called for on February 23. Anti-Citizenship Amendment Act (CAA) and pro-CAA activists clashed in Northeast Delhi on the eve of February 23. Over the next ten days, the violence turned communal, resulting in the deaths of over 53 persons. Over 200 people were hurt. Shops and homes were set on fire, as well as places of worship. The events that led to the 2020 Delhi riots are provided hereunder:
Anti-CAA protests: In response to the passage of the Citizenship Bill, which paved the way for the grant of citizenship to Hindus, Sikhs, Parsis, Jains, Buddhists, and Christians who took refuge in Pakistan, Bangladesh, and Afghanistan in or before December 2014, protests began in Delhi and other parts of the country in December 2019.
2019 Attack on Jamia Millia Islamia students: During a fight with Delhi police on December 15, many Jamia Millia Islamia University students were hurt. Hundreds of police officers are said to have stormed the university campus and apprehended over a hundred students. Batons and tear gas were allegedly used to disrupt anti-CAA demonstrators. Over 200 individuals were injured and admitted to the All-India Institute of Medical Sciences (AIIMS) and Holy Family Hospital in Delhi for treatment.
Delhi Assembly Election 2020: Several political figures, particularly from the Bharatiya Janata Party (BJP), were observed employing inflammatory chants in the run-up to the Delhi elections on February 8, linking demonstrators to anti-national groups.
On February 27, Chief Minister of Delhi Mr. Arvind Kejriwal declared that the injured will receive free care in both government and private facilities. The administration had made plans with the support of non-governmental organizations to provide food and set up shelters in regions where a curfew had been enforced. He also promised affected persons a sum of Rs 10 lakh in compensation, Rs 1 lakh in ex-gratia, and Rs 5 lakh in the case of a minor’s death. People whose homes were entirely destroyed by fire resulting from the riots were promised urgent aid of Rs 25,000.
Is rioting an offence
Section 146 of the Indian penal Code, 1860 lays down the offence of rioting providing that use of force or violence by an unlawful assembly with a common objective would amount to the offence of rioting. What is subject to discussion with regards to riotings in India is the inability of the executive in handling the same with an aim to restore enforcement of rule of law and peace in the society. The Delhi riots sparked controversy about the government’s inability to handle the crisis, which lasted nearly five days. The Delhi Police has been chastised. They were ineffectual not just in averting the disturbances, but also in controlling the riots. Many video clips were distributed showing how the police failed to enter and manage the mayhem. The brutality was taking place right in front of their eyes. The major cause of the police’s ineptitude has been linked to reasons such as inexperience in dealing with riots and a lack of trust in the leadership. The cops were unable to analyze the situation. The police did not increase the number of policemen stationed in areas where such violence was common. The police response to the crisis was delayed, and it appeared that they were unwilling to suppress the violence.
The role of the judiciary with respect to the Delhi riots
In connection with the CAA-NRC protest, around 1,100 demonstrators have been arrested and 5,558 have been held in preventative custody under the Unlawful Activities (Prevention) Act. The Supreme Court has often said that courts must be aware of both sides of the spectrum, namely, their responsibility to guarantee appropriate criminal law enforcement and their responsibility to ensure that the law does not become a tool for targeted harassment.
The Delhi High Court on 15th June 2021 had granted bail to Asif Iqbal Tanha (Asif Iqbal Tanha vs State, 2021), Devangana Kalita (Devangana Kalita vs State, 2021), and Natasha Narwal (Natasha Narwal vs State, 2021) in relation to the Delhi Riots case observing that Section 43(D) of the Unlawful Activities (Prevention) Act was misused by the police authorities in detaining them, thereby putting an end to a prolonged misery faced by them and to the very principle of rule of law. The Hon’ble High Court had also observed that after taking into account the facts of the case, the allegations levied and the entire circumstances, it was clear that the offence of carrying out unlawful activities including rioting was not made out.
The Delhi High Court on 3rd September 2021 granted bail to five people named Furkan, Mohd Arif, Shadab Ahmed, Suvaleen, and Tabassum on a personal bond of Rs 35,000 each with one surety and ordered them not to leave the National Capital Territory of Delhi (NCT) of Delhi without prior permission of the Court. The bail was granted in relation to the First Information Reports (FIRs) filed on the murder of a head constable, Ratan Lal, as well as injuring a Deputy Commissioner of Police (DCP) during the Delhi violence In addition, the Court had stated that it is its constitutional obligation to guarantee that there is no arbitrary loss of human liberty in the face of government overreach. It went ahead to view that courts must exercise their jurisdiction to uphold the tenets of personal liberty, subject to rightful regulation of the same by validly enacted legislation.
Many other individuals such as Anwar Hussain, Kasim, Shahrukh, Umar Khalid and Khalid Ansari still await justice while being behind the bars for dissenting against the government’s views.
Kerala Gold Smuggling case
The smuggling of gold into Kerala through diplomatic routes is the subject of the Kerala gold smuggling case. It was discovered after the customs department in Thiruvananthapuram caught 30-kilogram gold worth Rs 14.82 crore smuggled in a cargo disguised as diplomatic luggage on July 5, 2019. On July 11th, 2020, the prime accused of the Kerala gold smuggling case, Swapna Suresh was detained by National Investigation Agency and the customs department and was kept in judicial custody until November 6, 2021.
Customs seized roughly 251 kg of gold from several airports in Kerala during the 2018–2019 fiscal year. In the fiscal year 2019–20, 540 kg of marijuana was confiscated, which was more than double the previous year’s total. In the same year, over 802 incidents of gold smuggling were also reported. According to different reports from Kerala Police, Koduvally town is a prominent smugglers’ base. Around 70% of the gold smuggled via Calicut International Airport is handled by various players in the area, according to estimates. Due to claimed incidents of the establishment of a link between smugglers and non-state actors, most extremist organizations and violent mafia, smuggling operations have progressed from an economic infraction to a severe security danger to the country. It is also claimed that huge Kerala jewelry businesses trade smuggled gold by posing as tiny fraudulent outfits.
Smuggling in India
Persons who engage in smuggling and other illegal import/export practices, in violation of current prohibitions/restrictions, or with the goal to dodge tariffs or falsely claim export incentives, may face substantial penalties under the Customs Act, 1962. The products in question may be seized, and hefty fines and penalties may be levied. There are also procedures for arrests and punishment to dissuade them from smuggling and business frauds, which have major economic and social consequences when it comes to sensitive products like narcotics, guns, and ammunition.
Tuticorin custodial killings
The Tamil Nadu Police in Sathankulam, Thoothukudi district, arrested P. Jeyaraj (59 years old) and his son J. Beniks (also written Fennix, Bennix) (31 years old) for allegedly breaking the Indian Government’s COVID-19 lockdown restrictions on June 19, 2020. The father-son duo was arrested on June 19 for allegedly keeping their mobile accessory business open over its permitted hours, according to the police. On June 19, an FIR was filed against the two, and they were both arrested. The CBI, on the other hand, maintained there were no violations of the shutdown guidelines in the charge sheet. While in police custody, the father and the son were tortured, resulting in their deaths. Beniks became unwell on June 22, 2020, and was sent to the Kovilpatti General Hospital, where he died later that day. His father died the next day, on June 22, 2020.
Custodial deaths and role of courts
The Madras High Court’s Madurai bench took suo motu cognizance of the case on June 24, 2020, and on that day, Justices P.N. Prakash and B. Pugalendhi instructed the Superintendent of Police, Thoothukudi, to investigate the event and provide a status report. After the police finished their inquest hearings, the Court had ordered that the autopsy be videotaped by a panel of three specialists in the presence of a Magistrate. The High Court received copies of both the autopsy and inquest findings. The State Human Rights Commission of Tamil Nadu had taken suo motu note of the offence and had requested a response from the Police Department. Observing that ‘the actions of the government must inspire people’s trust. Every time a person dies in custody, the state’s legitimacy takes a hit’, Justice G.R. Swaminathan had issued a set of guidelines for the state actors to follow and abide by in order to avoid the occurrence of such instances in future.
Bangalore Riots case
On 11 August 2020, the nephew of an Indian National Congress state legislator, Akhanda Srinivas Murthee, reportedly made a disparaging statement against the Islamic prophet Muhammad on Facebook. People began gathering in front of the legislator’s mansion in Kaval Byrasandra in protest after the post became viral in the neighborhood, asking that the accused be jailed. The nephew was detained by two police squads from the DJ Halli station. Small groups came near Kaval Byrasandra at 8 p.m., according to the police, after which hundreds gathered around the DJ Halli police station, demanding punishment against those guilty for the social media post. Members of the SDPI were said to be present in the DJ Halli audience. People in the crowd became irritated when they attempted to file a complaint but said that the police were unwilling to do so. Meanwhile, officers at DJ Halli station sought to ease tensions with the help of local residents, but when one of the teams returned without the accused, the mob stormed the station, vandalized it, and even set fire to police cars. Two additional Congress state lawmakers, Zameer Ahmed Khan, and Rizwan Arshad, arrived at the DJ Halli station around 10:30 p.m. to assist in calming the situation, but the violence had apparently escalated by this time. A group of Muslim teenagers created a human chain around the local temple near DJ Halli station between 11:00 p.m. and 12:30 a.m. to defend it in case of escalation. Fortunately, the situation did not escalate into a communal riot, according to later police evidence.
On August 12, 2020, Sandeep Patil of the JCP (Crime) Bengaluru revealed that 110 persons had been detained in connection with the incident. Attempting to kill and obstructing a public worker were among the charges levelled against the defendants. A curfew was imposed in the DJ Halli and KG Halli police jurisdictions, according to Bengaluru Police Commissioner Kamal Pant, while Section 144 was implemented throughout the remainder of the city. Pant later that day extended the curfew till 6 a.m. on August 15th. Kuldeep Jain, DCP of the Central Crime Branch, defended the police shooting by claiming that proper procedures were followed. According to his evidence, the police sought to persuade the mob, but they became aggressive and began hurling stones at the officers, necessitating the deployment of extra forces.
The aftermath
The Karnataka state government had planned to recover damages caused by the riots of August 11, 2020, but had discovered that the process would not be an easy task taking into account that the suspects of the riots who were arrested were majorly poor and barely owned any assets, which could be used to recover the cost of the damages caused. The government had therefore approached the Karnataka High Court seeking the appointment of a commission to look into the same. It is to be noted that although the High Court was empowered to issue such a commission according to Supreme Court’s guidelines, the responsibility of the state government to prove the case against the accused thereby identifying the properties to be seized stood foremost. A retired judge of the High Court, Justice H.S. Kempanna was appointed as a commissioner to look into the matter. Interestingly, on 11th January 2021, the Karnataka state government had faced embarrassment before the High Court as the Commissioner had complained of not being provided with efficient infrastructure to execute his duties. Former Mayor of Bengaluru, Sampath Raj, and former Corporator, Abdul Raqueeb Zakir who were arrested on grounds of the riots, were granted bail by the Karnataka High Court under Section Section 167(2) of the Criminal Procedure Code (CrPC), 1973, along with other accused individuals.
Sandalwood drugs case
In connection with a drug-selling investigation, the Karnataka Police have detained a number of persons, including several Kannada actors, and summoned others from the ‘Sandalwood’ film business. So far, the Bengaluru police’s Central Crime Branch (CCB) has detained actors Ragini Dwivedi and Sanjjanaa Galrani, as well as Diganth Manchale and his wife Aindrita Ray, Akul Balaji, and Santosh Kumar. Aditya Alva, son of late minister Jeevaraj Alva and brother-in-law of Bollywood star Vivek Oberoi, and film producer Shiva Prakash are also mentioned in the CCB’s FIR. On August 28, the Narcotics Control Bureau (NCB) detained three people for allegedly distributing narcotics to singers and actors in the film business, prompting the CCB to step up its probe. The Bureau, headquartered in Bengaluru, said that Anikha Dinesh, was the ringleader, with help from Anoop Mohammed and Rijesh Ravichandran from Kerala. A residence in Bengaluru was raided and a large quantity of Ecstasy tablets and LSD blots worth Rs 20 lakh were discovered. Anoop Mohammed was allegedly linked with the same, according to the NCB. While several media reports claim different angles to the present case, currently it will be beneficial to state that the sandalwood drug case has had an open end with no logical conclusion.
Bois Locker Room
The inquiry of an Instagram group conversation formed by a group of schoolboys from South Delhi, India in 2020 is familiar by the name of the Bois Locker Room issue. The goal of the group chat was to distribute indecent photographs of women, many of whom were under the age of 18, resulting in public uproar and rumors. Members of the organization are claimed to include students in the 11th and 12th grades at some of Delhi’s most prestigious institutions, that used photographs of underage females without their permission, as well as nasty remarks, including references to gang rape. The prevalence of rape culture in schools caused arguments and controversy as a result of this. Members of the “Bois Locker Room” threatened to disclose nude images of the women who reported them, according to social media sites that shared leaked screenshots from the group. The Delhi Commission for Women criticized the organization in May 2020, and the Delhi Police’s cyber unit launched an investigation.
Despite the fact that Delhi was under lockdown for COVID-19, the probe was apparently hastened with the support of Swati Maliwal, the Chairwoman of the Delhi Commission for Women. By May 6, 2020, fifteen students had been interrogated and one had been detained. Many of the 27 participants were found to be under the age of 18. On May 11, 2020, police in Noida, arrested the administrator of “Bois Locker Room,” caught another adolescent in the group, and confiscated all of the defendants’ cell phones. 24 of the 27 youngsters had been inspected, two were out of reach, and one’s specifics were still being worked out.
Cybercrime in India
Cybercrime is a wide phrase that refers to criminal conduct in which computers or computer networks are utilized as a tool, a target, or a location for illegal activity. It can range from electronic theft to denial of service assaults. Phishing, credit card fraud, bank robbery, illegal downloading, industrial espionage, child pornography, kidnapping minors via chat rooms, scams, cyber terrorism, the production and or dissemination of viruses, spam, and so on are all examples of cybercrime. It also encompasses classic crimes involving the use of computers or networks to facilitate illegal activities. It is extremely disheartening to state that India lacks robust cyberlaw jurisprudence leading to rising in such crimes in recent times. The rate of cybercrime (incidents per lakh population) also increased from 3.3% in 2019 to 3.7% in 2020 in the country, according to the National Crime Records Bureau.
Conclusion
A pregnant wild elephant in Kerala’s Silent Valley Forest was the victim of an act of human brutality on 27th May 2020, when she chomped on a pineapple loaded with strong crackers supplied by a man and it detonated in her mouth. After she bit the pineapple and it exploded in her mouth, her jaw was damaged and she was unable to eat. While the elephant silently passed away, her unborn child couldn’t see the light of the day. While such inhuman acts are no less than any heinous crimes, it is shocking to see how inhuman people are becoming in recent times. The police, the prosecution, the courts, and the penal facilities cannot handle crime prevention and control alone, they require the utmost coordination and cooperation from all elements of society. For effective crime prevention, great efforts must be made to raise public awareness and ensure people’s engagement in all parts of the crime issue.
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:
Over the last decade, the Private Equity Industry in India has seen tremendous growth from a base of US $ 8.4 Billion in 2010 to the US $ 47.6 Billion in 2020. It also saw some pivotal structural changes in the deal type, deal size and investor mix. As India’s attractiveness as an investment destination is increasing at a great rate and also the number of new innovative and disruptive businesses increasing day by day, the role of the Private Equity industry in the country’s economy should be acknowledged.
What is private equity?
Private equity is an Alternate Form of Investment for those businesses which don’t have access to capital markets. It consists of funds and investors which directly invests in the capital of a private company and has considerably longer holding periods. This capital can be used by the companies to expand their market base, use new and more efficient technologies or make acquisitions.
The process of raising funds
Term sheet and primary negotiations
Term Sheet consists of all key and essential components between the parties to the deal and it is a non-binding agreement. In this stage, it is more about understanding the opposite party’s basic expectations from the deal and creating a picture of the transaction in the minds of parties.
Information about the company
In this stage, the investing firm interacts with the founders of the company, analyses the market and business potential of the company, and estimates the probable growth rate. This is a very important stage for the founders to drive forward the deal and they should be able to establish a good connection with the partners of the fund in this stage.
Due diligence
This is a very important stage in the investment process for both sides because all the actions in the future stages are directly dependent on this. Due diligence by the investor includes legal, environmental, financial, tax, accounting and technical due diligence. The extent of negotiations in the further stages is completely dependent on the due diligence report submitted to the investing firm. It is also a prerequisite to draft the transactional documents as different clauses like representations and warranties, conditions precedent, conditions subsequent, indemnities are based on the finding of the due diligence.
Discussions on conditions, representations and warranties
This is the last stage of negotiations and is based on the Due Diligence Report. Obligations to perform various activities are laid upon the company in the form of conditions precedent and conditions subsequent. And also many rights like Anti-Dilution, Drag Along, Tag Along etc are negotiated in this stage.
Drafting of definitive contracts
Final agreements like the share/debenture subscription agreement and shareholders agreement are drafted in this stage after considering all the negotiations that happened after the due diligence of the investee company.
Disbursal of money
Finally, after drafting the definitive agreements between the parties, the consideration shall be paid by the investor in the agreed method and process.
What are all the different instruments in which private equity investors invest?
In most cases, private equity investors prefer to invest in convertible instruments due to lesser risk than investing directly in equity. Almost two-thirds of the deals in Private Equity Space in recent years were made through compulsorily convertible preference shares, says industry trackers. This is mainly to bridge the gap in the “mismatch in valuation expectations” between promoters and investors. Some commonly issued securities for getting Private investment by the companies are:
Compulsorily Convertible Preference Shares (CCPS)
CCPS is regarded as an effective instrument as it continues to carry a preferential right to get dividends and also provides protection for investment in the event of a company being wound up. It is less risky. They are the Preference shares which are mandatorily convertible into Equity Shares of the company on a pre-decided date and with pre-decided conditions agreed between the company and the investors.
CCPS are very helpful for start-up founders in protecting their stake in the company as they are anti-dilutive securities. They also help in avoiding the gap between the investors and founders regarding the aspects of valuation.
Due Care is to be taken to make sure the issue of CCPS complies with the provisions of Section 42, Section 62 and Section 55 of Companies Act, 2013, Pricing guidelines and Sectoral Caps under FDI Policy and External Commercial Borrowing Regulations if the issue involves foreign investment. Stamp Duty is payable on the issue of equity share certificate post-conversions and is governed by the Stamps Act of the relevant state.
Compulsorily Convertible Debentures(CCDs)
As the name suggests, CCDs are debentures that are compulsorily convertible on a predetermined date and with predetermined conditions agreed between the company and investor. It also carries the same features as CCPS but the main difference is CCD is a debt instrument that provides greater protection to the investor.
Term Sheet/Letter of Intent/Memorandum of Understanding
Term Sheet is the first formal document between the Company and the Private Equity Fund. It is a non-binding agreement but some of the clauses of it are legally enforceable on both parties. The basic purpose of a term sheet is to help both parties in understanding and appreciate the needs and expectations of the opposite party from the transaction more clearly. It consists of all critical and essential points of the agreement like valuation, capitalization, conversion rights, proposed stake in the investee company, etc.
Provisions of the Term Sheet which are legally enforceable:
Confidentiality Terms: This is to protect sensitive information about the target company from being shared by the Private Equity Investor to a third party.
No-Shop Provision: This is a negative covenant working against the company. As per this provision, the company is prohibited to search for any other potential financing options up to a predetermined date.
They are formal contracts that set out the terms and conditions relating to the sale and purchase of shares in a company. This may be related to any kind of security i.e., Equity Shares, CCPS, CCD, etc. Companies use Share Subscription Agreements to raise capital from private investors. Under this agreement, the Company issues new shares to the investors which will be subscribed by them at a mutually agreed price. The Transfer of shares from an existing shareholder to the investor is done through a separate contract called a share purchase agreement.
These agreements should set out what is being sold, for how much, to whom and also any obligations and liabilities laid on the parties. Some Important provisions of the share subscription agreement include representation and warranties of investors and company, conditions precedent, completion mechanics of the deal, Tax provisions and Non-Disclosure provisions.
Shareholder’s agreement
Shareholder’s agreement is the final formal binding agreement between the company and the investors which govern the mutual rights and duties of the company and the investors. An existing investor in the company may also be a party to this contract.
This is not a legally mandated agreement but almost all investors insist on having it as it protects their rights. The company and its founders should be very careful while negotiating this agreement because some provisions if not taken care will overpower the investors. This causes immense hardship to the founders in exercising their management control over the business and taking business decisions with freedom.
Some of the rights of investors which can be protected by the shareholder’s agreement are:
Right of First Refusal: This is a right to the investors through which any other shareholder can sell their shares to a third party only after making an offer and getting a refusal from the investor.
Tag Along and Drag Along: Tag Along right protects the investor with the minority stake. If any majority shareholder of the company sells their share to a third party, then they are also obliged to sell the shares of this minority shareholder at the same price if he is protected by Tag Along rights. For instance, if investor X has Tag along right in his shareholder’s agreement, then when the majority shareholders are exiting the company, investor X has the right to get the exit opportunity at the same price along with them.
Drag Along rights work completely different from Tag Along rights and these rights were given to a majority shareholder. Under this right, If a majority shareholder negotiates an offer to sell his stake to a third party then he can force all other shareholders of the company to accept the offer from the third party so that the third party can acquire a full stake in the company.
Anti-Dilution Provisions: This clause prohibits the company to raise further capital at a lower valuation than their investment. If the company raises capital at a lower valuation, then the company is obligated to issue new shares to the investors to match the newly made valuation aspects. Broadly, there are two types of anti-dilution clauses namely Full ratchet and weighted average ratchet. In the case of full ratchet, irrespective of the amount invested by the new investor, the company is required to issue shares to the existing investor to match his original shareholding percentage.
In the case of a weighted average ratchet, the company is required to allot the new shares to the existing investors by adjusting their original investment with the new valuation at which it raised the funds. Redbus allowed its investors to have full ratchet protection to their investments which resulted in the founders holding very little equity. Allowing full ratchet protection to the investors will be very dangerous to any start-up.
Nomination on Board: The investors while making big investments in the company feel to have control over the company to regularly monitor its business activities. For this, the Investing Firms reserves the right to nominate X number of directors and sometimes even Vice-Chairman or Chairman in the Investee’s Board.
Affirmative Voting Rights: They were the protective rights or veto rights that were granted to investors on certain reserved matters. As per these rights, the investor has the right to stop any action by the company on these matters irrespective of the voting pattern. For example, when investor X reserves certain matters for his consent in the investment agreement, then unless with his consent it is not possible to approve a decision. They are inserted to protect the investors in some cases and to help the investor exercise control in other cases. Many times, they can create an undue hardship to the founders in day-to-day affairs, if these rights were also extended to the business decisions of the company.
Liquidation Preference: Under this clause, the investors will get priority over other shareholders in the event of liquidation of the company.
Conclusion
Finance is regarded as the “Life Blood” of any business. Many new and small business founders who don’t have access to capital markets find it very difficult to get this lifeblood for their companies. Private equity solves this big problem by providing finance to these companies in exchange for acquiring a stake in it. At the same time, the founders need to understand the different rights that the investors can acquire over their business through these transactions. An attempt has been made by the author to highlight the steps involved in the raising of funds by founders from a private equity fund starting from the term sheet to the final definitive agreements.
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:
This article is written by Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the various drug laws imposed in the middle east and the recent developments regarding the same.
Crimes don’t last long in the middle east. Otherwise known for their advanced infrastructures and everlasting oil reserves, one thing which the Arab Emirates countries don’t get enough credit for, is their enforcement and justice delivery mechanism. The rules and regulations in these countries regarding even the smallest of things like snatching someone’s phone are very strict. Similar is the case for drugs and other narcotic substances.
The laws
The UAE is governed by the strict Shariah Law. Hence, any prescription or over-the-counter medication is considered illegal. The UAE has an absolute zero-tolerance policy against drugs. Recreational drugs are also banned and so is alcohol which is available only to individuals with a liquor permit. The people getting caught in possession of drugs are usually foreign travelers and the airports are where these drug laws are used to the fullest. In a recent case, an Indian couple was arrested in Qatar in possession of drugs, which were found in the bag they were carrying. This bag was supposedly given to them by a relative to be handed over to someone in Qatar. Hence, this couple unknowingly were carrying drugs and despite being innocent, had to spend time in jail.
The UAE Federal law no. 14 of 1995
The drug laws in the middle east are very strict. The foundation of these drug laws was laid in 1996 when a legislation was passed allowing the death penalty for drug trafficking. This law prohibits drugs and suggests various countermeasures against the possession of narcotic substances. Mentioned below are some of the important provisions under this law:
Article 6
This Article states that the possession, import, export, of narcotic drugs, shall be prohibited. The drugs can only be used for a scientific research purpose, by a competent authority.
Article 11
Only Government institutes and hospitals, licensed medical pharmacies and warehouses, can procure narcotic substances by issuing a written permit in the name of a competent administrative authority according to this Article.
Article 18
The individuals who are given permission to use the particular drug should appoint a pharmacist who will be responsible for the substance.
Article 24
The pharmacies must issue the narcotic substances only with a prescription from a physician who has the understanding and is licensed to practice the profession of medicine.
Article 31
The manufacturing units cannot use a narcotic substance in pharmaceutical preparations without taking permission.
Article 35
Cultivating plants producing narcotic substances shall be prohibited.
Barring this, 8 Schedules were also added in the law, which enlists the various substances that should be considered as narcotics. Further, the law punishes drug offenders with a jail time of 4 years and a fine of 10,000 dirhams. The law has been amended a lot, however, the recent 2016 amendment is an important one. This Amendment reduced the period of punishment for first-time offenders to two years and also gave the courts an option of adding a minimum fine of 10,000 dirhams. Possession of drugs found in the blood or urine of a person is also classified as illegal.
Prescription drugs
Even controlled and prescribed medications have certain restrictions in the middle east. The medications that are easily available in other countries, may not be available in the UAE. Drugs are divided into Class A and B. Class A drugs are narcotic and psychotropic drugs that are fully controlled and class B are the ones that are semi-controlled. Both these classes of drugs are not easily available, nor are they imported into the country. Foreign travelers wanting to bring medications into the UAE must get authorization through an online portal. Further, they must provide a copy of the prescription which they have taken from a licensed practitioner.
Reason for stringent laws
Now that we have a little idea of how strict the drug laws in the middle east actually are, it is important to find out the real reasons behind them being so strict. The drug that we are dealing with here is cannabis, also popularly known as marijuana. Cannabis includes mainly two components, cannabidiol, and tetrahydrocannabinol. Drugs cost the middle east a lot of money. According to a 2016 survey conducted by the National Rehabilitation Centre in Abu Dhabi, the UAE loses around Dh5.5 billion due to drug addiction. Some of the typical and universal causes of drug consumption like peer pressure, stress relief, boredom, etc. added to the decreasing family values among the youth hence, the zero-tolerance policy against drugs.
The National Rehabilitation Centre
The national rehabilitation centre in Abu Dhabi stands as a lone driving force against substance abuse in the Emirates. Established in 2001, the organization has been pivotal in achieving various goals as a treatment and rehabilitation facility against drug abuse. It has produced unparalleled success stories of people who were really badly influenced by drugs but came out of it through rehabilitation and treatment. Since its formation, the centre has registered around 2,500 cases, most of which volunteered for self-treatment, and the others were recommended by the Ministry of Health.
The centre conducts various surveys related to drug abuse and then hands over the details to the government. In a similar survey, Dr. Marzouqi the Director of the Public health and Research Department in the NRC pointed out that, the majority of the cases relating to drug abuse involve addicts in the 20-30 age group. He further advised the parents of young children to be alert and to keep an eye on the behavior of their young ones in case any signs of drug consumption show up.
Recent developments
The 1996 legislation of the UAE against the use of narcotic and psychotropic substances proved to be a success. However, the long-standing laws seemed to be really harsh on foreign travellers. Hence, the government passed Federal decree no. 30 of 2021 to make certain changes in the 1996 law. Some of the major changes included treatment for first-time offenders, optional deportation of ex-pats caught in drug-related cases, and severe punishments for serial offenders. Further, the decree establishes various specialized units to serve as treatment and rehab facilities with binding confidentiality guidelines. This means that the units shall maintain complete confidentiality about all the information stored.
Punishment
The penalties imposed on the offenders extend to a minimum of 3 months of imprisonment and a fine of up to AED 20,000.
For repeat offenders, imprisonment is up to 6 months and a fine of a minimum of AED 30,000.
For those influencing a drug-related offence, the imprisonment is at least 5 years and the fine is up to AED 50,000.
For getting involved in the sale of drugs, the imprisonment is at least 10 years and a fine of up to AED 100,000.
The new decree gives the courts the freedom to exchange drug-related offences with the treatment of the first-time offenders in the specialized units.
Few other countries with equally stringent drug laws
The drug laws in the middle east are considered harsh, however, there are a few other countries that have imposed stricter drug regulations.
China
In China, getting caught for possession of drugs can land one in a compulsory drug rehabilitation centre helmed by the Chinese government. In more heinous drug crimes, punishment can extend up to execution.
Malaysia
People selling drugs in Malaysia can end up getting a death penalty, and a fine or jail time can be imposed on the individuals in possession of narcotic substances.
Iran
Opium is a problem in Iran for which, the main reason is that it is produced in the neighbouring country of Afghanistan. However, drug regulations are also strict here for which the maximum punishment is the death penalty.
Indonesia
Laws against drugs are very unique and different in the world’s largest island country. People in possession of marijuana are rewarded a jail time of at least 20 years whereas for possession of drugs, the jail term is 12 years, and for the sale of drugs, a death penalty is imposed.
North Korea
Foreigners are not frequent in North Korea however, if you do visit the country, do not bring drugs. Getting caught for possession of drugs can land one in a prison camp for a long stay.
Critical analysis of the laws
The drug laws in the UAE are an example of how stringent their justice delivery system actually is. However, despite there being a zero-tolerance policy, drug-related cases remain almost unchanged. This is because the airports are strictest in terms of checking for drug trafficking cases so, most of the focus is on people entering the middle east rather than the citizens residing there. Other causes may include an increase in wealth due to the rise in oil.
In a survey conducted by the government, around 6.1 out of every million people died due to drug abuse in 2015. Further, the United Arab Emirates Human Rights Report in 2020 showed that the prisons where drug abusers are kept had problems of overcrowding, poor sanitary conditions, and lack of proper medical care. Hence, drug abuse remains a concern for the middle eastern countries and is far from over.
Conclusion
Drug abuse in the middle east is seen from a historical and cultural point of view. Substances such as opium were seen in the medieval period in ancient Egypt. The Holy Quran in its several verses mentions why substance use is forbidden hence the reason why society does not accept it. Due to this, the prevalence of drug abuse and substance misuse is very minimal in the middle eastern countries, as compared to the west. It has been a collective effort on the part of the UAE government and various other organizations, to not just control the incidents relating to drugs, but also in giving the offenders a chance to get treated and properly rehabilitated so as to come out as better human beings.
This article is written by Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the ongoing military coup in Myanmar, followed by the arrest of Aung San Suu Kyi.
Table of Contents
Introduction
Myanmar as a country has struggled to attain peace ever since it gained independence in the 40s. From the humanitarian crisis of the Rohingya Muslims to the long-lasting military rule, the citizens have seen and continue to see dark times. Amidst all this, the country’s leading light, Aung San Suu Kyi has been recently arrested and detained by the military.
How Burma became Myanmar
Currently, as we speak, the military commander-in-chief Ming Aung Hlaing has taken charge of the country. However, it is important to understand the history of the South East Asian Nation. Burma, as it was popularly known before its independence, was a British colony during the British rule in India. The Second World War led to the separation of Burma from the hands of the British in 1948. Soon after its independence, in 1962 the military took control of the country under the leadership of General U Ne Win. Later Burma was renamed the Republic of Myanmar in 1989 despite being ruled by the military.
Myanmar/Burma military coup : coup d’etat
A military coup, also known as coup d’etatin French, is the overpowering of a small mob or the country’s military on the political leadership. A coup is different from a revolution because a revolution is generally done by a large number of people and affects the overall economic, social, cultural, and political scenario of the country whereas, a coup is done to take control of the government and rarely affects economic and other ties of the country. Some coups end up toppling down the dictatorship and some end up becoming dictators. An example of a good coup was the 2010 Niger military coup which overpowered the then President Mamadou Tandja and imposed democratization. However, the Myanmar military rule did not prove to be a good coup. After 1989, the military junta (government led by the military establishment) took over and in 2008, formed their Constitution which gave widespread powers to the military under civilian rule. In 2011, the junta dissolved and a transitional government was put in place. The then Prime Minister Thein Sein was appointed as the President. Between 2011 to 2015, there was a steady rise in the overall development of the country. The economy also started gaining momentum. In 2015, the country witnessed its first nationwide elections and the National League for Democracy party led by Aung San Suu Kyi emerged victorious.
What is happening in Myanmar: Aung San Suu Kyi’s conviction
A born leader
Aung San Suu Kyi took charge of Myanmar in 2015 after almost 25 years of fighting for her motherland. She is the daughter of Myanmar’s freedom struggle hero Aung San who was assassinated just before Myanmar attained independence in 1948. Aung San Suu Kyi’s fight for freedom started in 1988 where the people of Myanmar had started gathering courage against the oppressive rule of General U Ne Win. During this time, Myanmar was at its lowest. Corruption was at a rapid pace, the economy was down, the leadership started separating the country from the rest of the world, and incidents of violence against the people started increasing. Someone had to stand up against this intolerance and it was the youth who did so. Many were killed from the lethal use of force by the military, some of them had to spend around two decades in prison. However, this event in 1988 led to the resignation of General U Ne Win, and the students who led the resistance have a special status in Myanmar even today. Aung San Suu Kyi became the leader during these protests and formed her own opposition party, National League for Democracy. In 1990, her party hadwon the national elections but she wasn’t allowed to take charge of the political establishment by the military. Thereafter, she had to spend around two decades in detention and house arrest. When she returned in 2010, she re-joined politics and in 2015, her party won the elections again. This time it was the Constitution of Myanmar that disallowed her from becoming President because her children were supposedly foreign nationals. Hence, she became the de-facto leader of the country.
Rohingya crisis
Perhaps the most talked-about topic after the military junta is the Rohingya crisis in Myanmar. The Rohingyas, a minority ethnic community from North Myanmar were framed as illegal immigrants right after Myanmar gained independence in 1948. This was due to their religious differences with the country’s Buddhist population. In 1982 again, they were seen as illegal immigrants from Bangladesh. Under General U Ne Win’s rule, the community was persecuted and abandoned from the rest of the country.
After nearly 25 years in 2016, hundreds and thousands of Rohingya Muslims were seen fleeing the country and going to Bangladesh. This was because they were attacked by mobs unknown. Some say they were Rohingya Aarsa militants, some say it was the Rakhine Buddhist mobs. A large number of Rohingya were killed in these attacks. The others, however, started fleeing from the country. Aung San Suu Kyi had won the Nobel Peace Prize in the 90s when the Rohingya were banned as illegal immigrants. Often praised as a Human Rights leader, Ms. Suu Kyi gave her Nobel Prize speech when the Rohingya saw its darkest times. Today she faces allegations of staying quiet and not raising her voice against such a grave situation. In her recent interview with the BBC network, Ms. Suu Kyi stated that the Buddhists in the country have suffered equally and the term ‘ethnic cleansing’ is too strong to describe the Rohingya issue. World leaders across the globe have criticized Aung San Suu Kyi’s stand on the issue and have been mounting pressure on her ever since.
The 2021 military coup
In 2020, Myanmar held its second nationwide election. Just like in 2015, Aung San Suu Kyi’s NLD party won with a convincing margin. However, many in the country alleged the voting system to be rigged. The military junta also suffered a huge blow. Due to this, the military staged a coup and regained control in February. Newly-elected leader Aung San Suu Kyi was detained and a military-ruled court held her guilty on multiple charges like corruption, violations of telecom laws, etc. which she denied. She was sentenced to 4 years in prison but was later reduced due to a partial pardon by General Min Aung Hlaing. Several other leaders including current President Win Myint were also sentenced to a 4-year jail term. Nationwide protests resumed, which proved to be larger than the infamous Saffron Revolution in 2007 wherein monks came out in huge numbers to protest against the unrest. The noticeable feature in the 2021 protests was the three-finger salute. This became a symbol of resistance and unity against the coup. The same gesture was seen in the Hunger Games movie. It was the doctors who started the protests, followed by the other citizens. The motives behind the 2021 coup remain largely unclear with the military assuming power for one year as mentioned in the Constitution.
Who is General Min Aung Hlaing
Min Aung Hlaing became the commander-in-chief of the Myanmar military which is also known as the Tatmadaw. A former law student, the general has always been an important name in the Myanmar army. In 2015, when Aung San Suu Kyi came to power, he ensured that the military shall have around 25% share in the parliamentary seats. During the Rohingya genocide in 2016-17, the international community condemned the acts of Chief Aung Hlaing and other senior military personnel. The US also imposed sanctions on him in 2019. Despite all this, he has regained control over Myanmar.
Reaction to the Myanmar crisis
The Myanmar military has declared a one-year state emergency in the country. Countries across the globe have condemned the military coup and also the Rohingya issue. The United Nations General Assembly has formally condemned the military coup. US President Joe Biden has urged for full support to impose democratization in Myanmar and punish those responsible for the coup. The UN Security Council released a statement calling for the immediate release of detained officials Aung San Suu Kyi and others.
The Indian scenario
Amidst heavy international pressure on the Myanmar political leadership, India has not yet condemned the February military coup. This is because of certain strategic consequences. During the protests, a large number of people from Myanmar have entered the country through Mizoram and Manipur. These people also include various police and military personnel. This poses a huge challenge for India who has a stable relationship with Myanmar’s military. Further, the Indo-Myanmar Thailand Trilateral Highway, which will provide connectivity from Manipur to Myanmar and then finally to Tak province Thailand, may be put on hold due to the political instability and unrest. On the whole, New Delhi’s reaction to the Myanmar crisis despite expressing serious concerns has been mild.
Conclusion
Myanmar is burning. There seems to be no other option but to wait and watch what happens after the one-year tenure of the military gets completed. The COVID-19 pandemic makes it even more difficult to think about a combined international solution to this issue. Aung San Suu Kyi continues to remain in jail and the Rohingya are still suffering.
When it comes down to the classical law on the rights of a Hindu female, the ancient texts had quite an amount of ambiguous definitions of the rights of a Hindu woman, wherein some of the texts put arbitrary and unreasonable restrictions and some of the texts induced a position where a woman was seen as a property of an man, albeit, some of the Dharmashastras (Hindu Ancient Text), have an effect of bestowing Hindu women with the right to own a separate property, but chastity was a limiting factor to exercising such rights.
On this front, judicial decisions were limited to some precedents but all these precedents were not able to lay out a general rule, but still discrimination against women was like a deep-rooted practice in the society. The legislature was quick to look into this discrimination against women and this agility could be seen in the form of legislations passed within the ambit of last 200 years.
The British-India was the first to take a leap of faith in this direction while enacting the Caste Disabilities Removal Act, 1850. Classical Hindu law concepts like, Hindu Undivided Family, coparcenary, Karta, doctrine of survivorship etc., were the ones which placed a limit on the right of women to receive maintenance from the joint family property. The legislature was successful in seeing this plight of women and then enacted various laws in the form of Hindu Women’s Right to Property Act, 1937, Hindu Succession Act, 1956, Hindu succession Amendment Act (2005)to alleviate their condition., These were some of the legislations which were able to protect the inheritance and property rights of Hindu females. Law Commission’s 174th Report, during the year 2000 recommended amendments to the Hindu Succession Act, 1956 ( hereinafter referred as HSA, 1956) and among the suggested measures, it was recommended to remove the discrimination against women and therefore there was an amendment to Section 6 of the HSA, 1956.
A contention to be noted is that the conceptual ramifications of coparcenary are different in English law and Indian law because English law treats coparcenary as a creation of law by an act of the stakeholders involved in the transaction of coparcenary, on the contrary, Indian law treats coparcenary as a personal law which cannot be created by the respective stakeholders.
The position of women has improved over time because of the changes introduced by the legislature. The present article aims at seeing how the changes were introduced, the effect of the said legislations, the judicial interpretations and the author has also given some suggestions with respect to the improvement of the said laws. The author has also presented his views on gender equality in the family and argued on strengthening the position of women within the joint family system.
Coparcenary and changes introduced in the classical law of coparcenary and hindu joint family
Coparcenary is a concept of Hindu jurisprudence wherein a few members of a joint family known as coparceners get a right in the joint family property by virtue of being born in the said joint family. Prior to the enactment of the Hindu Succession Act 1956, there was no uniformity in the laws governing the succession of the property whereas customary laws prevalent at that point of time under the Hindu law were the Dayabhaga and Mitakshara schools wherein the Mitakshara school followed the philosophy of law where the Hindu Undivided Family consisted of the common ancestor and his three lineal male descendants, together with wives, widows and unmarried daughters and the concept of coparcenary was limited to the father and his three linear male descendants who generated an interest in the Joint family property by virtue of their birth. The devolution of property took place via the doctrine of survivorship within the coparcenary which was set up within the joint family system whereas there was a complete exclusion of women from interest by birth in the coparcenary property and only the male members had this privilege which was discriminatory to women. Females were given the right to sustenance through the joint family property but the ownership of the said property was not given to the said female who was a part of the joint family property. The Dayabhaga school recognized females as heirs and was not discriminatory as compared to the Mitakshara school of law.
In the year 1929, the Hindu Law of Inheritance Act was enacted and it was one of the first legislations which took the plight of women into consideration. It bestowed inheritance rights upon three female heirs- the son’s daughter, daughter’s daughter and sister. Another legislation that tried to remove the said discrimination against women was the Hindu Women’s Right to Property Act, 1937 wherein it was envisaged that the share of a widow is equivalent to the share of a son and this Act was uniformly applicable to all schools of Hindu Law. But it was observed that there were some limitations to this act, where the flaw was that there were no inheritance rights according to the daughter and the widow was entitled to a limited share in the property of the deceased. The Act of 1929 was a step in the right direction but was far away from granting the stature of equality to women.
The Constitution of India came into force in the year 1950 wherein Articles 14, 15(2) &(3), 16 formed the part of fundamental rights, and it rightly envisaged in Article 39(d) of the Directive Principles of State Policy the promotion of gender equality and equal pay for equal work for both men and women. But still, women continued to be neglected and discriminated against on grounds of their gender which they acquired at birth and such violation of the rights of women were continued by the personal laws.
In the year 1956, the legislature enacted the Hindu Succession Act which envisaged a uniform law of succession to ensure equality of inheritance rights between the male and the female heir, the said law applied to Hindus, Buddhists, Sikhs, and Jains. The major reform brought about by this law can be said to be that it gave absolute ownership to female heirs, hence the equality between men and women was being promoted by the said HSA, 1956. It is hereby contended that this Act also contained some defects which were later cured by an amendment to this Act.
Changes brought into effect by the Hindu Succession Act, 1956
The Hindu Succession Act was enacted in the year 1956, which laid down the general rules of succession of property wherein Hindus were divided into 4 classes. This Act is credited with giving women absolute ownership of property and this concept of absolute ownership was penned down in Section 14(1) of the said Act. Section 14 was a step in the right direction in context to the equality of sexes, therein the status of women was elevated from a lower position to an equal footing within the patriarchal society. The scope of Section 14 includes not only wives but other female Hindus as well. The constitutional mandate of Article 14 was duly recognized by Section 14 of the HSA 1956 because the condition of limited ownership was removed. Section 6 of this Act duly recognized the rule of devolution of survivorship, but a special exception was made for Hindu females in Class I of the schedule that even a female relative was allowed to get a claim in the assets which was left behind by the deceased.
The main criticism of the HSA 1956, is that the concept of the Mitakshara coparcenary system has its traces in this Act. Even though the first step to ensure gender equality was taken by enacting HSA 1956, still the male heir got an interest in the coparcenary property the moment he was born and at the same time, the female was deprived of this right by this Act. Hence, the HUF was still governed by the male members at the same time. Per the explanation given in Section 6, a notional partition would take place between the father and the son during the lifetime of the father, and on the death of the father his share is divided between the son and the daughter. Hence, the daughter got a lesser share as compared to the son because the son got three fourth share and the daughter got one-third share, the specs of discrimination can be seen in the HSA 1956 which violates the spirit of Article 14 of the Constitution.
Another archaic and discriminatory position that can be noticed in this Act is that male descent of inheritance is up to three degrees and the female line of descent is up to one degree, so again it is difficult to proclaim that HSA, 1956 is not discriminatory in nature. Section 23 of this Act gives the daughter a right to stay in the joint family house until she is married but she was not given the right to ask for partition and was left at the mercy of the male members. Another provision of HSA 1956 which can be made an illustration of gender inequality is Section 15 of the Act which states that if a female died intestate with no sons or daughters to her, the succession would then be taken by the heirs of the husband and if the heirs of the husband were absent only then the estate of the deceased would go to the parents of the deceased female.
Therefore, a broad enough conclusion can be drawn that the discriminatory methods of succession mentioned in the Mitakshara system have their roots in HSA 1956 also there was no restrain in the power of testamentary succession which deprived daughters of their rights. There was a brief distinction between a married and unmarried daughter which was embedded in the scheme of HSA 1956 which can trace its origin to the patriarchal notions of the society.
Plight of hindu females after the enactment of Hindu Succession (Amendment) Act, 2005
The Hindu Succession Amendment Act was based upon the Law Commission’s 174th report wherein a set of amendments were suggested to the legislature so that they could do away with the discrimination which was meted to women in HSA 1956. Section 6 of HSA 1956 was amended where it was talked about the devolution of interest in the coparcener property on the grounds that now even a daughter would be a coparcener in the joint family property by virtue of her birth. It is now a settled law because of the Hindu Succession Amendment Act, 2005 that a daughter now has the same liabilities as a son has in the joint family property because she is deemed as a coparcener by virtue of her birth. Herein it means that the daughter has the same rights and liabilities as a son and a general statement which can be drawn is that Hindu Mitakshara coparcener now consists of male and female coparceners.
The amendment to the Hindu Succession Act, 2005 has been path-breaking in achieving gender equality because daughters were made coparceners which symbolizes the economic and cultural enhancement in the footing of women. The daughters who are born in joint families are now economically secure because they will get a right to the family property. In the case of breakdown of the marriage of the daughter, she has the option to return to the family home, and get a share in the notional partition and an equal share in the property of her father therefore instead of getting one-third of the property she will get an equal share with her fellow male sibling.
Another significant achievement of the Hindu Succession Amendment Act, 2005 is that the repeal of Section 4(2) which provided a forum for the gender-biased state laws to take proficiency in matters of devolution of tenancy rights in agricultural land because of which the property rights were more gender-biased because male descendants were given a preference in the said State laws whereas the females were given limited ownership. Such a measure was immensely helpful for women belonging to agricultural families because now they had a right to inherit their father’s property, this being iterated it is also contended that Section 23 was abrogated by this amendment act wherein Section 23 did not give residential rights to the daughters who were married until the said daughters were separated, deserted or widowed, therefore a right to reside and seek partition was provided to the daughters, hence the daughters were now getting the benefit of abrogation of Section 23 and Section 24 on the ground of getting inheritance rights for a widow of a predeceased son.
Even though the 2005 amendment provided equal rights to women, some other questions like daughters becoming Karta of the family remained unanswered. Daughters are said to be vulnerable to the influence of their husbands and this discriminatory and devoid argument was used to deny women the right to become a Karta. Daughters being made the coparceners will only benefit women who are born in families with lots of ancestral property, as this rule of “females as coparceners” will not apply to those women whose parents have self-acquired the property, therefore a parent who is in favor of his son succeeding his self-acquired estate may draft a will in the favor of his son, wherein again a daughter’s position as a coparcener is compromised. Even though the legislature is trying to rush in equality between the male and female heirs but according to the opinion of the researcher, this concept of inheritance by birth needs to be done away therein different rules with regard to the succession of self-acquired property should be made by impeding the testamentary rights under Section 30 of the HSA because, in other religions like Islam, daughters have a right to their parents self – acquired property.
Therefore, it is concluded that only granting coparcenary rights to daughters is not a sufficient measure, but laws need to be drafted about the self-acquired property. The legislature should instead move towards abolishing the Mitakshara school of law and bringing in uniformity in the succession law. A goal should be set to bring in uniformity in the Hindu Law.
Conclusion and suggestions
It is hereby concluded that HSA 1956 has brought some significant changes in the succession law, some of these changes are:
Position of women– The 2005 amendment, by making daughter a coparcener by virtue of her birth has put her at an equal footing with that of sons, henceforth a daughter is considered as an equal member of her family and is quite empowered in the sphere of her birth family. In the case of Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik, the contention by one of the parties to the matter that daughters born after 2005 were entitled to the coparcenary property and not those daughters who were born before 2005 was rejected by the court on the ground that the legislature had intended that those daughters born before 2005 were entitled to entitled to joint family property only after the 2005 amendment came into force.
Suggestions– It is hereby suggested that people should bring a change in their mentality in regards to the concept of gender equality and therefore there is a need to educate people on this aspect, the legislative intent behind the 2005 amendment will come to a successful end only if the education of masses is carried out on the topic of gender equality. From a legal point of view it is suggested that the legislature should consider amendments to Section 30 of the HSA Amendment Act 2005, wherein the testator rights of the deceased male should be kept in check because it is commonly seen in the society that separate property or self-acquired property of the father is generally given to the son by testamentary succession which is another form of escaping the legislative intent behind the Hindu Succession Act, 2005, hence an amendment which makes it compulsory for the father that he should give a share to the daughter or his immediate female successor some form of property in the testamentary succession which is being carried out in the favor of his son. It is also recommended that the society should be made aware of the economical benefits that a woman can provide to the family provided that she is treated equally on par with her male counterpart.
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:
Allow notifications
