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Electronic funds transfer

By
Diganth Raj Sehgal
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0
third party funding
Image source - https://bit.ly/3gQAN6v

This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the Electronic Fund Transfer System, its growth, different forms of electronic funds transfer and the procedural guidelines governing these transactions in India.

This article has been published by Diganth Raj Sehgal.

Introduction

The landscape of shopping has changed on a global level in the last decade. What once was limited to physical transactions between two individuals, now seems a distant memory with the advent of online shopping. How do you make payments for these online purchases? What is the meaning of going cashless and thriving in a cashless economy? How does the mere swiping of cards in one part of the world ensure a secure payment to someone sitting on the opposite end of the world? The answer to all these questions is the concept of Electronic Fund Transfer.

In simple words, electronic funds transfer can be defined as a system of exchange wherein, money is transferred from the account of one person to another. This system uses a secure network built around the internet to ensure that the transactions are completed in a safe environment whilst ensuring the privacy of the transacting parties and the amount involved in the transaction. In today’s dynamic world, one could say that the electronic funds transfer system has increased the ease of doing business globally. Now that we have a fair idea about what we are dealing with, let us try and understand this concept in detail.

Electronic funds transfer

In earlier times, if one had to send money to someone for a transaction, the preferred modes were issuing cheques and other negotiable instruments or visiting the banks and making the transactions through the banking system with the help of the bank employees. Both these processes ensured the creation of a formal record of the transaction, thereby creating a sense of security and trust between the transacting parties, something that was absent in the cases of cash-based transactions.

An electronic funds transfer system is built around the use of the internet to carry out transactions in the digital world. What is important is that even though it is a transaction that is carried out by the parties directly, it creates a formal record of the transactions. The added advantage herein is that the time that was spent in issuing different negotiable instruments and encashing them or visiting the banks for carrying out transactions, is now saved. All electronic funds transfer transactions can happen at the tap of a finger.

Due to these factors, it has become the preferred form of transactions worldwide and with the increase in its popularity, the former system of transactions that was predominantly based on negotiable instruments have been side-tracked.

Common uses of electronic funds transfer

Using credit/debit cards

When we use our credit and debit cards to make payments physically at retail stores or to make payments for online transactions, the money from our account is electronically transferred to the account of the seller. This form of transaction is widely used both nationally and internationally. According to statistics, in 2020, the combined transactions using Visa, MasterCard etc, accumulated a total of 368 billion transactions worldwide.

Online bill payment

The bill payment system in the country has been revolutionised over the past few years with the advent of UPI systems and online bill payment platforms like Google Pay, PhonePe, BHIM, BharatPe, Paytm etc. According to statistics, India recorded over 11 billion UPI transactions in 2019. The total amount of money that was being spent through UPI transactions in India was recorded to be $373 billion for the year 2020.

Direct debit

In this form of transaction, the cardholder allows the bank to automatically debit the money from the account in accordance with the timeline for payment. The bank, as and when the bills or loan amount becomes due, debits the amount and credits it to the appropriate account.

Direct deposit

In this form of transaction, the salaries of individuals are directly credited into their bank accounts from the account of the employer. The cost and time of extra documentation, issuing and depositing cheques is saved and the money is directly transferred electronically.

International transactions

When an individual is buying products on online e-commerce platforms that do not operate from India, online payment companies like PayPal ensure that the safe and secure transfer of money from the account of the buyer located in India to the account of a retailer located in any foreign country. This is also applicable to businesses in cases of import and export of goods wherein the payment for such imports/exports are made via online transactions.

Benefits of electronic funds transfer

There are multiple benefits associated with the use of electronic funds transfer. Some of these benefits have been enumerated below:

  1. The transactions occur at a fast pace and the transfer of money between the parties is completed within a matter of seconds, irrespective of the location of the transacting parties.
  2. There is minimum human intervention involved in the transaction, i.e., one does not have to wait for approvals from the banks for conducting online transactions.
  3. It is a time-efficient process.
  4. The risks of forgery that plagued the era of negotiable instruments is avoided.

Forms of electronic funds transfer

Real Time Gross Settlement

Introduction 

The RTGS system was introduced in India in the year 2004 and soon after its introduction, it witnessed over 81 million transactions in 2014 itself. This number has significantly risen over the years and the total number of RTGS transactions that occurred in 2021 stands at about 159 million (as of October 2021). Due to its immense use, the RBI in October 2020 announced that RTGS transactions would be operational 24x7x365 from December 14th 2020. During its launch, there were only 4 banks that facilitated RTGS transactions. This number has now risen to over 237 participating banks that facilitate RTGS transactions.

Meaning 

The Real Time Gross Settlement (RTGS) mechanism is one of the most prevalent forms of online transactions. In this system, money and securities held in a Demat form can be transferred from one bank to another in real-time and on a gross basis. The meaning of the term ‘real time’ is that there is no waiting period involved in the transaction and the amount that is debited from one account is credited to the other account at the same time. The meaning of the term ‘gross settlement’ is that each transaction is settled on an individual level, i.e., the system does not wait for multiple transactions to be made from one account in a day and then settle each transaction together, instead, it settles each transaction individually irrespective of the number of transactions made in a day.

Transaction limits and charges

The minimum amount that can be transferred by using RTGS is ₹2 lakhs. There is no upper limit for such transactions.

There is no processing charge that is levied for RTGS Transactions. However, banks may charge a certain sum of money on outward transactions, i.e., an amount less than ₹24.5 for transactions between ₹2 lakh and ₹5 lakh and an amount less than ₹50 for transactions above ₹5 lakhs.   

National Electronic Funds Transfer

The National Electronic Funds Transfer (NEFT) system was established in 2005 to facilitate one-to-one transactions between individuals at a quicker rate. Under this system, individuals, firms and corporates can transfer money from one account to another, provided that both the banks involved should be participating under the National Electronic Funds Transfer Scheme. The RBI announced that National Electronic Funds Transfer transactions will be available on a 24x7x365 basis from December 16th 2019.  

As of now, there are over 247 participating banks in the National Electronic Funds Transfer network and according to statistics, in October 2021 itself, there were over 7 lakh National Electronic Funds Transfer transactions amounting to a total value of over 50 crores.

Prerequisites for national electronic funds transfer transactions

  • The banks of the sender and recipient of the money should be part of the National Electronic Funds Transfer network.
  • The sender should have access to the account details of the recipient and will have to add the recipient as a Beneficiary under his National Electronic Funds Transfer network.
  • To add an individual as a Beneficiary, the account number, account type, name of the recipient, IFSC code of recipient’s bank etc should be known to the sender.

Transactions limits and charges

National Electronic Funds Transfer transactions do not have an upper or lower ceiling, i.e., any amount of money can be transferred by the sender to the recipient.

There are no charges levied on inward transactions. However, for outward transactions, the following maximum charges can be levied by the participating banks:

  1. For transactions up to ₹10,000: ₹2.50 + GST;
  2. For transactions between ₹10,000-₹1,00,000: ₹5 + GST;
  3. For transactions between ₹1,00,000-₹2,00,000: ₹15 + GST;
  4. For transactions above ₹2,00,000: ₹25 + GST.

Immediate Payment Service

The Immediate Payment Service (IMPS) is a transaction mechanism that was launched by the National Payments Corporation of India in association with the Reserve Bank of India in the year 2010. This system was initiated with 4 participating banks and as of now, it has over 150 participating banks. Through this system, an individual can transfer funds through both net banking and mobile banking.

This system also follows an instant payment mechanism, i.e., there is no waiting time involved. It is available on a 24x7x365 basis. The banks are allowed to levy certain amounts as transaction charges and the option to determine the transaction charge is given to each individual participating bank.

Plastic money

The term plastic money refers to the use of plastic cards that are issued by banks for making both online and physical transactions. Banks issue the following types of cards for transaction purposes.

Credit card

This card allows the user to make transactions on credit, i.e., the bank pays the money upfront to the recipient of the transactions and then at the end of every credit cycle, the user has to repay the amount of money that he has spent on credit. The mode of repayment could also be on an instalment basis. The credit card schemes vary from bank to bank and individuals with higher income are issued credit cards with a higher credit facility compared to individuals with a lower income.

Debit card

These are standard issued cards by the bank by which the user can withdraw money from his account or make payments using the amount available in his account.

Co-branded cards

Sometimes banks issue specialised cards to their customers. These cards are formed through an agreement between the bank and other entities wherein the offers of the affiliate entities can be availed at a lower price by the users transacting with such cards.

Electronic payment systems

Electronic payment systems play a big role in the online transactions that happen on a day-to-day basis globally. These methods are on the verge of transforming the economy of the entire world into a cashless economy. Several payment methods are used under this system. These methods have been discussed below.

Digital cheques

Digital cheques are similar to paper cheques except for the fact that they are issued in a digital environment. These electronically signed negotiable instruments are used by transacting parties to settle online transactions. These cheques are electronically secured by the banks involved in the transactions. They are easy to use and bypass the risks of failure/delay in the delivery of cheques.

Electronic cash

This term refers to the daily transactions that individuals undertake over UPI platforms like Google Pay, Paytm etc. Money from the account of the user is digitally transferred to the account of the recipient through registered phone numbers, QR code scanners etc.

Electronic wallets

E-wallets have gained popularity in recent times. Several platforms like Paytm, PhonePe, Airtel Money, Amazon Pay etc allow the users to create digital wallets and store money in these wallets. Users can then make transactions using the money available in these digital wallets directly.

Electronic Funds Transfer System Procedural Guidelines

The RBI in 2005 had introduced guidelines for the use of the electronic funds transfer system. Some of the relevant features of these guidelines have been discussed below.

Participants

The guidelines provide that if any entity wants to become a participant of any of the online banking systems, i.e., RTGS, National Electronic Funds Transfer, IMPS etc, the entity has to fulfil the following eligibility criterion:

  1. It should be a bank or a financial institution.
  2. It should have attained and continues to comply with capital adequacy norms.
  3. It is willing and able to comply with the technical operational requirements of the  electronic funds transfer system.
  4. It has to be approved by the RBI as eligible to maintain a settlement account with it.

Parties to the electronic funds transfer system

There following are the 6 parties of the electronic funds transfer system:

  1. The sending bank: The bank through which the user initiates the transaction.
  2. The sending service branch: An office that receives the request to make a transaction and send the same for processing.
  3. The sending electronic funds transfer centre: An office wherein the money that is being sent is processed for debiting from the sender bank.
  4. The receiving electronic funds transfer centre: An office wherein the money that is being received is processed for credit to the recipient bank.  
  5. The receiving electronic funds transfer branch: An office that receives the processed transactions and ensures their execution in a timely manner.
  6. The receiving bank: The bank which receives the payment sent by the sending bank and deposits the same into the account of the recipient.  

Inter-banks fund settlement

Every participant entity has to open and maintain a settlement account for settling the payment obligations arising from the electronic funds transfer transactions. This account should be maintained at the respective electronic funds transfer centres.

General rights and obligations of the participating banks

  1. Comply with the procedural guidelines;
  2. Execute electronic funds transfer in a secure manner;
  3. Maintain the security, integrity and efficiency of the electronic funds transfer system.

Conclusion

Given the present circumstances and statistics, it can be concluded that the world is moving towards a cashless economy at a greater pace. Between online card-based transactions increasing the pace of business and the upcoming age of UPI transactions, the number of users that will shift to the electronic funds transfer systems will only increase in the coming times. Only time will tell how efficiently this system will transform the banking sectors worldwide.   

References

  1. https://www.ijert.org/a-comparative-analysis-of-electronic-transfer-systems-2
  2. https://cleartax.in/g/terms/electronic-fund-transfer-eft
  3. https://scripbox.com/pf/eft-payment/
  4. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208110

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Upcoming private equity trends

By
Rachit Garg
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0
share capital
Image source: https://bit.ly/32rTN7r

This article is written by Vinayak Bajaj, from Amity University Mumbai, Maharashtra and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

It has been published by Rachit Garg.

Introduction 

Private Equity investment has seen an unprecedented amount of deal activity in 2021, which is two and half times the volume in the previous year and double of the prior record highs. With billions of dollars at their disposal, buyout firms have already taken advantage of a record year for mergers and acquisitions by selling some of their holdings for top pay. According to the data, we might not see this level of deal activity happening again moving into 2022, but at the same time there’s nothing fundamentally or structurally wrong with the market that would cause it to slow down. Private equity companies have plenty of dry powder on hand, and a large amount of investor money is flowing into private equity funds, ready to be deployed in new transactions. 

It is critical to understand where we’ve been this year in order to know where we might be in 2022. With this in mind, the author has provided an assessment of private equity activity in the current year as well as the way forward approach to it. 

Impact of COVID 

Covid has forced businesses to reinvent themselves. Given, the large amount of dry powder available with private equity firms, we can expect a lot of capital being invested as growth capital as companies are looking to improve their functioning after surviving the pandemic at least in the first quarter of 2022. 

Another issue that has been causing substantial concern as of a week ago is the omicron variant that has recently invaded India. 

Due to the omicron uncertainty, company growth, GDP and other financial indicators may be dampened in the first half of 2022. Vaccination rates have increased and according to several reports a new omicron vaccine is currently being developed which will be ready for supply in the next three months. 

There are several challenges in the supply chain of portfolio companies which is likely to effect EBITDA. Raw materials and other products are held up through international shipping bottlenecks due to quarantine mandates and the costs associated with shipping is extremely high which is making it difficult for companies to navigate these elevated expenses to their customers. The supply chain strain is likely to continue in the first half of 2022. Overall, many India-based PE fund portfolios have proven to be highly resilient, and funds are focused on efforts to stay ahead of the curve. 

Private Equity Investment Activity 

Given the data, private equity deal activity in 2021 was at a record high with estimated deal value at 787.6 billion US dollars. Although the deal count has reduced as compared to the last year, the investment volume has substantially increased over the years. Moving into 2022, private equity investments are likely to increase as firms are sitting with large amount of dry powder because of the pandemic. According to reports, private equity funds have around 1.5 trillion US dollars of dry powder and the funds waiting for the companies to show positive financials for the past two years will be entering into new transactions.

 There has been a drop in the number of firms raising funds in the past two years but the fundraising amount has almost stayed intact. This points out the fact that a few firms are launching massive funds and receiving high amounts which is only going to increase the deal activity entering 2022. 

Liabilities, cyber security threats, inadequate financials and similar issues could be the biggest roadblocks to a deal closing in the first half of 2022. Increased competition from other investors, as well as a disparity in buyer and seller valuation expectations, might prove to be a possible hurdle. 

PE Exit Activity  

Each deal stage in private equity has its own set of hurdles. However, the exiting stage is likely the most difficult, particularly during times of economic uncertainty. There are numerous elements to examine, ranging from the overall performance of the market and potential regulatory or legislative influences on that performance to more deal-specific issues like valuation multiples and financing availability, among others. 

Private equity firms have made exits from portfolio companies at record levels in 2021 amounting to around 630 billion US dollars. The main reason for this astronomical climb is inflation. According to reports, the US inflation is at 6.8, which is its 40year high level. These inflated prices have pushed private equity firms to exit their investments and realize their profits as investors are looking for yields. In the coming year, if the inflation continues to sustain these levels, the government will be forced to increase interest rates in the second half which is the only solution to bring down the inflation. This might also affect the private equity investment activity. 

Though typical holding period has lengthened, the likelihood that deal activity will stay high through 2022 suggests that a range of vintages may benefit from the overall market’s success.  

PE sector specific deal Activity 

Digitization of all industries is creating opportunities for tech enabled services businesses, software companies and technology industry in general. There has been a surge in IT industry deal activity due to the COVID pandemic in the past couple of years. Consumer technology and IT & ITES were the two largest sectors in absolute terms in 2020-2021. In 2021, compared to the past year, there has been a rise in deal activity in consumer products and services rather than business pro-duct services as the B2C market is constantly growing and we don’t just live in a B2B market anymore. 

Furthermore, businesses that are more cyclical and project based, and have been hit by COVID are expected to post strong performance. As we move away from COVID one month at a time, these businesses are reverting to their pre-COVID levels. 

Deal activity in the healthcare sector is nearing its pre-covid levels as we are moving away from COVID. However, the scare of new variants popping up can increase deal activity in the healthcare space as this is a pandemic resilient sector. 

new legal draft

From an investment perspective, investors also expect increasing interest in digitally accelerated opportunities such as digital health, fintech and ed-tech.  

Prioritization of ESG 

Environmental, social, and governance (ESG) issues are becoming more widely recognized as value drivers. Private Equity Firms are considering ESG while making investments as a result of which ESG policies and the performance of target organizations and industries have been scrutinized more closely. 

In light of their possible enhanced visibility to the public and investors, large and mid-sized businesses may feel more pressure to integrate ESG goals, as well as increased requests for ESG action and corporate transparency. The main challenge for major fund managers was guaranteeing the integrity of data and systems for ESG reporting, followed by implementing ESG enhancements and detecting and mitigating material ESG risks. We can expect additional issues surrounding standardization and reporting to emerge as fund managers figure out how to include ESG criteria into their strategies moving into 2022.  

SPACs popularity to continue 

There is no specific Special Purpose Acquisition Company (SPAC) laws in India, but there has been a magnificent boom in the US SPAC  IPOs in the first quarter of 2021. US SPAC IPOs have recorded around 21 billion US dollars of activity in the first quarter but there has been a massive drop from the record highs to around 6 billion US dollars in the next two quarters combined. This fall was caused due to certain regulatory issues regarding SPACs in the US. 

However, in 2022 we can expect the SPAC IPOs deal volume to rise from its lower levels since there are no known issues currently in this market. We can also expect a number of Indian companies being acquired through these special purpose acquisition companies. It will continue to be around but the pace of new issuances is unlikely to match the first quarter of 2021.  

Conclusion 

The COVID-19 pandemic and its ramifications are clouding the economic landscape, making predicting and policy decisions extremely difficult. As certain industries – hospitality, retail, energy and healthcare experienced increasing disruption and loss, fund managers with industry know-how and adroitness in producing value were able to negotiate agreements that complement or amplify their portfolios, resulting in more investment opportunities. Many businesses that have been exploring a sale pre-covid and have been on the sidelines for the past two years due to the pandemic could be entering the markets in the coming year as their financials have now recovered. The valuation multiples of the companies are pretty high but the amount of due diligence done by private equity groups to validate and substantiate what they are going to pay for the company is also very high. Fund managers are looking to creatively manage cash flow across the portfolio to unlock cash from working capital throughout the holding period. 

Furthermore, data breaches are at all time high and have recently posed a threat to business performance. It is critical for private equity firms to have a cyber security assessment of their portfolio companies. This is just an analysis of the trends in the private equity landscape according to the past and present scenario of the markets all over the world. Nobody has a crystal ball as to what changes might happen in this area of investment especially due to the uncertainty caused by the omicron variant as we step into 2022. While competition will remain severe for the foreseeable future, the asset class as a whole will continue to improve its value creation and exit strategies in order to generate the kinds of returns that LP’s will seek. 

References 

  1. https://www.bain.com/insights/india-private-equity-report-2021/
  2. https://pitchbook.com/
  3. https://www.jdsupra.com/legalnews/2022-global-private-equity-outlook-8453057/
  4. https://delano.lu/article/top-private-equity-trends-of-2
  5. www.investmentfundsecrets.com/

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CCTV surveillance laws in India and abroad

By
Diva Rai
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0
Image source - https://bit.ly/3sjlGff

This article is written by Smriti Paudel and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

This article has been published by Diva Rai.

Introduction

Closed-Circuit Television(CCTV) Surveillance has become essential for security purposes but at the same time, concerns over the privacy of individuals and groups owing to the nature of its installation and use. When World War II started, security technologies and their applications were still relatively new. Originally, CCTV technology was designed to actually learn about weapons rather than people. At the time, only live streams, not records, could be viewed via CCTV. Since the 1990s, CCTV has been proliferated all over the globe. Today, it is widely used to monitor various aspects of life. It lets individuals keep an eye on everything from workplaces to restaurants, stores, and even their own residences.

CCTV Surveillance for Crime Prevention

The use of CCTV has been linked to both a big and little reduction in crime. CCTV is considered to be a form of Situational Crime Prevention (SCP) strategy that increases levels of formal surveillance within a target area. The situational approach to crime prevention concentrates on the area in which crime happens rather than the criminal themselves. CCTV might help to reduce crime by increasing the likelihood of perpetrators being identified and punished. It has the potential to discourage criminals who do not want to be caught. It also assists police and security personnel by alerting them to suspicious activity. 

The effectiveness of CCTV varies greatly depending on the circumstances. According to the Crime Reduction Toolkit of the College of Policing, CCTV reduces 16 crimes out of 100, and 26 crimes out of 100 for vehicle offenses. In light of all the studies the toolkit consulted, they reasoned that CCTV’s viability depends on how and where it is used.  

Can CCTV Surveillance Invade the Right to Privacy

In the midst of the beneficial outcomes, a fundamental question has arisen: when does CCTV surveillance step over the boundary from an effective security instrument to an unlawful invasion of an individual’s reasonable expectation of privacy? A reasonable expectation of privacy refers to areas or components of one’s very own life where a sensible person would expect some degree of privacy. 

These are a few examples of places where a person has a reasonable expectation of privacy:

  1. Rooms of hotel
  2. Residence location
  3. Public areas such as public restrooms
  4. Telephone booths
  5. Changing room
  6. Notable zones of prison 

In U.S. v. Vargas the Court’s analysis centered around whether Mr. Vargas had a reasonable expectation of privacy not to have his front yard constantly observed and recorded by a camera with zooming and panning capabilities hidden on a telephone pole over a hundred yards away for six weeks, and whether his subjective expectation of privacy is rationally reasonable. The court ruled that a video surveillance camera focusing on singular’s front yard in a rural location violated his reasonable expectation of privacy.

Similarly, in Dr. Fairhurst vs. Woodard, the court ruled that the privacy of a neighbor was “unjustifiably invaded” by security cameras installed in a residence. The security camera was found to monitor practically the whole garden and parking space of Fairhurst in the judgment. Woodard could also watch videos on his phone or wristwatch at any moment. The Claimant was disturbed by Defendant’s apparent contempt for others’ privacy and increased the Claimant’s suspicion. Dr. Faihurst demanded compensatory damages as well as injunctive remedies. This data privacy case of Fairhurst v Woodard adds to the continuing discussion about the mainstream of domestic surveillance, as home surveillance technology has become easily accessibly rising privacy concerns.

The general public can now purchase tools that were previously solely available to high-level law authorities and government agents. CCTV has provided individuals and companies with formerly impossible levels of security, but the ease with which security cameras can be installed has also led to considerable abuses. According to cyber law experts, multiple cases of installed CCTV cameras breaching privacy are arising. There have been incidences in which CCTV cameras have captured celebrities and high-profile citizens, and those footage has been sold for money. It is also possible that the data gathered by CCTV cameras will be misused by private companies and organizations for political or terrorist motives, putting public privacy at risk. Modern technology is enhancing efficiency or security at the cost of privacy. 

Laws Governing CCTV Surveillance

The laws governing CCTV surveillance vary widely from country to country. There is a reasonable expectation of privacy in most nations. Like most laws, there are several loopholes and circumstances, but here’s a quick rundown of existing surveillance cameras rules in the global context.

European Union

Data protection is a basic right protected by European law and stated in Article 8 of the European Union’s Charter of Fundamental Rights. CCTV footage in the EU is subjected to the General Data Protection Regulation (GDPR). Non-compliance to GDPR can lead to hefty fines. Prior to installing a surveillance camera in the EU, companies should consider the following:

  1. A Data Protection Impact Assessment (DPIA) must be completed;
  2. If the objective of the processing could be achieved through other measures that are less invasive to the data subject’s basic rights and freedoms;
  3. Whether or if the video surveillance system is appropriate for achieving the targeted aim, and whether or not it is adequate and essential for its purposes. 

United Kingdom

In the United Kingdom, CCTV legislation was enacted in 2012, accompanied by a Code of Conduct in 2013. There are three key sections of CCTV legislation of the UK:

  • The Protection of Freedoms Act 2012

This act mainly focuses on the citizen’s protection of freedom in the United Kingdom

  • The Surveillance Camera Code of Practice 2013 (the ‘SCCOP’) 

The SCCOP Act is intended to maintain a balance between the requirement for CCTV cameras and the public’s desire for privacy.

  • The Data Protection Act (the ‘DPA’)

Individuals have the right to view information stored about them, including CCTV recordings, under the Data Protection Act.

United States of America

The laws governing video surveillance in the USA vary from one state to the next. Installing a residential security camera and recording video is normally lawful in the United States. However, citizens of the United States are guaranteed reasonable expectations of privacy. In States like Alabama, Florida, Kansas; CCTV surveillance in private places is not allowed. As with video surveillance laws, audio recording through security cameras laws also varies from state to state. There are now federal rules in effect regarding audio recording. According to federal law, recording a conversation is permissible as long as one of the parties engaged is aware of it.

India

India, as a developing country, has made significant changes to its information technology rules, yet there are still plenty more to be made. The IT Act of 2000 is the parent legislation governing electronic surveillance. If a camera captures or transmits photos of a person’s private parts, male or female, without consent, the criminal can be charged under Section 66E. The Information Technology Rules, 2021, and the Right to Privacy and Data Protection Bill, 2019 also deal with surveillance. However, there are no detailed guidelines and legislation for CCTV surveillance in India.

Nepal

The Privacy Act, 2018 of Nepal makes it illegal to use CCTV cameras in a way that infringes on people’s privacy. As per the Privacy Rules 2020, information concerning the installation of CCTV cameras for supervising public security and public movement shall be provided to the relevant District Administration Office (DAO). The DAO may appoint an examination and observation team to determine if the companies and individuals operating the CCTV cameras have adhered to legislative requirements. Privacy Rules, 2020 also prohibits the use of CCTV footages for public or commercial purposes. Following the Electronic Transactions Act, anybody who uses a CCTV camera in violation of the law faces legal consequences.

CCTV Surveillance Done Right

If your country does not have any laws regarding CCTV surveillance, you can’t be prosecuted even if you misuse it, right? False. Because there is no legislation, the judge has no set of guidelines to adhere to when ruling over the case. However, each case is treated separately. The judge may still find the acts unreasonable or rule in favor of the victim whose rights were infringed. Countries can introduce CCTV surveillance regulations at any moment, regardless of current laws. So, before you install security cameras, be armed with proper guidelines and know legal limits on CCTV surveillance which will protect you from legal ramifications.

Is Consent for CCTV Surveillance a legal requirement?

As video surveillance varies from one country to another, the requirement of consent for recording videos through CCTV also varies. Consent laws of nations address whether it is allowed to record someone on video or audio without their approval. Usually, consent of one or both parties is required for recording. To comply with GDPR, businesses must put up signs that are clearly visible and readable indicating that CCTV is in operation. It is always better to place security cameras where they can be easily seen. A judge is also less likely to accept video evidence obtained from a camera in a private place such as a washroom or a bedroom unless all parties involved are aware that they are being recorded. 

Are Hidden Cameras Unlawful?

Consent law and the use of hidden cameras are now hotly debated topics. As mentioned earlier, laws vary by state. Evaluation of the legality of hidden cameras is based on where one resides and how it is being used. Hidden cameras are often not lawful to put in bathrooms or bedrooms where someone is staying, or any other area where people would expect to have a higher degree of privacy.However, having hidden cameras in public spaces such as restaurants, outdoor parks, shopping malls, city streets is normally lawful, but it shouldn’t be used to infringe on the right to privacy.

 Some states in the USA, including California, Georgia, Arkansas, Delaware, Kansas, Utah, Hawaii, South Dakota, etc require employees’ written agreement to have a hidden camera watching them. It is vital to remember that conducting CCTV surveillance through hidden cameras in order to conduct a crime or using the contents to perform blackmail against someone is prohibited.

Acceptance of CCTV Surveillance Footage In Court

CCTV has evolved into a crime-prevention tool, and the footage captured by security cameras has become an increasingly crucial piece of evidence in court matters. CCTV footage discloses the true nature of the incident and can help identify the offender. However, the audio and video of the footage, or solely video in the case of video-only footage, must pass particular tests in the respective formats to ensure that the electronic evidence, which is the footage, is not tampered with or is authentic. When video surveillance records a crime in a criminal case, the recording must be convincing enough to outweigh whatever rights the accused may have.

Ld. Courts have recognized the relevance and value of CCTV in evidence during a trial. The genuineness of CCTV footage was mentioned in Gubinas and Radavicius v HM Advocate, High Court at Aberdeen, Scotland, in Para. 59, it was observed that even if all the witnesses say one thing and CCTV shows something different, the electronic evidence will be relied on rather than the visual field evidence given by the witness.

Note: Even if a law enforcement officer requests video footage of your private home security camera, you have the right to say no since recorded images from your home security camera are your private property.

Conclusion

Well and selectively operated CCTV surveillance systems are valuable instruments for addressing security challenges; but, poorly configured systems provide a false sense of security while simultaneously invading our privacy and infringing on other fundamental rights. With the advancement of increasingly sophisticated surveillance technologies, comprehensive data protection and privacy law that addresses the loopholes in existing surveillance frameworks must be implemented. Also, an individual’s privacy must be balanced against the public interest and safety.

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Transgender Persons (Protection of Rights) Act, 2019 and its impact on the third gender

By
Sneha Mahawar
-
0

This article is written by Ishikaa Seth pursuing BA.LLB from University School of Law and Legal Studies, IP University, and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

This article has been published by Sneha Mahawar. 

Evaluation and Impact of the Trans Act 2019 on the Third Gender

The society that we are a part of is organised on the basic tenants of gender and sex. Individuals are characterised as ‘female’ or ‘male’, and this phenomenon is deep-rooted at all levels of society. Although, this gender binary system-based categorisation of sexual orientation is interrupted by gender diversity. This diversification poses a threat to the gender binary system in many ways – via gender fluidity, third or other genders, intersex, genderqueer positions outside of the gender and much more. Transgender people also question this normalisation of the gender binary system that permeates society. There are a multitude of socio-cultural groups of people who identify as transgender in India like – Hijras or Kinnaras, as well as other third gender identities being Jogappas, Shaktis, Jogtas, Sakhi, Aradhis and more. These subgroups deal with extreme discrimination and persecution. They often become a target of various inequitable conducts, including but not limited to verbal, physical and sexual abuse and violence; false imprisonment; denial of admission and services in educational and professional institutions; refusal to participate in inheritance of property; victimisation in educational, professional, health-care, and family settings. This paper aims at underlining some of the major challenges that the community is confronted by in India with due emphasis on the Transgender Persons (Protection of Rights) Act, 2019; and further tries to draw attention to a few recommendations in order to upgrade their position and status in society. 

The objective of the study 

  1. Underlining the complications and discriminations confronted by the transgender people in India. 
  2. Evaluating the Transgender Persons (Protection of Rights) Act, 2019 and analysing its impact on the trans community. 
  3. Drawing attention towards a few recommendations in order to upgrade the community’s position and status in society. 

Introduction: The third gender

Being transgender is not a psychological disorder and hence cannot be “cured” with treatment. Transgender people may feel a constant disconnect between their internal sense of self and their assigned sex. Gender dysphoria is a medical term for this disconnect, which can cause pain and distress in the lives of transgender people.

Experts should be consulted by parents who suspect their children are transgender. The real challenge is determining whether or not a child identifies as transgender and should be done through evaluation by a professional.  

It is important to note that many children who are not transgender question their gender identities. Safer advised parents to be sensitive to their child’s feelings and to accept that there will be no medical intervention until the child reaches puberty. Even so, initial medical treatments can be rectified.

Transgender

The term transgender has a broad scope and is used to identify people whose gender identity does not conform with the sex that they were assigned at birth. For instance, a transgender person may identify as a male regardless of being born with female reproductive organs. 

Sex V/s Gender 

Despite being referred to as synonyms, gender and sex are two entirely distinct concepts. The sex of a person refers to their biologically assigned sexual or reproductive organ i.e., either male or female. 

Whereas, gender is more of a social construct and may not conform to the status that has been biologically assigned. This societal construct typically pertains to behaviours as well as roles that have been assigned and are expected of each gender identity. These gender roles influence the way people act, perceive themselves and others and may vary across cultures and civilisations. It is a range of characteristics that may include gender identity, sex based social structure or biological identity. 

Sexual Orientation V/s Gender Identity 

Sexual orientation and gender identity are often misunderstood as similar concepts, when in reality these two are also two completely different phenomena. Sexual orientation can be described as a person’s sexual, romantic or emotional attraction to another person. On the other hand, gender identity is the person’s sense of self. Transgenders may identify as any sexual orientation including but not limited to gay, lesbian, straight, bisexual etc. For example, a person who has been assigned female sexual organs at birth may transition into a male and be attracted to men. In this scenario, the person’s sexual orientation will be gay even if he was born a female. People change their names after transitioning which may be something neutral or one that conforms to their gender identity. 

Problems Faced by the Transgender Community

Transgender people in India face a number of challenges. This discrimination not only denies TG people equal access to critical social goods such as employment, health care, education, and housing, but it also excludes them in society and places them among the vulnerable groups at risk of social isolation.

Marginalisation, Social Exclusion and Impact of Family Reactions

At the individual, interpersonal, and societal levels, marginalisation is at the heart of exclusion from fulfilling and full social lives. People who are overlooked have little control over their lives and resources; they may become repressed and are frequently the target of negative public attitudes. Their opportunities to contribute to society may be limited, and they may develop low self-confidence and self-esteem, as well as become isolated. The consequences of denigration in terms of social exclusion are similar, regardless of the origins and methods of oppression, whether these are to be found in social attitudes (such as attitudes toward impairment, sexuality, ethnicity, and so on) or social circumstance (such as closure of workplaces, absence of affordable housing and so on).

TG people may face multiple forms of alienation, such as racism, sexism, poverty, or other factors, in addition to homophobia or transphobia, all of which have a negative impact on their mental health. Often Transgender people are forced to the fringe of society due to the stigma attached to their sexual orientation as well as gender identity that differs from the expected heterosexual, non-transgender norm. This oppression often excludes transgender persons from support structures, including their own families, leaving them with limited access to services that others take for granted, such as medical care, justice and legal services, and education. Transgender people are frequently denied access to basic public services such as health care and housing due to oppression and bias surrounding sexual orientation and gender identity and expression, which contributes to significant health disparities.

Transgender people’s familial oppression impedes initial prevention and education efforts, encourages risk-taking actions that can lead to HIV infection, and creates barriers to receiving proper medical treatment and psychosocial support for Transgender youth who are already living with HIV/AIDS. Furthermore, in the absence of other forms of support, many transgender youths are forced to engage in outlawed activities such as sex work in order to survive, pushing them further to the margins of society and exposing them to a greatly increased risk of HIV. Hijras/transgender people face significant discrimination in public places such as restaurants, cinemas, shops, and malls. Furthermore, access to public restrooms is a serious issue that they frequently face. Because there are no separate restrooms for Hijras/transgender people, they must use male restrooms, where they are vulnerable to sexual assault and harassment.

Conflict and Rejection

Transgender people face a variety of challenges within their families. Most families do not accept gender-nonconforming actions in their children, which can begin as young as three to five years old. Many parents experience a range of emotions when learning that their child is transgender or gender genderqueer: some are sad, fearful, and disappointed, while others are shocked, angry, and upset. Few people are willing to support their loved ones without attempting to change them. Anxious parents blame their children’s gender nonconformity on a variety of factors, including mental illness, sexual abuse, confusion, rebellion, or poor social interaction. Believing that the only way to help their kids thrive as adults is by helping them to try and “fit in” with their gender normative friends; trying to impose their children to comply with the gender assigned at their birth through abuse, threats, bullying, and medical “treatment.” Gender nonconforming and transsexual children’s self-esteem and feeling of self are harmed as a result of these reactions.

Homelessness

Among the numerous issues confronting transgender people who are homeless is a lack of housing and services that meet their specific needs. They are living on city streets because they were evicted from their homes for being gay or fled to avoid an abusive situation. Family housing in the shelter system is not available for homeless same-sex couples across the country. Transgender people are not allowed to choose which gender they prefer to live as in the shelter system. Transgender homeless people are routinely abused and harassed in shelters. A lot of shelters for domestic violence refuse to accept transgender people. Homeless Transgender youth are denied education and social support during critical formative years; more than half of homeless Transgender youth report peer discrimination.

Impact of Exclusion and Discrimination

Exclusion and discrimination have major impacts on the lives of transgender persons. This has resulted in the following: 

  1. Dropping out of school earlier 
  2. Leaving Home and Family 
  3. Unable to find regular jobs, have less options than others. 
  4. Being ignored in the community and isolated 
  5. Unable to access various services and Unaware of what they are entitled to 
  6. Mobility, Move to other areas, (such as the city and urban areas) 
  7. Lack of family and social support 
  8. Migrate to other countries for seeking safer livelihood and acceptance 
  9. Rejected from Religion (Esp. Muslim and some Christian Fundamentalist sects) 
  10. Attempt suicide 
  11. Decide to follow their parents to marry opposite sex and then divorce.

Harassment at Educational & Professional Institutions

The transgender community is highly oppressed and vulnerable, and it lags significantly behind on the human development index, especially in the area of education. Because the majority of this community is illiterate or undereducated, they are unable to fully participate in social, cultural, political, and economic activities. In reality, educational institutions are heavily gendered. The social stigma of gender-nonconforming and transgender children and youth is exacerbated by the educational system, which mirrors society in reinforcing strictly binary and patriarchal gender norms.

The social exclusion and interrupted education further limit the livelihood and employment opportunities for the community. There are several factors responsible for their economic deprivations which are as under: 

  1. Exclusion from Family and Society
  2. Discrimination at work place 
  3. Lack of awareness and training in the area of vocational skill development 
  4. Lack of opportunities 

Employers’ lack of confidence in hiring them Economic systematic disenfranchisement exacerbates stigma, discrimination, and violence against gender-nonconforming and transgender children in families and school systems. Those transgender people who survive the hostility they face as children and youth find their employment opportunities limited, both by their limited formal education and by stigma and discrimination in many employers’ recruitment practises, as well as hostility in most workplaces, the absence of gender-appropriate rest rooms, and so on.

Transphobia, Psychological Distress and Victims of Hate Crimes

Transgender people are more likely to face intolerance, discrimination, harassment, and the threat of violence because of their sexual orientation than heterosexual people. This is because of transphobia. Moral, religious, and political beliefs of a dominant group are some of the factors that may reinforce homophobia on a larger scale. Living in a transphobic atmosphere drives many TG people to conceal their sexuality for fear of the negative reactions and consequences of coming out. Negative thoughts or attitudes toward non-heterosexual behaviour, identity, relationships, and community can lead to transphobic behaviour and attitude, which is really the foundation of many TG people’s discrimination. Transphobia presents itself in a variety of ways, including physical attacks, workplace discrimination, and negative media representation.

In their daily life, transgender people confront significant stigma, prejudice, and harassment. The vast majority of Transgender persons learn to manage with this, especially when they have the support of family and friends and join in Transgender community and social networks. However, a large number of Transgender persons, particularly younger Transgender people, were required to comply with stigma, discrimination, and harassment throughout the absence of assistance. Many endured additional stresses as a result of experiences such as relatively high rates of homophobic bullying in schools, as well as physical and verbal abuse. This impacted their mental health, resulting in significant levels of psychological distress, self-harm, and suicidality. Experiences that have a negative impact on mental health: 

  1. Hostility or rejection from loved ones or religious groups 
  2. Hharassment in neighbourhood, bullying, threat of violence
  3. Casual homophobic and transphobic comments on a regular basis 
  4. Prejudice/embarrassed response from professionals 
  5. No protection against discrimination at work, housing, pensions, etc.

Transgender people are frequently victims of hate crimes and violence. They face stigma and discrimination throughout their lives, and are victims of sexual and physical assault, harassment, and hate crimes. TG communities have a big stake in issues of legal inequality. Violence and discrimination disproportionately affect specific groups within the TG community, sometimes at the hands of law enforcement officers. In recent years, there have been numerous reported cases of police brutality directed at transsexuals. Many police departments have been accused of insensitivity, including failing to respond appropriately to violence directed at transgender people.

Transgender Persons (Protection of Rights) Act, 2019 

The Transgender Persons (Protection of Rights) Bill 2019 has been passed by the Parliament. It was passed by the Rajya Sabha on 26th November, 2019 and already passed by the 17thLok Sabha on 5th August, 2019.[1]   

The Transgender Persons (Protection of Rights) Act, 2019 (‘Transgender Persons Act’) seeks to recognise the identity of transgender persons and prohibit discrimination in, inter alia, the fields of education, employment, healthcare, holding or disposing of property, holding public or private office and access to and use of public services and benefits.

Background 

In National Legal Services Authority v. Union of India [3], the Supreme Court of India laid the foundation for transgender rights in India by identifying ‘transgender’ as the ‘third gender’ and establishing several measures to prohibit discrimination against transgender people and protect their rights. The judgement argued for transgender people to be given preference in occupations and educational institutions, as well as the right of transgender individuals to announce their self-perceived gender identity without undergoing sex reassignment surgery.

A private member’s bill was introduced in the same year in the Indian Parliament which was passed by the upper house, a rare feat in itself, since, not a lot of private members’ bills have moved this far. However, while the private member’s bill was still pending, in 2016, the Indian government drafted and tabled its version of the bill in the Parliament which was referred to a Standing Committee of the Parliament for further suggestions.[4] In 2018, a new version of the bill was introduced based on the Committee’s suggestions. At the suggestion of the committee, a new version of the bill was presented in 2018, but with the dissolution of parliament in 2018 and the formation of the new central government in 2019, the bill was reintroduced and finally entered into force.

With the Transgender Persons Act just coming into force, it is critical to grasp the key aspects of the law, the achievements and shortcomings, and the repercussions on employers, particularly in the private sector.

Key Features of the Law 

Definitions

The definitions of transgender persons and people with intersex variation have been made inclusive of males and females, even if the person has not undergone any therapy such as hormone therapy, sex reassignment procedure or any other. 

Non-discrimination

The law is in the strict prohibits of discrimination against transgender persons at educational or professional institutions, healthcare and other public facilities as well as reinforces their right of movement, property and holding of offices. 

Identity Certificate

It administers the right to a gender identity that is self-perceived and further casts a responsibility on the district magistrate for the issuance of a ‘certificate of identity as a TG person, without undergoing a medical assessment. It also provides for a further change of gender to female or male for any person claiming a change in gender. 

Equal Opportunities

It further administers equal opportunities with regard to policy matters for the transgender community. The law has mandated the formulation of certain specific policy measures that would be inclusive of transgender persons. 

Complaint Officer

The law requires every establishment to create a specific designation of a complaint officer. 

Healthcare and Medical Facilities

The law also provides for the establishment of separate HIV surveillance centres for TG persons; the facilities need to be inclusive of healthcare relating to hormone therapies, sex reassignment procedures etc., as well as cover medical expenses by an insurance scheme that is specific to the medical needs of transgender persons. 

National Council for Transgender Persons (‘NCT’)

The law also mandates the constitution of the NCT in order to guide and advise government officials for the auditing of existing policies and the formulation of new ones as well as redressal of grievances.  

Offences and Penalties

Offences such as forcing transgender persons into labour; or refusing accessibility to public facilities; mental, emotional, physical and sexual abuse or violence; and other related offences have now been covered under the act and are publishable by law. 

Latest Compliances for Employers 

The Act also provides for a completely new bundle of compliances for all professional institutions to follow which also includes all private employers. Given these requirements, employers will be expected to update their HR policies as well as strive towards sensitising and training employees to accommodate transgender persons. 

  1. Prohibition discrimination in order to provide a working environment which ensures safety and growth. 
  2. Publish a policy for equal opportunities for transgender people. 
  3. Establishment of infrastructural amenities and facilities such unisex toilets, hygiene facilities, confidentiality, transportation and much more. 
  4. Requirement of designating a complaint officer at every establishment. 

Analysis of the New Law

The Hits

Over the years, there is an urgent need to raise the awareness of different communities and institutions so that they are actively responsible for recognizing the rights of transgender people and treating them with basic human dignity and equality with other genders, whether in educational institutions or guaranteeing employment. Equal opportunities or guaranteed access to medical care and use of public welfare and facilities. This is a step forward for India towards the protection of the rights and identity of transgender people. The Transgender Act shows that India is moving towards a more inclusive and progressive society where people’s opportunities will not be restricted by gender. It is hoped that this will ensure that labour standards comply with international standards.

By enacting this law, India has adhered to the international standards for the protection of human rights envisaged by the Office of the United Nations High Commissioner for Human Rights in 2015, and recommended that countries begin, “[…] upon request to issue legal identity documents that reflect your preferred gender. Eliminate abuse of prerequisites, such as sterilization, forced treatment, and divorce. Similarly, the 2015 WHO report recommended that governments must “[…] take all necessary legislative, administrative and other measures to fully recognize each person’s self-defined gender identity, without medical requirements or discrimination on any grounds.”[5]

Amid large-scale criticism and pan-Indian protests, a more prominent and controversial issue related to the criminal conviction for begging from transgender people, which was part of the previous draft bill, has been dropped. Although begging will continue to be a major problem that must be addressed, by not criminalizing this behaviour under the Transgender Law, the government has at least tried to minimize the need to earn a living without any other means of earning a living. Sexual harassment.

The need in the previous law with a requirement of a medical screening and assessment to get an identification certificate has been abandoned from the new Trans Act. This would assist in reducing trauma as well as harassment that transgender persons have to experience.

And the Misses

The definition of “transgender person” in the Transgender People Act is vague and misleading. The gender identity of transgender people is different from the gender identity provided at birth, while “intersex variants” are based on biological characteristics. Although two subtly separate definitions create differences, the definition of “transgender” is too broad to include “people with intersex variation.”

The penalty for offences under the Trans Act include imprisonment of only up to two years with a fine, which appears to be insufficient for heinous crimes like rape, sexual abuse or violence, sexual harassment or criminal assault. 

The Transgender Persons Act is likely to remain unsatisfactory because it fails to provide a skeleton on a variety of other associated rights, such as marriage rights, adoption rights, pregnancy rights, and so forth – a missed opportunity to be even more comprehensive.

The Transgender Persons Act imposes far too many requirements on the “appropriate government.” It remains to be seen how much emphasis the government will pay to ensuring that all of those duties are met on schedule – leaving transgender people at the mercy of the system for successful implementation of the benefits offered to them under the Transgender Persons Act.

Some people may argue that if the Transgender People Act provides reservations (affirmative action) for transgender people in educational institutions and employment, it may better attract transgender people, and it will be more comprehensive and effective.

Why is the Transgender Community Opposing it

The transgender community has vociferously rejected the Trans Act 2019 stating that the law contains multiple clauses that are in contradiction to their fundamental rights. 

  1. The Act | Claims that transgender persons will have the right to a gender identity that is self-perceived 

Activists | Gender identity cannot be changed in official documents without the issuance of a certificate of identity by the district magistrate which can only be acquired after evidence of sex reassignment surgery has been provided. 

  1. The Act | Provides for the right of residence, forcing any TG person below the age of 18 to live with their natal family. 

Activists | Transgender often face gruesome discrimination and brutality within their own families due to their gender identity. 

  1. The Act | The law now criminalises begging by transgender persons. 

Activists | Although, no efforts have been made for reservation for TG persons in the domains of education and employment. 

  1. The Act | The Act primarily acknowledges Hijras and transwomen. 

Activists | There can be seen little to no emphasis on the gender queer, transmen or even intersex.  

Transgender Persons Act, 2019 V/s NALSA Judgement, 2014 

According to NALSA’s ruling on the Federation of India, transgender people will be regarded as a “third gender” and their rights are protected by the Constitution. It recognizes that gender self-identification is sufficient to empower people. The Supreme Court also held that discrimination based on “gender” is not limited to physical gender, but also includes “innate knowledge of one’s own gender”, that is, the gender identified by transgender people. The court discussed gender identity, acknowledging its indispensable role in shaping an individual’s personality, and as a basic principle of living a dignified life. While this is a historic trial and an important milestone for the transgender community to fight for equal rights, it does not necessarily guarantee their equal treatment, nor does it necessarily guarantee them to live a dignified life.

In light of the 2014 ruling, the parliament presented a series of bills that address the rights of transgender people. The most recent was launched in July 2019 and was later called the Transgender (Protection of Rights) Act 2019. The act has received a lot of negative responses from the TG community because it invalidates and is in contradiction of the NALSA judgment. They claim that the new law is not only inadequate but will also reverse the progress made in guaranteeing the rights of transgender people.

The NALSA ruling recognizes the principle of “self-declaration” without any medical or psychological proof, and is the only legal gender identification required. The verdict also held that any insistence on performing reconstructive surgery is unethical and illegal. The ruling complies with international standards and best practices. For example, the United Nations requires that medical and legal procedures for gender reassignment of transgender people be separated, including the elimination of evaluations by psychologists, doctors or other experts.

According to the Transgender Act of 2019, in order to legally recognize a person’s transgender identity, the bill requires the person to apply for a “transgender certificate”, which will mark their gender as transgender. However, the new rules require the person to submit a psychiatrist’s report in order to obtain a “proof of identity.” In addition, if the person changes their gender to male or female through surgery, they need a “revision certificate” issued by the district judge. The district justice of the peace has the right to judge the “correctness” of the application, although he can show evidence of gender confirmation surgery. The draft rules make the process of gender identification and redistribution cumbersome and intrusive. The rules on how to judge accuracy are unclear. In addition, it does not require administrators to receive training on the subject. By including psychologists, certified physicians, and district administrators, these rules not only exacerbate humiliation and intrusive policing, but also violate the right to “self-declaration” recognized in the NALSA ruling.

Furthermore, the bill stipulates that the abuse of transgender people is a punishable offense, punishable by six months to two years in prison. A similar crime against a cisgender may be punished with life imprisonment or even the death penalty in some instances. Providing milder punishments strengthens the unequal status of the transgender community. The bill is also unclear about opportunities for transgender people to gain civil rights and benefits. The NALSA decision ordered the government to formulate affirmative action measures to “increase the presence of transgender people in educational institutions and public appointments.” However, the new rules do not clearly stipulate those affirmative actions should be taken in the areas of education, health and employment, or civil rights related to marriage, adoption, and property.

Supporting Inclusion

The Diluted Transgender People (Protection of Rights) Act of 2019 did not consider the basic rights, physical autonomy, and dignity of the transgender community, and violated the core of the NALSA ruling. By subjecting them to censorship by psychological, medical, and public authorities, the right to gender self-determination was abolished.

However, rulings such as the repeal of Section 377 by the Supreme Court provide encouraging signs that the state values ​​the recognition of different relationships and families. In order to protect the interests of the community, the law must guarantee equal social, economic and civil rights and prevent abuse and discrimination. It is also important to consult the transgender community before formalizing the rules. The public consultation process should be more inclusive and allow enough time to discuss the rules. The state should consider extending the consultation process until people can safely mobilize to express their concerns effectively. Providing transgender communities with the same constitutional rights is essential to empower them, reduce social stigma, and improve their socio-economic status.

Conclusion and The Way Forward 

It can be deducted that though the colonial heritage acknowledges gender diversity in temple sculptures, myths and religious treatises, transgender people in India today still face intolerance, stigma, discrimination and violence. Human rights violations against transgender people violate families, educational institutions, workplaces, law enforcement agencies, healthcare institutions, the media, and society as a whole. Affirmative action is needed to eliminate stigma and discrimination associated with the community. The following actions can help improve access:

  1. Awareness of gender variety, as well as the need to protect transgender adolescents from hostile educational situations, is critical. Schools and teacher education programmes are critical places for addressing TG issues and concerns. Schools can employ the following policies and procedures to help enhance health and safety among TG students.
  1. A special school for transgender students should be developed, as well as free education from kindergarten to grade twelve.
  2. Encourage students to respect each other as well as Initiate strict measures against bullying, harassment and violence.
  3. Determine “safe areas,” such as counsellors’ offices, dedicated classrooms, or student groups, where TG youth can obtain support from administrators, instructors, or other school personnel.
  4. Encourage student-led and student-organized school organisations that promote a safe, inviting, and accepting environment in the classroom.
  1. The community has a culture of folk songs, art and dance that is unique to them. It provides a strong sense of strength and identity to the community. These cultural and artistic expressions are an integral part of the community and must be combined with people’s livelihood activities to ensure more community participation. Efforts should be made to provide sufficient financial support as a link to employment opportunities.
  2. The community needs to be included in pension programmes in order to enjoy their benefits. 
  3. Inform the police about the issues facing the transgender community. In the event of dishonourable comments and harassment, the law will be followed.
  4. Make the masses aware of their problems. The impulse of conscience is essential. Local authorities, policy-makers, schools and families need to be further educated on how to accept children with gender differences, treat people of different genders and gender identities equally, and implement policies and plans in a way. “friendly” rather than hostile.
  5. Transgender human rights issues should be highlighted in the media and other public forums to raise public awareness and improve the ability of transgender people to realize these rights. The stigmatization of media reports must stop.
  6. Doctors and healthcare providers must meet the specific needs of all transgender people. Advocacy activities should be carried out for counsellors, psychiatrists and other mental health professionals to prevent psychosocial harassment and discrimination.
  7. Parents must be aware and informed in order to support their gender nonconforming or transgender children, despite their discomfort and deeply held normative ideas. Parents must pay attention to the possibility of their child being subjected to violence outside home– at school, in the extended family, on the playground etc. – and provide appropriate help. They must also be aware of the increased stress experienced by a gender hetero normative or transgender youngster when he or she enters puberty and experiences dysphoria when sexual organs traits conflict with his or her sense of gendered identity.
  8. After consulting with community groups and human resources professionals with expertise in the field of diversity and inclusion, workplaces in the public and private sectors should increase the sensitivity of employers and employees to transgender issues. Anti-discrimination policies should be developed and applied meaningfully to recruitment, retention, promotion, and employee benefits processes. Sexual harassment policies in the workplace should include transgender people.
  9. Transgender inclusion must be in policy and institutional reforms that permit access to social security systems aimed at the poor and other vulnerable groups.

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Vertical agreements under Competition Act, 2002

By
Diganth Raj Sehgal
-
0
Image source- https://rb.gy/2ozay6

This article is written by Himanshi Garewal from Tamil Nadu National Law University, Tiruchirappalli and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

This article has been published by Diganth Raj Sehgal.

Introduction 

The Competition Act, 2002 (“the Act”) was enforced with an objective to regulate markets in pursuance to keep them competitive. Market economy accomplishes better in the presence of competition. The economic reasoning behind free-market economy is that freely performing markets lead to the efficient allocation of a nation’s scarce resources and provide consumers with a plethora of choices. The Act regulates any kind of anti-competitive behaviour by market players to ensure a competitive environment and consumer welfare. 

The Act prohibits agreements that bear anticompetitive conduct. Section 3 of the Act specifically deals with Anti-competitive agreements. Further, Anti-competitive agreements can be classified in two kinds: Horizontal Agreements and Vertical Agreements. 

Precisely, the Vertical Agreements are Agreements between firms performing at different levels of the production or distribution chain. For instance, agreements between manufacturers and distributors. 

Example 1: a manufacturer of clothing has an agreement with the retailer that entails the retailer to promote the products in return for lower prices. 

Example 2: an agreement between a retailer and manufacturer wherein retailer consents to purchase or deal goods with only a single manufacturer. 

Example 3: an agreement where the manufacturer intends to supply a single or selected number of retailers.

Grasping the concept of vertical agreements 

Firstly, the term ‘Agreement’ is defined under Section 2(b) of the Act which states an Agreement encompassses: 

1. arrangement; or 

2. understanding; or 

3. action in concert. 

The arrangement or understanding or action can be formal or can be in embodiment of written form. Also, the arrangement or understanding or action can be informal or can be in embodiment of unwritten form. The arrangement or understanding or action can be enforced by law. Also, it can be that the arrangement or understanding or action is not enforced by law. 

Under the combined reading of Sections 3(1) and 3(2) of the Act, the Anti-Competitive agreements are prohibited. 

Any agreement formed between the following parties: 

1. Enterprises; or 

2. Association of enterprises; or 

3. Persons; or 

4. Association of persons.

In relation to production, supply, distribution, storage, acquisition or control of goods or provision of services, such that the said Agreement formed causes or likely to cause an Appreciable Adverse Effect on Competition (AAEC) is prohibited. Further, such an Agreement shall be void in the eyes of the Competition Law.

Section 3(4) of the Act deals with vertical agreements. In accordance with Section 3(4), the vertical agreements are entered amongst Enterprises or Persons at different stages or levels of the production chain in different markets in relation to production, supply, distribution, storage, sale or price of or trade in goods or provision of services. 

Production chain at different stages/levels making a vertical agreement. 

In simple words, in order to have a vertical agreement, an agreement can be entered between raw material supplier and manufacturer; between manufacturer and wholesaler; between wholesaler and retailer, since each of them is on the different stages of the production chain. The agreement can be related to production, supply, distribution, storage, sale or price of the trade-in goods or provisions of service. 

It is pertinent to note that in circumstances where vertical agreement contravenes Section 3(1) of the Act, that is, causes or likely to cause an AAEC on competition shall be prohibited and shall be void.

Vertical Agreement and Role of Market Power 

It is pertinent to note that, unlike horizontal agreements, vertical agreements do not include a fusion of market power. However, the vertical agreements impact competition in the market only in the circumstance of firms inflicting vertical restraint has a high degree of market power. Also, in such circumstances, competition from other firms’ products (intra brand competition) is definient. In contrast, in the circumstance wherein the firm imposing vertical restraint has not adequate market power or there exists adequate intra-brand competition, then the prohibition on competition between the distributors and retailers pertaining to the identical brand may not impact on competition in the market. Hence, the factor of market power must be assessed meticulously while determining cases of vertical agreements. 

The vertical agreements are not per se anti-competitive but considered to be anti-competitive, if these agreements cause or likely to cause AAEC in India. If vertical agreements are met with factors stipulated under Section 19(3) of the Act. For instance, these agreements foreclose the market, limit inter-brand and intrabrand competition in the relevant market then such vertical agreements are anticompetitive and void. 

Types of vertical agreements 

Vertical Agreements can be categorised into five kinds: 

1. Tie-in arrangement;

2. Exclusive supply agreement; 

3. Exclusive distribution agreement; 

4. Refusal to deal;

5. Resale price maintenance. 

Tie-in arrangement 

Tie-in arrangements is an agreement wherein a seller sells one desirable product on a precondition that buyers shall purchase a second less desirable product or service. The former product shall be known as a tying product and the latter shall be known as a tied product. It is not required that the tying product and the tied product must be identical to each other in characteristics. Not all tie-in

arrangements are illegal and not all illegal tie-in arrangements are per se illegal. The plaintiff who raises the claim of per se impingement, has the burden of proof to satisfy the following conditions: 

1. The seller has put condition that sale of one product shall be done on the purchase of the second product by the buyer 

2. The two products bear different characteristics and are separate products. 3. The seller has adequate position in the irrelevant market for the tying product in pursuance to execute the tie-in. 

It is precisely noted, for the factor of offence of tying under the ambit of the Act, it is vital that the consumer has been coerced into buying both the tying and tied product that in consequence by virtue of their characteristics or commercial utilization bear no link with the issue of main contract. 

At some instances the tie-in arrangement and bundling seems to be alike. However both are technically different.

The competition law concerns that could arise from tying or bundling in a relevant market are the followings: 

1. Likelihood of foreclosure on the market of tied product.

2. High entry barriers in both the market of tying and tied products. 

It should be noted that tie-in arrangements can cause “abuse” in view of Section 4(2)(d) of the Act, that constitutes listing as abuse as well. Prominently, presence of dominance in the market of tying products is a requisite factor for determining whether tying is abusive in competition. Hence, the first and foremost factor in the alleged case of abusive tying is to erect that the firm possesses a dominant position in the market of tying products. In addition tie-in arrangement concerns the competition law since such agreements restrict competitors free access to the market for the tied product due to the firm imposing tying conditions has the competence to leverage in another relevant market. That conclusively is abuse of dominance. Forbye, the consumers are coerced to renounce their free choices between competing products. In light of Section 4(2)(d) of the Act does not mandate factual evidence of foreclosure but it is sufficient to manifest that tie-in arrangement could create a foreclosure effect on the market. 

Exclusivity 

Exclusive arrangements mandate a buyer to purchase all of its essential or a huge part only from one dominant seller or arrangements which mandate a supplier to sell all of its products or services or a huge part to a dominant player. 

There are two kinds of exclusive agreements, these are: 

1. Exclusive distribution agreement- includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods 

2. Exclusive Supply agreement- includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person

The exclusivity aspect may not be always present as a contractual clause and the same can be manifested from the way of conducting of parties engaged. 

The exclusivity poses a serious concern in circumstances of dominant enterprises and their suppliers since exclusive supply agreement entered by dominant enterprise can impulsively lead to foreclosure of market to competitors. Thus, in circumstances of adequate and sufficient market power the exclusive agreements can be a source of abuse of dominance. 

The other possible competition concerns with respect to exclusive agreements are primarily restricted intra-brand competition and partitioning of market which eventually leads to price discrimination. Forbye, when a large number of suppliers induce exclusive distribution, this practice can induce collouison, both at the suppliers stage and the distributors stage. 

However, the exclusive agreements bear pro-competitive effects as well. For instance, safeguard on investment done by sellers, avoid the occurrence of free riding from buyers end in circumstance of buyer’s exclusive agreement and avoid free riding upon investments done from the buyers end in circumstance of supplier exclusive agreement. Further, it helps in keeping a good brand image by thrusting uniformity and quality authentication on distributors. 

Refusal to deal 

Refusal to deal is a concept wherein one firm denies or refuses to sell to another firm, desiring to sell only at a price that is recognized to be excessive pricing or is desiring to sell under conditions that are implausible. The keypoint of competition uneasiness arises when a firm has a dominant position and denies or refuses to deal with another firm and that refusal proves to be detrimental to the competition and consumers. 

The refusal to deal can embody in the following conducts, these are: 

1. Refusal to supply a product or service (that are obtainable from market) to non-competitors 

2. Refusal to supply a product or service (that are obtainable from market) to competitors 3. Cease supplying to third parties 

4. Denial to supply a product or service that has never been accessible on the market 5. Denial to grant licensing of Intellectual Property rights

Resale Price Maintenance (RPM)

In accordance with Explanation to Section 3(4) of the Act, the RPM is defined as, includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged. With the mechanism of RPM, a manufacturer and its distributors consent that distributors shall sell manufacturers product at price stipulated. In circumstances where the reseller denies to keep up with the prices, either furtively or openly, the manufacturer can opt to cease doing business with the reseller. 

RPM can be carried through individually or collectively. Under the ambit of individual RPM, the supplier stipulates the retail prices at which the products are to resold. Likewise, under the ambit of collective RPM, suppliers stipulate the retail prices. When RPM is executed, the price of products are imposed alike regardless of distinct location, quality and characteristics. 

Section 3(4)(e) of the Act does not specify with regard to anti-competitive aspects of RPM. but, here are two classifications pertaining to RPM that are recognized as anti-competitive. These are as follow: 

1. Fixed price: it is a contract where prices are fixed for a product and no adjustments are allowed unless specified in the contract. The contract is subjected to negotiations when there are specifications present in the contract. The contract puts the contractactor to a potential maximum risk emanating from cost escalations. 

2. Minimum resale price: in this aspect of agreement, a manufacturer stipulates a minimum price above which the retailers shall sell the products. The manufacturer in such a scenario keeps watch on the conduct of retailers in order to make certain their conduct is in accordance with the condition imposed on them. In circumstance, it is fetched that retailers are deviating from pricing below the stipulated price, they are terminated or subjected to termination. 

It is prominent to note that vertical restraints such as RPM can avoid price competition amongst wholesalers, distributors or dealers which conclusively impact on consumers adversely. An agreement of RPM is subject to the rule of reason. Section 3 of the Act mandates that such agreements should be scrutinized meticulously and if fetched to be causing or likely to cause AAEC then such an agreement is void.

Conclusion 

Vertical agreements are not illegal per se and subjected to rule of reason scrutiny by the competition law regulators. Any kind of vertical restraint agreement is scrutinized considering both the anti-competitive and pro-competitive aspects of it. If efficiencies emanating from pro-competitive aspects of agreement outweigh the anti-competitive aspects then such vertical restraint shall not be considered as causing or likely to cause AAEC on competition, thus the agreement shall be lawful. In contrast, when anti-competitive aspects of vertical restraint agreement outweigh pro-competitive aspects that inevitably causing or likely to cause AAEC on competition then vertical restraint agreement shall void and the Competition Commission of India can impose penalty upon the parties to the agreement under Section 27 of the Act after the completion of the all inquiries by the Commission. 

References 

● The Competition Act, 2002 

● Abir Roy, Competition Law in India, 2nd Edition

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Non-retroactivity of Criminal Law : principle and its position in Constitution and International Law

By
Abanti Bose
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0
federal system
Image Source: https://rb.gy/dlbcyk

This article is written by Mir Adnan Zahoor pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho), Zigishu Singh (Associate, LawSikho) and Indrasish Majumder(Intern at LawSikho).

This article has been published by Abanti Bose.

Introduction 

In criminal law, there is universal recognition to the principle of the prohibition on retroactive criminalization, meaning that certain conduct cannot be said to be criminal unless there is a law establishing its criminalization, and therefore any ex post facto crime-creation shall be considered as invalid. This principle is captured by the Latin maxim Nullum crimen sine lege, meaning “no crime without law”, and it is interchangeably used with Nulla poena sine lege which means “no penalty without law”. The maxim(s) have been held to be a fundamental facet of criminal justice and rule of law. The nullum crimen sine lege is also referred to as the ‘principle of legality. The rationale behind the principle is to accord an individual the ‘fair warning’ by way of a previously published law, which in clear and uncertain terms declares particular conduct as criminal. The principle of legality assumes that the law is to be enforced against individuals who are rational and autonomous, and that law shapes and influences their choices or decision-making. Therefore, the law which possesses such a power cannot be unknown or unpublicized; rather individuals should be given fair notice of the law so that they conform to its requirements. Any departure from this principle is viewed as lending support to unrestricted discretion of the judges and police. Further, in its extreme form, the neglect or omission of the principle of legality has been likened with ‘the abandonment of rule of law and unfettered authoritarian state’. The importance of the ‘Principle of Legality” can be gauged from the fact that in the United Nations, four-fifths of the member states have given this principle the position of a constitutional guarantee in their national law. Furthermore, the principle has been incorporated in various regional and international conventions. The Constitution of India under Article 20(1) provides for the protection against retroactive laws by prohibiting conviction for an act that was not an offence at the time of its commission, and the prohibition against retrospective enhancement of punishment to the convict. 

In the following sections of this article, an overview as to the scope and purpose of the principle of nullum crimen sine lege (the principle of legality); its position in the Indian constitution and international law, and finally the conclusion will be provided.

Scope of nullum crimen sine lege

Nullum crimen sine lege or the principle legality is considered to be imperative for a fair trial. The non-recognition of nullum crimen sine lege shall not only deprive an individual of a chance to regulate his conduct but also will also remove the limits upon the punitive power of State under criminal law. And broadly speaking, the principle is not restricted to the prohibitions against the application of ex post facto law but entails other guarantees as well. The principle of legality is constitutive of the following four guarantees: one, the requirement that the criminalization of certain conduct is foreseeable (nullum crimen sine lex praevia); second, the requirement that laws are to be narrowly interpreted, thereby leaving no scope for judicial creativity (nullum crimen sine lex stricta); third, the requirement that the laws laid down are defined precisely so that accessibility and foreseeability of the law are secured (nullum crimen sine lex certa); and fourth, the requirement that laws are rendered into a codified law (nullum crimen sine lex lex scripta). 

The foregoing four guarantees of this principle are essential for the making of the law that is accessible, foreseeable, and predictable, all of which is a legitimate expectation of the state which is democratic and accepts rule of law as a constitutional norm. Therefore, the principle of legality serves as a safeguard against the arbitrary power of the state.

Purpose of nullum crimen sine lege  

As mentioned in the foregoing, the principle of legality prohibits retroactivity in the application of criminal law. Additionally, the guarantees under the principle cumulatively forge compatibility with the doctrine of separation of powers. In the area of legislation, the principle informs the legislature to make laws that are precise, uncertain, and not vague. Further, the principle seeks to ensure that interferences against the individuals by the executive are not undefined and excessive. Finally, the principle of legality, as an interpretative tool, places limits on the extent to which the black letter of the law reasonably allows the unelected judges to interfere with the liberty of an individual. Thus, it should not be unfair to state that, just as the individuals are required to abide by the publicized law, so too is the legislature tasked to pass the laws that are clear, uncertain, and accessible, while the judiciary is duty-bound to not to convict an individual for an offence which has not been declared as criminal by the text of the law.

Constitution of India and nullum crimen sine lege 

Article 20(1) of the Indian envisages prohibition on conviction and enhancement of punishment under an ex post facto law. Article 20 (1) provides as follows: “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

The Supreme Court of India in Rao Shiv Bahadur Singh v. Vindhya Pradesh held that the principle of non-retroactive is of “paramount importance” and described the retroactive crime-creation and punishment as “unjust and inequitable”. Further, the case of Soni Devrajbhai Babubhai v State of Gujarat rejected the arguments of the appellants who had sought to apply the provision of newly added provision related to dowry death under Section 304-B of the Indian Penal Code to the alleged incident that occurred prior to the date of insertion. In the said case, the alleged incident had taken place in August 1986 and Section 304-B was enacted in November 1986. The Court held that application of Section 304-B retrospectively would result in the denial of the protection given under Article 21(1) of the Constitution. 

In the landmark judgment of Selvi v. State of Karnataka, the High Court held that the guarantees under Article 20 are the ‘fundamental protections that control the interaction between the individual and criminal justice system’. The Court while delineating the interplay between guarantees of Article 20 and 21, emphasized that the duo has acquired the non-derogable status even during the national emergency pursuant to the Forty-fourth Amendment Act, 1978. 

Notwithstanding the foregoing, the interpretation of the Supreme Court with respect to Article 20(1) has been viewed as being restrictive. According to Chandra and Satish, the Supreme Court’s interpretation has caused ‘problematic distinctions between criminal and civil liability; and procedural rules and substantive provisions’, thereby inhibiting, what otherwise is, the broad scope of Article 20(1) guarantee. It has been argued by them that such an interpretation of the Supreme Court is ‘insensitive to the material disadvantage it can cause to the accused’. For example, on the basis of criminal-civil distinction, the Court has allowed retrospective civil liability in contradistinction to criminal liability, or that ex-post application of tax penalties for the failure to pay tax has been upheld by the Court. Similarly, on the basis of procedural-substantive distinction, the Court has upheld ex post facto procedural changes (like change in court) thereby holding no fundamental to of being tried by a particular court or procedure; and the Court even upheld the application of a new evidentiary rule to the trial where the offence has been committed earlier. Following Chandra and  Satish, the Supreme Court’s very own expansive ‘due process interpretation’ read into Article 21 in recent years needs to be deployed as it has made room for the prohibitions which previously could not be made in view of the formalistic distinctions mentioned hereinabove. Further, in absence of the fair notice of a publicized law, the individuals are faced with the threat of the State’s excesses and are retrospectively condemned for the exercise of their liberty.

Noteworthily, unlike the Indian Constitution, the American Constitution renders the retroactivity as void and therefore such retroactive laws can be struck down on the touchstone of constitutionality by the United States Supreme Court.

International law and nullum crimen sine lege

Post World War II nullum crimen sine lege or the principle of legality has acquired recognition in international as well as regional human rights covenants. The principle was first given recognition in the human rights instruments namely, Universal Declaration of Human Rights, 1948 (Article 11, UDHR) and European Convention of Human Rights, 1950 (Article 7, ECHR), and later in the International Covenant of Civil and Political Rights (Article 15, ICCPR). In conventions pertaining to international humanitarian law, the principle of legality has been included in the Geneva Convention III (Art. 99 (1)); Geneva Convention IV (Art. 67), and Additional Protocol I (Art. 75 (4) (c)). More recently, the Rome Statute of the International Criminal Court also recognized the principle of nullum crimen sine lege in its Article 22.

In addition to the foregoing, other regional human rights treaties such as the American Convention of Human Rights (Article 9, ACHR) and African Charter of Human and Peoples’ Rights (Article 7(2), ACHPR) have also accorded recognition to the principle of legality. 

The International Court of Justice has held the principle of nullum crimen sine lege to be one of the ‘most sacred principles of criminal law’. Further, the European Court of Human Rights (ECtHR) has held this principle to be one of the jus cogens principles, meaning that rights that flow from it are non-derogable and peremptory in nature. In the 2015 report of the United Nations Working Group on Arbitrary Detention, it has been stated that the ex post facto increased sentence of a prisoner, who otherwise has fully served the prior sentence, is violative of Article 15 of ICCPR and customary international law.

From the foregoing discussion, it can be clearly established that, under international law, a person cannot be held guilty under an ex post facto law, and neither can an individual be sentenced to a heavier punishment under an ex post facto law than the one which was imposed on him at the time of earlier sentencing. 

Conclusion : non-retroactivity as quintessential for rule of law

From the foregoing discussion, it should not be an overstatement to describe the principle of non-retroactivity of nullum crimen sine lege is a quintessential rule of law. From the standpoint of individual rights, the principle heralds for the guarantee of establishing the right to a fair trial. The principle by offering an individual a “fair warning” through pre-established laws in its essence acknowledges the individual autonomy of choice-making on the basis of a known law. Latent in this is the linkage between an individual’s personal liberty and accessibility of the law (a facet of Rule of Law). Nullum crimen sine lege is not only the recognition of individual liberty alone but also a means of protection against the excesses of the State’s punitive power. Just as it is important for the State to exercise its coercive powers to establish its social control for the public good, so too it is important to place limitations on the exercise of such power to prevent State arbitrariness. As the Canadian academic Broomhall aptly puts it, “The principle derives in part from a consciousness of the serious consequences for the accused that may flow from the criminal justice process, and therefore of the need to protect relatively powerless individuals from the interference of State (or inter-State) legal machinery”.

Further, it has been argued that the recognition to the nullum crimen sine lege both at the domestic and international level has led to the embracing of the doctrine of strict liability, whereby the accused is not convicted unless it is shown that the conduct in question is criminalized by a law enacted prior to its commission. This has been described as a departure from the doctrine of substantive justice, which provides for the punishment to the conduct of the accused of the harm caused by him to society irrespective of the fact whether such conduct was proscribed by a clear law before its commission. The latter doctrine’s replacement by the former doctrine, which favours the accused, has been entailed particularly by the recognition of nullum crimen sine lege in the instruments pertaining to international humanitarian law and human rights.

In summation, any neglect or repeal or dilution of the nullum crimen sine lege shall not only ooze out rights guarantees under the principle that are recognized both in national and international law; but also systematically disadvantages an accused in a criminal trial wherein unfair, inequitable, and unreasonable burden is placed on him for proving his innocence. This is coincidental with the abandonment of the idea of Rule of Law and embraces of an authoritarian state as, in history, it was exemplified by Nazi law in 1935 by repudiating the long-standing principle of legality in the German Criminal Code. Thus, this principle serves as a necessary safeguard in a liberal constitutional order, where the State’s unconstrained and indeterminate powers to criminalize are prohibited by upholding the liberty of an individual.  

References

  1. https://academic.oup.com/jicj/article-abstract/5/4/1005/792798?redirectedFrom=fulltext
  2. https://www.oxfordlawtrove.com/view/10.1093/he/9780198777663.001.0001/he-9780198777663-chapter-3
  3. https://www.cambridge.org/core/books/abs/crimes-against-humanity/principles-of-legality-in-the-london-charter-and-postcharter-developments/2225C605E6267574B5BC81D4266E5410
  4. https://www.cambridge.org/core/books/abs/principle-of-legality-in-international-and-comparative-criminal-law/legality-in-criminal-law-its-purposes-and-its-competitors/E90DE2935156E2D2AD3EBD1E29C33A4B
  5. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1972243
  6. https://www.cambridge.org/core/books/abs/crimes-against-humanity/principles-of-legality-in-the-london-charter-and-postcharter-developments/2225C605E6267574B5BC81D4266E5410
  7. https://www.bloomsburycollections.com/book/rome-statute-of-the-international-criminal-court-a-commentary/chpart-3-general-principles-of-criminal-law
  8. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3156121
  9. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3156121
  10. https://www.icj-cij.org/public/files/case-related/53/053-19710621-ADV-01-02-EN.pdf
  11. https://undocs.org/A/HRC/30/36
  12. https://www.penguin.com.au/books/the-rule-of-law-9780141962016
  13. https://www.bloomsburycollections.com/book/rome-statute-of-the-international-criminal-court-a-commentary/chpart-3-general-principles-of-criminal-law at p. 953
  14. https://www.oxfordlawtrove.com/view/10.1093/he/9780199694921.001.0001/he-9780199694921-chapter-2

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Impact of Justice K.S. Puttaswamy v. Union of India on Aadhaar based services especially electronic signature

By
Oishika Banerji
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0

This article has been written by Saswati Soumya pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. 

This article has been published by Oishika Banerji. 

Introduction

An Aadhaar number can be authenticated by another entity for identification, so that such person can receive a subsidy, benefit or service, for which the expenditure is incurred from, or the receipt from, forms part of Consolidated Fund of India. Before the passage of the judgment, any entity- be it a corporate or an individual,  was allowed to state that an Aadhaar number must be used to establish the identity of an individual for “any purpose”, under “any contract” and not as per law. Section 57 of the Aadhaar (Targeted Delivery of Financial and Other subsidies, benefits and services) Act, 2016 (“Aadhaar Act”) was attacked to be unconstitutional on this basis. This was declared unconstitutional because it would lead to commercial exploitation of an individual’s biometric and demographic information by private entities. Since this would impinge on the right to privacy of such individuals, this section was declared to be unconstitutional. It is to be noted that, identity information in respect of an individual includes Aadhaar number, biometric information and demographic information. Biometric information includes a photograph, fingerprint, iris scan and such other biological attributes of an individual as may be specified by the regulations under the Aadhaar Act. Demographic information constitutes information relating to the name, date of birth, address and other relevant information of an individual, as may be specified by the regulations under the Aadhaar Act to issue an Aadhaar number. However, it shall not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history. The immediate effect of the Aadhaar judgment was that private entities cannot use Aadhaar numbers for authentication. By virtue of this judgment, the banks cannot force the mandatory linking of Aadhaar with bank accounts & the telecom companies cannot mandate Aadhaar based e-KYC for issuing mobile connections.

It is evident that the aforesaid concepts do not include the concept of electronic signature and the realities of e-contract, wherein parties may not know each other or may not see each other. The two basic essences of e-contracts rest on consensus ad idem and quid pro quo. The Information Technology Act, 2000 provides a framework for legally recognizing the transactions that are carried out via exchange of electronic data and other means of electronic communication, which  involves the usage of alternatives to paper-based methods of communication. However, if the contract relates to the sale or conveyance of immovable properties, or the contract relates to capturing the interest in such property, then it is required to be on paper. The following documents cannot be electronically signed and must be executed using traditional “wet” signatures in order to be legally enforceable, namely, (a) negotiable instruments such as promissory note or a bill of exchange other than a cheque, (b) powers of attorney, (c) trust deeds, (d) wills and any other testamentary disposition and (e) real estate contracts such as leases or sale agreements. 

E-signatures 

The electronic equivalent of a physical signature or a handwritten signature is called an electronic signature. The UNCITRAL Model Law on electronic signatures provides the technical aspects of electronic signatures as well as the model law for authentication and verification of such signatures. “The common purpose of e-sign techniques is to provide functional equivalents to (a) handwritten signatures, and; (b) other kinds of authentication mechanisms used in a paper-based environment (e.g. seals or stamps).” The definition of electronic signature could have multiple interpretations such as a digitized version of hand signatures & PIN or OTP based e-sign etc, thereby referring to different modes of electronically signing a document. Section 5 of the IT Act, 2000 provides legal recognition to electronic signatures and prescribes that, wherever law requires authentication by signing, it shall be sufficient if the signatory affixes an electronic signature in the manner prescribed by the Government. Section 2(a) of the  IT Act, 2000 specifies the meaning of an electronic signature. “An electronic signature means authentication of any electronic record by a subscriber through the electronic technique specified in the Second Schedule and includes a  digital signature.” The two electronic authentication techniques that are specified in the Second Schedule of the IT Act, 2000 are Aadhaar, i.e., Aadhaar e-KYC or other e-KYC services, i.e., offline Aadhaar e-KYC, PAN-based e-KYC.

From an authentication perspective, the electronic signature of users plays a critical role for identification purposes. It is an application of legal technology generally and optical character recognition (“OCR”) technology specifically in the space of authentication of documents. The issue of electronic signature can be viewed from the perspective of contract act, stamp law and also from the perspective of the law of evidence. These points of view will enable answering the question about understanding whether or not an agreement that is insufficiently stamped will be considered as admissible evidence or not. In all the perspectives, the analysis has to be made if the electronic signature can be “attributed” to a person or not. In simple terms, this would mean that the signature would be attributed to the signatory if he/she is the originator. If the originator has authorized another person to sign on his/her behalf, then the signature would still be attributed to the originator. In the scenario wherein a contract is executed by an information system that is programmed  to operate automatically by the originator, then the execution or the signing of such a document shall also be attributed to the originator. 

Furthermore, Article 13 of the Model Law on Electronic Commerce states that “ In the case of a paper-based communication, the problem would arise as the result of an alleged forged signature of the purported originator. In an electronic environment, an unauthorized environment may have sent the message but the authentication by code, encryption or the like would be accurate.” From a contract law perspective, such identification is important for evaluating the enforceability of the contract and assessing if such a contract would be considered as a valid instrument or not. Additionally, the documents need to be evaluated from the perspective of Sections 65A and 65B of the Evidence Act, 1872 that provides for recognizing electronic records and admissibility of electronic records.  For copies of electronic records, a certificate under Section 65B (4) is mandatory, which shall identify the record and shall describe the manner of production of such copy. It shall give details of the device that is involved in the production of an electronic record. Such a certificate must be signed by appropriate personnel, i.e., “a person occupying a responsible official position concerning the operation of the relevant device or the management of the relevant activities”. Such certificate shall not be required if the original document is being produced as a piece of evidence before the court of law. 

The Aadhaar judgment has not dealt with the authenticity guaranteed by electronic signatures as such. However, it has an impact on the ways of conducting authentication by private entities. Post the Aadhaar judgment, private entities have shifted from conducting online Aadhaar e-KYC to offline Aadhaar e-KYC services. This shall not mean that such entities would not follow the electronic authentication techniques that are specified in the Second Schedule of the IT Act, 2000.  In 2019,  the Aadhaar and other laws (Amendment) Act, 2019 was passed. This amended Section 11A of the Prevention of Money Laundering Act, 2002. This dealt with verification of identity by a requesting entity, i.e, (“RE”). This amendment allowed an RE, a banking entity, to carry out verification of identity by authentication under the Aadhaar Act. The same year also witnessed the amendment of the Second Schedule of the IT Act, 2000. Under this amendment, the word “other”  was inserted after Aadhaar e-KYC. Post the amendment, the provision read as “e-Authentication technique using Aadhaar and other e-KYC services”.

The above legal landscape has enabled private entities to enter into the space of Aadhaar based services especially electronic signatures. On the other hand, if email or another form of authentication is used to sign a document electronically, then it is prudent to follow industry best practices that need to be followed in order to satisfy the requirements of the IT Act, 2000, namely;

(a)  A mechanism for verifying the identity of the party be included. This can occur when a verification request is sent to a unique email address or when a OTP is sent to the signing party’s mobile phone number, 

(b) The consent of the signing party is obtained to conduct business electronically, 

(c) The signing party’s intentions of signing the document electronically by using a particular method be demonstrated, 

(d) The process is tracked securely and there are audit trails that logs each step, and 

(e) The final document is secured with a tamper evident seal. 

From a contractual perspective, a contract signed by electronic signature must exhibit that the reliability conditions are followed. This holds true for the two types of methods wherein electronic signatures are used and are thus deemed to have the same legal status as handwritten signatures, namely, 

(a) There are electronic signatures that combine an Aadhaar identity number with electronic Know Your Customer (eKYC) method such as one time password. This method is known as the eSign online electronic signature service; and 

(b) There are digital signatures generated by an “asymmetric crypto system and hash function”. In such a system, a long term ( 1 to 2 year ) certificate based digital ID is issued to the signer. This is stored on a USB token and this is used along with a personal PIN in order to sign a document. 

The additional conditions called as reliability conditions need to be followed in both these methods in order for such e-signatures to be valid under the Indian law, 

(a) The element of uniqueness must bind the signature with the signatory. In simple terms, this means that the electronic signature must uniquely link the person who is signing the document and not with any other person. Such a condition is met with digital signatures by a certificate based digital id. 

(b) Secondly, there should be an element of control by the signatory over the data that is used to generate the signature at the time of signing the document. This occurs by directly affixing the e-signature to the document. 

(c) If there is any alteration to the affixed e-signature, or in the document to which the signature is affixed, then it must be detectable. This happens via encrypting the document via a tamper evident seal. 

(d) An audit trail of steps that are taken during the signing process should be present. 

(e) The signer certificates are needed to be issued by a Certifying Authority (“CA”) that is recognized by the Controller of Certifying Authorities that is appointed by the IT Act, 2000. It is to be noted that, an e-signature or a digital signature certificate can be issued by a CA that is licensed by a Controller of Certifying Authority. For a document signed using an electronic signature to be valid, then all the above reliability conditions need to be satisfied.   

Conclusion 

The Aadhaar e-Sign is the most common electronic signing technique. Its validity stems from a notification titled “Electronic Signature or Electronic Authentication Technique and Procedural Rules, 2015”. A valid electronic signature’s definition encompassed Aadhaar eSign, since the same got inserted into Schedule II of the IT Act, 2000. The power of the central government to do this stemmed from Section 3A of the IT Act, 2000. 

The eSign Service Provider (“ESP”) is an important stakeholder because it is a central facility that facilitates the Aadhaar eSign transaction between the signatory, UIDAI and the Certifying Authority. On the other hand, an application service provider (“ASP”) is an entity that allows signatories to Aadhaar eSign documents. There must be an agreement between an ASP and an ESP for this process. It is to be noted that, ESP is the entity that provides the backend functionality and the ASP is the entity that provides the front end functionality. The following diagram shows the way in which Aadhaar eSign works behind the scenes. 

Workflow.png

The relevance of an electronically signed document can be traced to the provisions of the Evidence Act, 1872 with Aadhaar Act, 2000, namely Section 47A, 67A, 85A, 85B, and 85C. Thus, private entities can enter this space and enable Aadhaar eSign services.

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.

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Works protected under Indian Copyright Law

By
Sneha Mahawar
-
0

This article is authored by Akash Krishnan, a law student from ICFAI Law School Hyderabad. It discusses the scope of copyright, different kinds of works protected under copyright, author and ownership of copyright and some notable examples in this domain.

This article has been published by Sneha Mahawar. 

Introduction

Copyright means the exclusive right to do or authorize others to do certain acts like reproducing, making and issuing of copies, performing in public, communicating to public, adaptation and translation in relation to literary, dramatic, musical, artistic, cinematograph films and sound recordings works. Copyright is the right which the owner of the work has and without his permission copying or reproducing the work in which copyright subsists cannot be done. Copyright law prevents others from taking unfair advantage of a person’s creative efforts involving his judgment, skill, labour, time, and capital in making the original work. The objective of copyright law is to give protection to the creators of original works by rewarding them with the exclusive right for a certain period.

Copyright protects literary, dramatic, musical, artistic, cinematograph films and sound recordings. Literary works include novels, stories, poems, dramas or any other writings, whatever may be the purpose or form. Dramatic works include recitation, entertainment in dumb shows, scenic arrangement, dance, mime, operas, ballet, screenplays, choreography, script etc, but not a cinematograph film or movie as a whole. Musical works include music and include any graphical notation, choruses etc. Artistic works include drawings, paintings, lithographs, diagrams, maps, charts or plans, photographs, sculptures, architectural works, works of artistic craftsmanship etc. Cinematographic works or motion pictures consist of works of visual recording without sound or with a soundtrack including video films. Sound recording is the recording of sounds, from which such sounds may be produced in any medium.

Examples of copyrighted works

  1. Literary works – Books, novels, stories, computer program codes etc.
  2. Musical works – Music, choruses etc.
  3. Artistic works – Paintings, photographs,cartoons (Mickey Mouse, Tom and Jerry), drawings etc.
  4. Dramatic works – Dance steps, screenplays, operas etc.
  5. Cinematograph films – Movies, video films etc.
  6. Sound recordings – Any recording of sounds, recording of songs by sound recorders etc.

Characteristic features of Copyright 

The main essential characteristic features of copyright are:

  1. Originality
  2. Expression in some form
  3. Bundle of rights

Originality

To have copyright, work must be original. This means literary, dramatic, musical, artistic, cinematographic film and sound recordings must be created by the author’s intellect by employing his skill, judgment, labour, time or capital and they must not be copied.

Expression in some form

Copyright protection is given only when the created work is expressed or fixed in manual or electronic or in some tangible form. A mere idea is not capable of protection under copyright.

Bundle of rights

The term copyright includes a number of rights. The creator or author of the works will have a bundle of rights in his creation. For example, Ms. J. K. Rowling who is the author of the famous novel Harry Potter has multiple rights like the right of reproduction, right to issue copies, right to perform or communicate the work in public, right to make a film, right to translate, etc.

Works protected under International Conventions

Berne Convention,1886

The Berne Convention protects literary and artistic works. The relevant provisions of the convention have been enumerated below:

Article 2: Works Protected under the Convention

  1. Literary and artistic works
  2. Countries may mandate that the work will be protected only if it is fixed in material form.
  3. Derivative works: Translations, adaptations, arrangement of music and alterations of literary and artistic works.
  4. Countries may make laws to protect official texts: legislative, administrative or legal texts.
  5. Collection of literary or artistic work: encyclopaedia, dictionaries
  6. Work to be protected in all countries. Beneficiaries of protection are the authors and their successors or people to whom the title is transferred.
  7. Countries may determine the extent of protection of applied arts and industrial designs. If work is protected as design and model in one country, the same shall be protected in other countries in accordance with the protection that country offers for designs and models. If there is no provision for the same in the other country, work is protected as an artistic work.
  8. No protections to daily news and mere facts stated by the press.

Article 2(bis): Limitation for protection of certain works

  1. Countries may exclude protection to political speeches or speeches delivered in the course of legal proceedings.
  2. Countries may make laws for the reproduction of lectures/addresses given in public by press/broadcast etc.
  3. The author has the right to maintain a collection of his lectures/speeches etc.

Article 4: Cinematographic and artistic works

  1. Protection of Cinematographic Works: if the maker of work has his headquarters or habitual residence in the member country.
  2. Protection of Works of Architecture and Certain Artistic Works: if the building or artistic work incorporated in the building is in a member country.

Article 7: Term of Protection

  1. Life of Author + 50 years after the death
  2. Cinematographic works: 50 years from the date of publication/date of making
  3. Anonymous/Pseudonymous works: 50 years from the date of publication. If identity is revealed, then the general rule will apply. No protection if a reasonable conclusion can be drawn that the author is dead for more than 50 years.
  4. Photographic and applied art: 25 years from the date of making

Agreement on Trade-Related Aspects of Intellectual Property Rights, 1995

The TRIPS Agreement was enacted for creating an international instrument solely dedicated to the protection of Copyright. The relevant provisions of the convention are enumerated below:

Article 9: Relation to Berne Convention

Copyright protection is available on the expression of ideas and not the idea itself.

Article 10: Computer Programs and Compilations of Data

  1.  Source/Object Code: to be protected as literary work under Berne Convention.
  2. Compilations of data or other material that possess intellectual character due to the manner of selection or arrangement are protected.

Article 12: Term of Protection

The term of protection shall be 50 years, starting from one year after the date of publication or making of the work.

WIPO Copyright Treaty, 1996

The WCT followed the principles prescribed under TRIPS and was enacted to ensure copyright protection in the digital regime. The relevant provisions of the Convention have been enumerated below.

Article 4: Computer programs

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention.

Article 5: Compilations of data (databases)

Compilations of data or other material that possess intellectual character due to the manner of selection or arrangement are protected.

Article 9: Term of protection

The term of protection shall be at least 50 years from the date of publication for any kind of work.

Works protected under Indian Copyright Act, 1957

The Indian Copyright Act 1957 has incorporated several works within its ambit that have been given protection under the aforesaid conventions. The relevant provisions of the Act have been enumerated below:

SectionProtected Work
Section 2(o)Literary work: It includes computer programs, tables and compilations including computer databases. This definition is not exhaustive.
Section 2(n)Lecture: It includes speeches, sermons, public addresses, etc.
Section 2(ffc)Computer program: It includes the source and object code of the program
Section 2(h)Dramatic work: It includes public/private recitations, works of choreography, acting, etc.
Section 2(p)Musical work: It includes works of music, graphical notations of music, etc. It does not include words or any movements associated with the music.
Section 2(c)Artistic works: It includes paintings, sculptures, engravings, architecture works, works of artistic craftsmanship, etc.
Section 2(s)Photographic works: It includes all forms of photographs except those included as a part of a cinematographic film.
Section 2(a)Adaptation: It includes conversion of any form of work into another i.e., conversion of literary work into a dramatic work etc.

Notable examples

Ideas, plots or themes

It is pertinent to note that under copyright law only the expression of an idea is protected and not the idea itself. Similarly, if a plot/theme is similar across multiple platforms, it is not protected. However, the manner in which these plots or themes are expressed will be protected. In Barbara Taylor Bradford vs. Sahara Media Entertainment Ltd (2003), Plaintiff sought a copyright infringement suit against Defendant for copying her novel about a woman who rose from poverty to richness into a TV serial and broadcasting the same without her consent. It was held that copyright is only available for the expression of ideas and not the idea itself. No person can have a monopoly over an idea. If the manner of expression of the ideas i.e., the details, events, situations etc was depicted in the same manner in the TV serial as in the book, a case for copyright infringement could be made.

Concept Note

Concept notes can be defined as the underlying concept of a show. For example, in the reality TV show Big Boss, the concept is that several contestants have to live together in an enclosed space for a period of 4 months and perform a variety of tasks for winning the show. Now the question is whether this concept can be protected or not?

In Anil Gupta vs. Kunal Dasgupta (2002), Plaintiff came up with the concept of a reality TV matchmaking show where celebrities could find their ideal matches for marriage. He discussed the show with Defendant for launching it and sent him the concept note along with all other details. Defendant launched his own reality TV matchmaking show based on the concept note supplied by Plaintiff. It was held that an idea has no copyright and only the expression of an idea is copyrightable. Thus, there is no copyright available over the concept of a show. In case a concept is developed along with other attributes like cast, scenes, tasks, dialogues etc., then the same can be subject to copyright protection.

In Zee Telefilms Ltd. And Others. vs. Sundial Communications Pvt. Ltd (2003), the TV serial developed by the Plaintiff about the early life of Lord Krishna (Krishna Kanhaiya) was copied in the TV serial developed by Defendant (Kanhaiya). It was held that since Defendant had copied the way in which the idea was expressed by Plaintiff in their show and the scenes, background, storyline etc. were substantially similar to that of the Plaintiff, there is a copyright violation.

Computer database

A computer database is included within the definition of literary work under the Copyright Act. In Burlington Home Shopping Pvt. Ltd. vs. Rajnish Chibber & Another (1995), it was held that compilation of a list of clients/customers developed by a person by devoting time, money, labour and skill amounts to a literary work wherein the author has a copyright. Also, in Express Newspaper Plc. vs. Liverpool Daily Post & Echo Plc (1985)., it was held that output from a computer that has been randomly generated by the machine itself can be protected under copyright law.

Graphic characters

Graphic characters can be defined as any character represented graphically by way of drawings, sketches, paintings, etc. For example, drawings of Spiderman, Superman, etc. In Reckitt and Colman Ltd vs. Borden Inc (1990), two characters that were made and used by Plaintiff in his works were copied by Defendant. It was held that copyright exists in graphic characters and the act of Defendant amounts to copyright infringement. In Walt Disney vs. Air Pirates (1978), a two-step test was devised to determine copyright infringement in graphical characters, i.e., visual similarity and similarity in character attributes like name, appearance, outfit etc.

Abridgement

Abridgement can be defined as reducing a large work into a small piece of work by preserving the sense and meaning of the entire work. 

In Macmillan and Company Ltd. vs. K. & J. Cooper (1923), the Appellants published an abridged edition of a book taking paras from the book and included an introduction, transitional notes, marginal notes, etc. The Respondents also published an abridgement of the book taking paras from the book and included all notes added by the Appellant in their version. It was held that there is no copyright over the verbatim used by the Appellants in their abridged version as they just copied the same from the original book and did not spend sufficient knowledge, labour, judgment, or literary skill upon it. However, copyright is available for all marginal notes, transitional notes, etc that were added by the Appellants as it demonstrates the use of labour and skill for creating the work and it is their original creation.

In Sweet vs. Benning (1855), the Plaintiffs were the proprietors of a weekly paper called “The Jurist” that published the decisions of various courts of law along with appropriate marginal notes and headnotes. It was held that there is no copyright available over the parts of the judgment that were reproduced but copyright is available over headnotes, marginal notes, etc.

Author and owner of the copyright

Section 17 of the Copyright Act deals with authorship and ownership over copyright. Section 2(d) of the Copyright Act defines who is the author with regard to different works. Section 17 of the Act states that the author of the work is the first owner of the copyright in that work. The ownership of the work is subject to certain exceptions. The exceptions are as follows:

If the literary, dramatic or artistic work is made by the author in the course of his employment under a contract of service or apprenticeship

In this case, the first copyright owner of the work is the proprietor of that newspaper, magazine or a periodical under which the original author is working, if there is no other contract to the contrary in relation to the publication of the work in any newspaper, magazine or periodical or to the reproduction of the work for the purpose of being so published. In Indian Performing Rights Society vs. Eastern India Motion Pictures Association & Others (1977), it was held that if the author is employed under a contract of service for reward, the employer will become the owner of the work.

Photograph, painting etc. made for valuable consideration

In case of a photograph, a painting, a portrait, an engraving or a cinematograph film that is made for valuable consideration at the instance of any person, such person, at whose instance these works are made in the absence of any agreement to the contrary, shall be the first owner of the copyright of those works.

Work made in the course of employment

Where a work is made in the course of the author’s employment under the contract of service or apprenticeship, the employer not being the proprietor of a newspaper, magazine, or periodical, in absence of a contract to the contrary, the employer will be the first owner of the copyright in the work that is created. In Indian Performing Rights Society vs. Eastern Indian Motion Pictures Ltd (1977) the Hon’ble Supreme Court while interpreting Section 17(c) of the Act stated that the proprietor becomes the absolute owner in cases of a contract of service for valuable consideration unless there is an agreement contrary to it. In Salim Khan & Others vs. Sumeet Prakash Hers Mehra & Others (2013), it was held that if the producer of the film hires a lyricist for a valuable consideration to compose lyrics to include in his film, the producer becomes the first owner of the copyright of the lyrics if there is no separate contract.

Lectures delivered in public on behalf of any other person

Where any person has delivered any address or speech in public, that person will be the first owner of the copyright. If the address or speech is delivered on behalf of any other person, such other person on behalf of whom it is made will be the owner of the copyright of the address or speech.

Government work

In the case of the Government work, the Government is the owner of the copyright in the absence of an agreement to the contrary between the creator and the Government. In B.N. Firos vs. The State of Kerala (2018), the Hon’ble Supreme Court of India while interpreting Section 70 of the Information Technology Act, 2000 and Section 2(k) and Section 17 of the Copyright Act 1957 held that only government works under the Copyright Act qualify as protected systems under Information Technology Act, 2000.

Work made on behalf of a public undertaking

In case the work is made or first published by or under the direction or control of any public undertaking, such public undertaking shall in the absence of any agreement to the contrary, be the first owner of the copyright of that work.

Work of certain International Organizations

When work is considered to be a work of a certain international organization under Section 41, then that international organization shall be the first owner of the copyright of such work.

Conclusion

Copyright laws have evolved over time and have incorporated new elements under its wing of protection. The evolution that started with the enactment of the Statute of Anne wherein only literary works were protected has grown into a multi-dimensional protective regime where even modern-day computer-generated works are being protected. The three important principles governing the protection of copyright works across the globe were laid down under the Berne Convention. The principles are:

  1. National treatment: The work of any copyright owner published in any member state will have the same protection in other member states.
  2. Automatic protection: Automatic and unconditional protection in member countries.
  3. Independence of protection: Protection of work in member countries is independent of the existence of protection of workers in the country where the work was first published.

With these three principles in place, copyright protection is assured across all the member countries. Only time will tell whether or not these principles will remain efficient and whether or not new elements would be brought under the ambit of copyright protection.

References

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.

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Criminal procedure in case of person of unsound mind

By
Sneha Mahawar
-
0
Section 89 of IPC
Image source - https://bit.ly/3fidXoO

This article is written by Nipun Raj, a student of Amity Law School, Ranchi. The article explains the criminal proceedings related to person of unsound mind under The Code of Criminal Procedure, 1973.

This article has been published by Sneha Mahawar. 

Introduction

The Code of Criminal Procedure, 1973 intends to give a mechanism for smoother delivery of justice. Since CrPC deals with the arrest and trial of the person, it is very necessary that fairness should be there to establish the lawful detainment of a person from his liberty.

When a person is unable to understand things, he is said to be of unsound mind. Idiocy, madness, alcoholism, and mental degeneration are all examples of unsoundness. According to Section 84 of the Indian Penal Code, 1860, “Nothing constitutes an offence done by a person who, at the time of committing it, by reason of unsoundness of mind, is incapable of comprehending the nature of the conduct, or that he is doing what is either improper or contrary to law”.

In other words, an act committed by a person of unsound mind is not considered an offence and falls under the category of ‘General Exceptions’. Here, the caring attitude towards people who are mentally ill is maintained.

CrPC Chapter XXV Sections 328 to 339 makes provisions for accused persons of unsound mind. These provisions are in the best interests of the mentally ill.

Criminal proceedings related to unsound mind

The following are the criminal procedures related to a lunatic or an individual of unsound mind under CrPC – 

Section 328– procedure in case of the accused being a lunatic

According to Section 328 of the Act, if the magistrate believes that the person being investigated is unable to defend himself or is mentally ill, the magistrate must guarantee that the subject is evaluated by a medical professional during the investigation.

If the defendant is unable to defend himself, the magistrate will hear the prosecution and examine the records.

The magistrate shall postpone the proceeding for a limited term until the person’s unsoundness is remedied, based on medical proof.

In the case of Mohan Lal @ Ranjan Mohan Bhatnagar vs The State (Nct Of Delhi) (2011), it was contended that the evidence on record shows that the appellant was examined by various doctors prior to the start of the trial by the learned Metropolitan Magistrate in proceedings under Section 328 CrPC and was found to be a man of unsound mind, and the learned M.M. also passed an order in this regard and the trial began only after he was declared mentally fit.

Section 329– procedure where a person of unsound mind is tried before the court

According to Section 329 of the Act, if the magistrate believes the person being tried is of sound mind and incapable of self-defence, the magistrate ensures this by having the subject evaluated by a medical professional. If the defendant is unable to defend himself, the magistrate will hear the prosecution and examine the records. The magistrate shall record such a determination and postpone the hearing based on medical evidence.

The fact of insanity throughout the trial will be considered part of the proceedings.

In the case of Kulwinder Singh v. State of Haryana (2011), it was stated that since Section 329 of CrPC relates to the trial of a person of unsound mind and that the application has been filed during the trial Section 329 of the Cr.P.C. would be applicable.

Section 330- release of a person of unsound mind pending investigation or trial

According to Section 330 of the Act, If the person is found unsound or incapable of making his defence during the inquiry and trial (Sections 328 and 329), regardless of whether the offence is bailable or not, the Court may release him. In other words, if the offence is non bailable, the magistrate must grant bail as well. If, on the other hand, bail cannot be granted, the accused must be kept in a location where he can receive treatment.

In the case of Kanhaiya v. State of U.P. (2018), the learned Additional Sessions Judge noted that a doctor at the mental hospital in Varanasi had opined that he was an accused of unsound mind, and ordered that the accused be sent under a detention warrant to the mental hospital in Varanasi, where the accused-applicant was being treated, as noted in his decision. He opined that there was no good reason to release the applicant on bail, and he denied the applicant’s bail application under Section 330 of the CrPC.

Section 331- resumption of inquiry or trial

According to Section 331 of the Act, when the inquiry and trial are postponed or suspended, the magistrate shall summon the person after he or she regains mental soundness or ceases to be insane and resume the inquiry and trial.

In the case of Subhash Bhardwaj v. State (2016), the Court concluded that the trial will be scheduled after the trial court receives the IHBAS report and completes its investigation pursuant to Section 331 CrPC.

Section 332- procedure of accused appearing before the magistrate or the court

According to Section 332 of the Act, If the accused appears before the magistrate and the court believes he is capable of presenting his defence, the investigation and trial will continue.

If the person is still unable to recover from his condition, the provisions of Section 330 will apply once more.

In the case of Geeg Singh v. State of Rajasthan (2008), the Court said that the trial will continue as the accused is capable of presenting his defence.

Section 333- when accused appears to have been of sound mind

According to Section 333 of the Act, when the magistrate has reason to believe the individual is of sound mind and there is also evidence that acts were committed by the accused, when the act was committed by the accused, and when the act was committed while the accused was of sound mind. The magistrate will then proceed with the case.

In the case of Dimple @ Dimpu @ Gurcharan v. State of Punjab (2008), the court stated that the petitioner is opined to be suffering from that form of insanity at the time of the commission of the offence which may render him incapable of knowing the nature and quality of his act when he committed the same, so Section 333 comes into play.

Section 334- judgement of acquittal of the accused on the ground of unsoundness of mind

According to Section 334 of the Act, if a person is acquitted on the grounds of insanity and is unable to identify the nature of the act, the findings must state whether the act was committed by the accused or not. 

In the case of Abdul Latif v. The State of Assam (1981), the Court came to the conclusion that the accused was incompetent to know the nature of the act or that he was doing something that was either illegal or against the law at the critical moment. As a result, they overturned the convictions and punishments, accepted the plea of insanity, granted the appeal, and found the appellant not guilty.

Section 335- person acquitted on such ground to be detained in safe custody

According to Section 335 (1)  of the Act, if a person is acquitted by a magistrate on the grounds of insanity, he or she should be detained in safe custody or should be delivered to a family member or friend.

When it comes to delivering an accused person to a relative or friend, the court can only do so if the relative or friend makes an application to the magistrate and the friend or relative assures the court of security.

Responsibilities of a relative or friend

  • He must take proper care of that individual.
  • When necessary, the relative or friend should present that person for inspection as directed by the state government.

In the case of Niman Sha v. State of M.P. (1995), the Court decided, based on the heinous crime the accused had committed and his mental state, as well as the risks to society, that the accused be imprisoned at the mentioned Institute of Mental Health in Gwalior until he regains normalcy after receiving medical treatment.

Section 336- the power of state government to empower officer in charge to discharge

According to Section 336 of the Act, the State Government may delegate all or all of the functions of the Inspector-General of Prisons under Section 337 or Section 338 to the official in charge of the jail in which a person is imprisoned under the provisions of section 330 or section 335.

In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court ordered that a copy of the judgment shall also be sent to the Inspector General of Prisons who is empowered in terms of Section 336 to perform and discharge the functions under Sections 337 and 338 of Criminal Procedure Code for further necessary action in the matter.

Section 337- procedure where the lunatic prisoner is reported capable of making his defence

According to Section 337 of the Act, the magistrate must proceed with Section 332 if it is determined that the lunatic is now capable of defending himself. 

In the case of Emperor v. Motilal Hiralal (1921), the Court continued the trial as the accused is capable of defending himself.

Section 338- procedure where a lunatic detained is declared fit to be released

According to Section 338 of the Act, if a person is detained under Section 330 on the grounds of insanity and the authorised person or inspector general certifies that the person is fit to be released, detained by the authorities, transferred to a public mental institution then there should be no damage in doing so and the government may then release the individual.

If a person is committed to a public mental institution, a commission must be formed to conduct an official investigation into their mental health and issue a report, which must be sent to the state government.

In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court has directed that the petitioner be kept in safe custody for the present in Amravati Jail till the State Government takes action in the matter. The State Government may decide where the appellant is to be kept pending action under Sections 338 or 339 of Criminal Procedure Code as the case may require.

Section 339- delivery of lunatic to the care of relative or friend

According to Section 339 of the Act, if a person’s relative or friend wishes for the person to be released to him, the relative or friend must apply to the State Government for such a release.

The State Government will only accept such an application or grant the request if the person delivers :-

  • Properly cared for without causing harm to himself or others 
  • Produced for inspection when necessary
  • Produced before a magistrate when necessary

When the accused is able to defend himself, the accused’s relative or friend is summoned, and a certificate of inspection is kept as evidence.

In the case of Geeg Singh v. State of Rajasthan (2008), the Court has said that as per Sections 338(1) and 339(1), CrPC, the State Government may make suitable directions to deliver the appellant to any of his relatives or friends when he is fit.

Notable case laws related to person of unsound mind

State of Maharashtra  v. Sindhi (1975)

In this case, the Court held that the accused could not be declared to be incapable of defending himself because he was fully aware of the nature of the crime he had committed and the proceedings against him. The specialist has been called to ensure mental insanity. The High Court carefully considered their testimony before recording its own conclusions on the key issues.

I.V. Shivaswamy v. State of Mysore (1971)

In this case, the Court ruled that the investigation will be conducted only if the magistrate is satisfied that the accused is insane or of unsound mind. However, if there is no possibility of unsoundness, such an investigation will not take place. In the event of a doubt, an investigation is required.

Conclusion

It can be concluded that such provisions are in the best interests of those who are mentally ill and incapable of self-defence. During the period of his insanity, the magistrate has the authority to postpone the trial or procedures.

After he has recovered his health or is capable of defending himself, the court will proceed as if he is of sound mind. Such a person must be maintained in a secure environment or in safe custody. A relative or acquaintance of that person may file a petition to the magistrate for release if that person is mentally ill. We can see the court’s concern for the mentally ill in this case. Such provisions are required to achieve proper justice.

References

  1. https://lawcorner.in/provisions-of-cr-p-c-relating-to-the-persons-of-unsound-mind/#Provisions_as_to_accused_person_of_unsound_mind 

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

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

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Rights of a child in India : a comprehensive guide

By
Diganth Raj Sehgal
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Image source: https://bit.ly/3hpCJVC

This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. It discusses the basic rights of children and the infringement of such rights. It also throws light upon the trial of cases relating to such offences. In addition, it will also talk about how such rights can be protected by individuals and society at large. 

This article has been published by Diganth Raj Sehgal.

Disclaimer : The child helpline number in India is 1098. It is a toll-free emergency phone service and any child or concerned adult can contact them for assistance. This Childline operates day and night; 24*7 and 365 days a year.

Introduction

“A bud of rose was crushed before it bloomed, a kite was torn when about to fly, the budding flower was crushed to ashes and the kite took the soul away.”

This is yet another sad saga of a three-year-old minor girl who was playing with her little dog when she was noticed by a delinquent, evil man who was lust-driven upon the sight of a little happy harmless child playing in her own little world.

‘5-year-old minor girl sexually assaulted by a 50-year-old’.

‘Child marriage of a minor girl prevented by city police’.

‘Mumbai Police rescues 9-year-old girl made to work as domestic help’.

‘19 minors rescued from Ranchi airport, a man held for involvement in child trafficking’.

‘3 minors forced into prostitution rescued by the Delhi Commission for Women (DCW)’.

These are not isolated instances. Every day, in our news and newspapers, we have been witnessing several headlines like these. Every now and then we come across such shocking incidents of innocent children being subjected to violence or being assaulted, tortured, forced into labour or prostitution or even married-off at a young age. 

Since old times, children have been one of the major victims of criminal offences and have faced violation of their rights. They have always been the perpetrator’s ‘soft target’ for they do not understand the gravity of the act committed on them. Simply put, children are the most preferred victims of offenders due to their innocence and lack of maturity- adjectives that are usually directly related to the age of a child. 

But, in recent times, committees like the Child Welfare Committee (CWC) and several laws like the Juvenile Justice Act, 2015, the Prohibition of Child Marriage Act, 2006, the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, the Protection of Children from Sexual Offences Act, 2012, etc. have been implemented for child safety. These laws have aided in curbing the violence against children to a certain extent. In addition, a surplus of people are getting enlightened about such laws through social media, news, and campaigns specially designed to raise public awareness. This has helped them express their oppression of such atrocities, thereby contributing to the betterment of society along with the well-being of children. 

Now that we know about the crimes against children, let us learn about the basic rights of children, the harsh treatments they undergo and the trials of offenders against such crimes. 

What are the rights of a child in India

It is quite heart wrenching to see children being deserted, wandering to fend for themselves on the streets, facing assaults, not having the privilege of even the most elementary education. They suffer many forms of violence. Moreover, they do not even have access to basic medical facilities. They are subjected to cruel and inhumane treatments every day. They are children- innocent young and beautiful- who are deprived of their rights. 

In the history of human rights, the rights of children are the most frequently ratified. Child rights go beyond mere human rights that guarantee just and decent treatment of people all around the world and promote their well-being. A child, defined as any person under the age of 18, needs more than just human rights because of the set of unique needs that arise from their vulnerabilities.  

According to the United Nations Convention on the Rights of the Child (UNCRC), child rights are defined as the ‘minimum entitlements and freedoms that should be afforded to every citizen below the age of 18 regardless of race, national origin, colour, gender, language, religion, opinions, origin, wealth, birth status, disability, or other characteristics.’ These rights include freedom of children and their civil rights, family environment, essential healthcare and welfare facilities, education, leisure and cultural activities, and special measures to protect them. 

There are several standards and rights guaranteed by the laws that govern our country and the international legal instruments which we have accepted by ratifying them. Various rights have been conferred in the Constitution of India specially for children. In addition, just like any Indian adult male or female, children too, as equal citizens of India, have several other common rights. These rights are applicable to everyone irrespective of any restrictions. The basic rights of children in India include: 

Right to equality

Article 14 of the Constitution of India states that every person is equal before the law and has equal protection of the laws. Thus, this right is applicable to children of India, as well, because, they too, are the citizens of this nation. 

Right against discrimination

Article 15 of the Constitution talks about the prohibition of discrimination based on race, caste, etc. Under Article 15(1), no citizen shall be discriminated against based on his religion, race, caste, sex, place of birth or any of them. Further, Article 15(3) states that the State shall not be prevented from making any special provisions for women and children. 

Right to freedom of expression

Article 19(1)(a) has conferred a right to freedom of speech and expression to each and every citizen of India. This right is applicable to everyone, including the children of India. Children have the liberty of expression as long as their opinions and knowledge do not harm others.

Right to life

According to Article 21 of the Constitution of India, every person has the right to life, liberty and security. It also states that no individual must be deprived of his life or personal liberty unless according to procedure established by law. Similarly, every child in India has the right to personal liberty and due process of law. 

Right to health

Under Article 21 of the Constitution of India, although indirectly, every child has the right to lead a healthy life. Issues like HIV infections, lack of safe drinking water, adequate sanitation, malnutrition, inter alia, come under the protection of life. 

Right to education

Under Article 21A of the Constitution of India, every child in the age group of 6-14 has the right to free and compulsory elementary education. Moreover, Article 45 states that the State shall strive to provide early childhood care and education for all children under the age of six years. 

Note of information : This provision was introduced by the Eighty-sixth Amendment, 2002. Prior thereto, this provision asserted that free and mandatory education must be provided for children under 14 years of age. But, after the Amendment, the right to education for all children between the ages of 6 and 14 has been made a fundamental right. Moreover, the position today is that early childhood care and education for children below the age of 6 years is a Directive Principle, whereas free and compulsory education for all children between the age of six and fourteen years is a Fundamental Right. 

Right to being protected from trafficking and forced into labour

Article 23 of the Constitution of India states that every person (including children) has the right to be protected from trafficking, begging and other similar forms of bonded labour.

Right to be protected from hazardous employment

Under Article 24 of the Constitution of India, every child below the age of 14 has the right to be protected from employment in factories or mines or be engaged in any other precarious employment conditions. 

Right to be protected against abuse

Article 39(e) of the Constitution of India states that the health and strength of workers and the young age of children are not violated, and that, there is a right to be protected from being abused and not forced by economic necessity to enter avocations or minor occupations that do not suit their age or energy.

Right to equal opportunities and facilities

Article 39(f) of the Constitution of India states that children must be provided with just opportunities and facilities to progress in a healthy way and conditions of liberty and dignity. Also, children and youngsters are given protection against ill-treatment and moral and material abandonment. 

Rights against social injustice and all forms of exploitation

Article 46 of the Constitution discusses the rights of the weaker sections of the society and that they should be safeguarded from social injustice and all forms of exploitation. 

Right to Identity 

Another important factor for child rights is their right to identity and registration. Only 41% of births in India are registered. Having an identity is a fundamental human right that gives an individual the liberty to enjoy all of their other rights. Identity consists of a family name, surname, date of birth, gender and nationality of the individual. By identification of such identities, an individual will hold rights and obligations specific to their status (woman, man, child, etc). 

Types of offences against children

Human beings are capable of doing marvellous things. We have rewritten the meaning of what is possible a hundred thousand times, and yet, we continue to leave lakhs of children behind. We have been accepting this loss of human potential as ‘normal’. From lack of education to protection from exploitation to child labour, the basic rights of millions of children are held back or violated. 

Since we now know the basic rights of a child, let us learn about the types of transgressions against children that are violations of child rights. Here are some of the many offences against children that violate children’s rights:

Child marriage

Child marriage denies children their basic rights. Many a time, children who are subjected to this offence have to drop out of school, thus, denying their basic right to education bestowed under Article 21 and Article 45 of the Constitution.  

Moreover, they are also exposed to violence (sexual, physical and emotional), thus denying their right to personal liberty which is also vested under Article 21 of the Constitution of India. Child marriage leads to experiences that their young minds and bodies are not prepared for, say for example- motherhood.  

Quick fact: There are around 24 million child brides in India. According to the National Family Health Survey, around 40% out of the world’s 60 million child marriages are in India.  According to the International Center for Research on Women, India has the 14th highest child marriage rate in the world.

Child labour

Children below the age of fourteen often work the whole day in stitching shoes and footballs, rolling cigarettes and incense sticks, doing embroidery on clothes, handicrafts, packing and sticking labels to various items. Child labour is often a result of the unemployment of the adults in the family or low parental wages, thus, forcing the child to provide or contribute to household expenses.  

The major factors which contribute to child labour are:

  1. Lack of food,
  2. High poverty,
  3. Social conditions,
  4. Economic circumstances, inter alia. 

The other factors include:

  1. Lack of awareness about the detrimental effects of child labour,
  2. Lack of access to basic and meaningful quality education and skills training. 

At times, children are exposed to harmful chemicals in factories (fireworks, machinery, etc) or engage in dangerous and exploitative child labour which is reckoned to be detrimental for their health and growth. Child labour violates Article 21 (right to life), Article 23 (right to protection from forced labour), Article 24 (right to protection from hazardous employment) of the Constitution of India. 

Employment of child for begging

To date, Indian children continue to face some of the harshest conditions and treatments, one of them is done through instigating or forcing them into begging. Employment or use of a child for begging is an offence under Section 76 of the Juvenile Justice Act and is also a violation of Article 21 (right to personal liberty) of the Constitution. 

The exploitation of a child employee

A child can be ostensibly engaged or kept in bondage for the purpose of employment or be declined to give his share of earnings or might have his earrings used for the employer’s gain. Such an act is prohibited under Article 39(e) and Article 46 of the Constitution and is punishable under Section 79 of the Juvenile Justice Act. 

Cruelty 

Any person who is in charge or has control over a child- assaults, abandons, abuses, exposes or willfully neglects the child or creates circumstances where the child undergoes any of the aforementioned treatments will be termed to have subjected the child to cruelty. This act is punishable under Section 75 of the Juvenile Justice Act and is a violation of Article 21 (right to life and liberty) of the Constitution.  

Intoxicating a child

Giving a child intoxicating liquor or narcotic drug or tobacco or any psychotropic substance, not only orally, but also for inhaling or smoking or by using an injection, etc is an offence. Performing such an act will attract a penalty under Section 77 of the Juvenile Justice Act and is also a violation of Article 19(1)(a) which discusses freedom of speech and expression and Article 21 which discusses the right to life and personal liberty in the Constitution.

Using a child for supplying or smuggling intoxicating substances

Any person who uses a child for vending, peddling,  transporting, delivering or smuggling any intoxicating liquor,   narcotic drug or psychotropic substance is said to have committed an offence under Section 78 of the Juvenile Justice Act. Even in this case, Article 21 is violated. 

Selling or procuring a child

Under Section 81 of the Juvenile Justice Act,  any person who sells or buys a child for any purpose has committed an offence. 

Kidnapping and Abduction of a child 

Children after being kidnapped are sold through human trafficking rackets and used for several purposes, some of them are:

  1. prostitution,
  2. begging,
  3. house helpers, etc. 

This act is punishable under Section 84 of the Juvenile Justice Act. A note must be taken that this Section must be read and understood in the light of the Indian Penal Code provisions from 359-369. 

Child soldiers 

Any non-State, self-styled militant group or outfit declared by the Central Government, if recruits or uses any child for any purpose is liable to punishment under Section 83 of the Juvenile Justice Act. The object of this section is to protect the child from being used by the militant group or by any individual or organisation for any unlawful activities.

Female Genital Mutilation (FGM)

Female Genital Mutilation (FGM) is defined as the technique pertaining to partial or total removal of the female external genitalia or causing other injuries to the female genital organ for non-medical reasons. 

The practise of FGM is typically upheld by deeply ingrained social norms. This is a violation of a child’s right to health (Article 21) and is also an infringement of a child’s right to be free from violence, cruel, inhuman and degrading treatment. 

Current status of child rights

According to Humanium, there are 472 million children who are under 18 years of age. This represents around 39% of the country’s total population. Amongst this, 29% consist of children between the age of 0 to 6 years. Further, 73% of children in India are residing in rural areas and have limited access to basic necessities such as nutrition, access to healthcare, education, and protection. 

India’s Commission for the protection of children’s rights (Act 2005) which was amended in 2006 has positively affected the promotion of child’s rights in India. The Commission’s mission is to ensure that ‘all laws, policies, programmes, and administrative mechanisms are in line with the Child Rights perspectives as enshrined in the Constitution of India and the UN Convention on the Rights of the Child’, adopted in 1989.

Children in India continue to face hardships in achieving their basic rights, especially, those related to education, forced labour and child marriage. Considering that children in India make up 39% of India’s 1.21 billion population, it is crucial that the rights of these children be met. 

Dire need to safeguard child rights

With the implementation of the Commission, it is evident that promoting children’s rights is a priority of the government, a right that is also enshrined in the Constitution and protected in legislation. Despite all the laws, children across various states in India are subjected to cruel and harsh treatment by offenders, thus, having their basic rights violated. 

Below are some of the crimes and punishments for offenders of child rights. 

Punishments under Juvenile Justice Act

Chapter IX of the Juvenile Justice Act, 2015 re-enacts the provisions relating to special offences with regards to juveniles. To be specific, Section 74 to 89 of the Act deals with the punishment for offences committed against children. They have the following heads:

  1. Provision on disclosure of Identity of children (Section 74).
  2. Punishment for cruelty to children (Section 75).
  3. Employment of a child for asking alms (Section 76).
  4. Penalty for giving intoxicating substances to a child (Section 77).
  5. Utilising the child for carrying and smuggling intoxicating substances  (Section 78).
  6. The exploitation of a child employee (Section 79).
  7. Punitive measures for adopting a child by not following a proper procedure (Section 80).
  8. Sale and procurement of a child for any purpose (Section 81).
  9. Corporal punishment (Section 82).
  10. Use of children by militant groups  (Section 83).
  11. Kidnapping and abduction of a child (Section 84).
  12. Offences committed on physically impaired children (Section 85).
  13. Classification of offences and designated court (Section 86).
  14. Abetment (Section 87).
  15. Alternative punishment (Section 88).
  16. Offences committed by a child under this chapter (Section 89).

Punishments under other statutes 

Indian Penal Code

There are several provisions under the Indian Penal Code, 1860 that are offences and a violation of child rights, some are as follows:

  • Murder 

Section 300 (murder except in case of culpable homicide), Section 301 (culpable homicide by causing the death of a person other than a person whose death was intended), Section 302 (punishment for murder) and Section 303 (punishment for murder by life-convict) of the IPC discusses murder. Everything ranging from what is murder to the punishment of murder is talked about in these Sections. These provisions are applicable to the offenders who kill/murder a child or minor, as well. 

  • Abatement to suicide 

Section 305 (abatement of the suicide of child or an insane person) and Section 306 (abatement of suicide) in the IPC is that of abetment of suicide under 18 years of age, or by any insane or a delirious person, or an idiot person or an intoxicated person and the punishments applicable thereof. 

  • Offences causing miscarriage, exposure of infants, etc

Section 312 (voluntarily causing a woman with a child to miscarry), Section 313 (miscarriage without consent) and Section 314 (causing the death of a woman with intent to cause miscarriage) discuss the offences relating to causing miscarriage.  

Whereas, Section 315 (mala fide act with intention of preventing a child from being born or likely to cause its death) and Section 316 (causing the death of a quick unborn child) discuss the injuries born to unborn children. 

Further, Section 317 discusses the exposure and abatement of a child under 12 years of age by parents or guardians. Section 318 discusses the intentional concealment of the birth of a child by secretly burying it or disposing of it. 

  • Kidnapping, abduction, slavery and forced labour 

Section 359 to Section 374 of the IPC comprises kidnapping, abduction, slavery, sale of minors and forced labour.

Section 359 states that kidnapping is of two types:

  1. Kidnapping from India (Section 359-360 & 363),
  2. Kidnapping from lawful guardianship (Section 361-363). 

Section 360 discusses kidnapping from India and Section 361 discusses kidnapping from lawful guardianship. Whereas Section 362 talks about abduction (taking someone to a place against their will), Section 363 discusses the punishment for kidnapping, Section 363 A talks about kidnapping or maiming a minor for purposes of begging,  Section 364 talks about kidnapping or abducting in order to murder, Section 365 discusses kidnapping or abducting with intent secretly and wrongfully to confine a person, Section 366 discusses kidnapping or abducting a woman to force her into getting married or to have intercourse, Section 367 discusses kidnapping or auditing a person to expose a person to serious injury, slavery, etc., Section 368 discusses the repercussions for illegally concealing or keeping in captivity, kidnapped or abducted person, Section 369 discusses the kidnapping or abduction of a child below 10 years of age with an intent to dishonestly obtain any property from its (child’s) person, Section 370 discusses importing, exporting, buying, selling or disposing any person as a slave, Section 371 covers punishment for habitual dealing in slaves. Further, Section 372 talks about the sale of any minor for prostitution, etc., Section 373 talks about buying a minor for prostitution, etc., and lastly, Section 374 states that any individual who forces another individual for labour against the will shall be punished. 

  • Rape

Section 375 of the IPC deals with rape against will, with or without consent when she is under sixteen years of age, etc.

A note must be taken that after the 2013 Amendment, sexual intercourse or sexual acts performed by a man with his own wife, the wife not being under fifteen years of age, is not rape. 

Protection of Children from Sexual Offences (POCSO)

The Government of India enacted the (POCSO) in 2012 to safeguard children from crimes such as sexual abuse, sexual assault, sexual harassment and pornography. This act prescribes strict penalties for the crime. The maximum penalty under this Act is life imprisonment and a fine. 

Offences against the POCSO Act are:

  • Penetrative sexual assault

It is the act of inserting a penis, an object or any part of the body in a child’s vagina, urethra, anus or mouth; or instigating or making the child do so with them or another person. The punishment for such acts is covered under Section 4 of the Act. 

  • Sexual assault

Section 7 of the POCSO Act defines sexual assault as the act of touching the vagina, penis, anus or breasts of the child with sexual intent or making the child touch the aforementioned body parts of such person or another person or performing any act involving physical contact without penetration. Section 8 of the Act states that committing such a crime shall attract a punishment of imprisonment of a term not less than 3 years, which is extendable up to 5 years along with a fine.  

  • Aggravated penetrative or aggravated sexual assault

Section 9 of the Act covers aggravated sexual assault performed by either a police officer, a member of the armed or security forces, a public servant or jail staff, etc. Section 10 of the Act states that a person committing such an act shall be punished with an imprisonment of a term not less than 5 years, which can be extended to 7 years, and also be liable to a fine. 

  • Sexual harassment

Section 11 of the Act states that any person who passes any sexual remarks, or makes any gestures with an object or part of the body or makes a child do so or anything that involves sexual intent shall be termed to have perpetrated sexual harassment. The punishment for such activity stated under Section 12 is imprisonment of up to 3 years and also a fine. 

  • Child pornography

Section 13 of the Act states that any person who is involved in sexual gratification of a child or involves a child in representing its sexual organs or uses the child for engaging in real or stimulating sexual acts (with or without penetration) or is representing the child indecently or in an obscene manner in any form of media (print, TV channel advertisement, etc) is termed to be guilty of an offence of using a child for pornographic purposes. The punishment for the same as per Section 14 of the Act is imprisonment for a term not less than 5 years or 7 years (depending on the event) and also fine. 

Note of information : In 2019, Parliament passed the POCSO Bill, 2019. This bill aimed to improve the criminal provisions related to sexual offences against children by including the death penalty in the provision of the law. 

Information Technology Act, 2000

The Information (IT) Act, 2000 contains sufficient provisions for combating the prevailing cyber crimes. In particular, Section 67B of the Act specifically provides for strict penalties for publishing, browsing or transmitting child pornography electronically. 

In addition, Section 79 of the IT Act and the Information Technology (Intermediary Guidelines) Rules, 2000 require that the intermediaries shall observe due diligence while discharging duties and shall inform the users of computers resources to act accordingly.   

Trial of offences against children

Now that we know the offences and crimes committed against children and minors, let us have a glance at the trials of such offences. 

POCSO courts are those special courts that are established specially for trials of cases of crimes against children. Such courts are aimed at protecting minors and their victimisation. In India, there are around 597 fast track courts, out of which 321 are exclusively POCSO courts. The High Courts are responsible for monitoring the working and controlling of POCSO courts. 

In recent years, the number of crimes against children has increased and so has the pendencies in the special children courts. Even though the high courts and states have taken several measures like the appointment of 459 special prosecutors, 729 special police units and 597 children courts in 681 districts, an efficient monitoring system needs to be implemented to ensure the trials are completed in a given time frame.  

Sections under several Acts involving the trial of child rights’ offenders

Provisions under POCSO Act and its Amendment 

  • This Act provides for the establishment of special courts for the trial of offences or for the prosecution of offenders who commit an offence under the said Act. The best interest of the child is paramount at all stages of the judicial process. 
  • The Act comprises child-friendly procedures for reporting, recording evidence, investigation and trial of offences. 
  • Under this Act, even an unsuccessful intent to commit an offence must be penalized, and thus, the attempt to commit an offence is made liable for up to half the penalty prescribed for the original punishment. 
  • The Act also has provisions for instigating an offence, which is considered similar to the commission of an offence. 
  • For the more heinous offences like sexual assault and harassment, the burden of proof is shifted to the accused. This provision has been implemented keeping in mind the greater vulnerability and innocence of children. 
  • For averting misuse of the law, a provision for making erroneous complaints has been implemented. Under Section 22 of the Act, committing such an act attracts a punishment of imprisonment of up to 6 months and if a false complaint is made against a child, the punishment is greater of up to 12 months. 
  • Under Section 23 of the Act, the media cannot disclose the identity of the child. If breached, the penalty may be from 6 months to 1 year. 
  • Under Section 35, the Act states that evidence of the child must be recorded within 30 days and the special courts must, as far as possible, complete the trial of such offences within a year. 
  • Further, the Sections of this Act apply in addition to the other provisions of any other law and do not deviate from them. In case of any clashes, the provisions of this Act will supersede all other provisions. 
  • This Act is applicable only to child survivors and adult offenders. Thus, if two children are having intimate relations with each other or if a child has committed a sexual offence against an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000 will apply. 

Provisions under Juvenile Justice (Care and Protection) Act, 2015

  • Section 25 has special provisions in respect of pending cases. It states that all proceedings referring to a child, alleged or to be found to be in conflict of law, which is pending before a board or any court on the date of commencement of this Act, shall be continued in that board or court as if the Act had not been enacted. 
  • Whereas, Section 86 of the Act states the following:
  1. In case if an offence is punishable with imprisonment for a term of more than 7 years under this Act, then, such an offence shall be cognizable, non-bailable and triable by a Children’s Court. 
  2. In case if an offence is punishable with imprisonment for a term of 3 years under this Act, then, such an offence shall be cognizable, non-bailable and triable by a Magistrate of First Class. 
  3. In case if an offence is punishable with imprisonment for a term less than 3 years under this Act, then, such an offence shall be non-cognizable, bailable and triable by any Magistrate.

Provisions under the Commission for protection of Child Rights Act, 2005

  • Section 25 in the Act has special provisions for Children’s Courts. It states that for the purpose of providing speedy trial of offences against children or for offences committed that are a violation of child rights, the State Government with the agreement of Chief Justice of High Court shall have at least one court in the State or a Session Court in each district. 
  • Moreover, Section 26 discusses the appointment of a special public prosecutor for every Children’s Court by the State Government. The government, for conducting cases in that court, can even appoint an advocate who has been practising for not less than 7 years. 

Current status

As per an article published on Business Standard, the Praja Foundation report established that even if there was a decline in crimes against children in Delhi, the trial of 99% of cases under the POCSO Act was still pending. The report also brought attention to the fact that the POCSO Act was enacted keeping in mind the sole purpose of providing speedy justice to minors. 

The following are the key takes from the report:

  • Around 42% of the total rape cases were committed against children below 18 years in 2020, as compared to 45% and 47% in 2019 and 2018 respectively. 
  • The highest number of rape victims were in the age group of 12 to 18 years (620 out of 721 in 2020).
  • In 95% of the rape cases, the offenders were known to the victims (686 out of 721 cases). 
  • Out of 67% of cases under the POCSO Act, 93% were unnatural offences. 
  • Out of 3,32,274 IPC cases that were to be tried in the Delhi courts, the trial of 92% of cases was pending as of December 2020. This reflected an overburden on the judiciary leading to the delayed justice for victims.
  • In 2020, the judgments for only 56 cases were given, thus portraying the inefficacy in following the provisions of the said Act. 

As per another article published on NDTV, a new study was carried out by the Kailash Satyarthi Children’s Foundation (KSCF) which analysed the status of disposal of cases registered under the POCSO Act. It is based on the data and information published by the National Crime Records Bureau (NCRB). 

The following are the key takes from the report:

  • Every year, as many as 3,000 POCSO cases which were registered and investigated were unsuccessful in reaching the court for a fair trial.
  • Four child victims of sexual abuse are denied justice every day due to the closing of the cases by police because of the inadequate proof or lack of proper clue. 
  • In 2019, 43% of cases were closed by police on the grounds of inadequate proof or lack of clue, as per the final reports filed in the court.
  • From the NCRB data, a majority (two-fifths) of POCSO cases were disposed off/closed by the police without charge-sheeting. The reason behind this was stated that the cases were true, but they lacked the evidence or were untraceable. 
  • The study found that 51% of POCSO-based cases were registered in Madhya Pradesh, Maharashtra, Uttar Pradesh, Haryana, and Delhi.
  • The study also states that the courts are in dire need of advancing the justice delivery mechanism, as up to 89% of victims of child sexual abuse were awaiting justice by the end of 2019.

As per another article published by the Free Press Journal, the one-year timeframe for POCSO cases under Section 35 of the POCSO Act is only on paper. Also, even if there are special courts designed under this Act, an average of about three years for the cases to conclude, which may extend to four or six years, was estimated. as per the Prosecutors, the delay was due to the overburdened courts, given the fact that many POCSO cases were being filed.

Last but not the least, an article published on DNA in 2018 opinionated that India would take 20 yrs to clear the backlog of 2016 POCSO cases. This statement was given by Nobel Peace Laureate and child rights activist Kailash Satyarthi. 

Recent cases of trials of child rights offenders

Thresiamma Varkey’s v. State of Kerala (2017)

In this case, the question at hand was ‘Whether an offence committed before the commencement of any Act be tried in which court?’

The offence (a minor girl aged 13 years was found employed in the house of the petitioner as a servant for a meagre wage of ₹100/- per month) was allegedly committed on 5th June 2011 and the new Act i.e. the Juvenile Justice (Care and Protection of Children) Act, 2015 became effective on 15th January 2016. 

Here, the Court held that the change of law was merely a change of forum, i.e. a change in the procedure and not in substantive law. Plus, as per Section 86 of the Juvenile Justice Act, a three-fold classification of the designated courts (Children’s Court, Magistrate of First Class and any Magistrate)  was provided for three types of offences (heinous, serious and petty offences).  

Thus, it was concluded that the court where the case is being tried does not have the jurisdiction to try such an offence. Therefore, the case was redirected to be transferred to the Judicial Magistrate of First Class (JMFC) for trial. 

Ramkirat Munilal Goud v. the State Of Maharashtra And Anr., 2021

In this case, the Division Bench awarded a death sentence to a 30-year-old man who was accused of committing an egregious crime of sexually assaulting a 3-year-old child and then murdering her brutally. 

Amelioration of child rights and modifications in the laws that safeguard them 

Every child has the right to be protected. This not only includes those children who have sustained violence, abuse and exploitation, but also those who are not in any of these unfavourable circumstances. The following are several recommendations that can be implemented for improving the condition of children today and in the prevention of child rights violations-

  • In society at large
  1. Sexual education for children as well as their parents.
  2. Setting up a child helpline number and support centres to break the silence. 
  3. Creating preventive measures and making them known widely to the general public.
  4. Creating a committee for annihilating violence against children.
  5. Restrict harmful traditional practices (like FGM)  by law.
  6. Launching various awareness campaigns and enlightening society about the rights of a child.
  • At the workplace, in the street and in institutions
  1. Raise employees and employers awareness of children’s rights and the impact of corporal punishment on children.
  2. Educate them to listen to their children.
  3. Ensuring the safety of children at work.
  4. Propel and support the growth of child-led organisations. 
  • At the place of study 
  1. In places like schools, educational institutions, etc. there should be an increase in the number of education counsellors/advisers.
  2. Teachers and professors should be sensitised about the ill effects of corporal punishments.
  3. A disciplinary committee that can work in partnership with children’s organizations can be established at school.
  4. The safety and security of children in schools must be ensured.
  • At home
  1. The parents can be made aware of the consequences of violence against children. 
  2. Parents can be taught how to communicate with their children (parent’s school).
  3. They can be provided with alternative methods to discipline children. 
  4. Educating parents about children’s rights and laws prohibiting corporal punishment. 
  5. Various laws can be adopted and implemented on violence against children. 
  • By the Government 
  1. The Government can implement various schemes like scholarship programs for the well-being of children and receive sponsorship from individuals, entrepreneurs, politicians, etc. Tax benefits for encouraging sponsorship can be given to such sponsors. 
  2. More child helpline numbers can be created and these telephone numbers are promoted through advertising. 
  3. More strict laws against child rights violations and effective implementation of the same. 
  4. Stringent laws are to be implemented for any TV channel/show that encourages violence, sex and vulgar activities.
  5. Form local communities with volunteers for campaigning and creating awareness on child rights. 
  6. Government schools must also offer awareness lessons for child rights. 

Conclusion

There is an age-old Bible saying “Children are a gift from the Lord; they are a reward from him”, but with the aforementioned horrendous instances the saying enters into a realm of absurdity. 

Every child deserves to be treated fairly, equally and with utmost dignity, irrespective of all their differences. They are entitled to all the basic rights, no matter what race, colour, caste, creed, language, ethnicity or gender they belong to.  

The nation, the government, the citizens of the country, must stand united and raise their voice against any atrocities a child goes through. It is important that the suffering of children throughout the country be ended, and they should be given a healthy, happy and safe environment that nurtures them physically, mentally and emotionally, only then, will the future of the nation be in safe hands. 

References

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