The Right to Information Act (hereinafter the “Act”) was passed in 2005 with an objective to engender transparency in the workings of the government. Under the Act, the public authorities were mandated to appoint Public Information Officers (PIOs) and also the Appellate Officers. These officers were a part of the public authority itself. However, even after no satisfactory response is received from the above authorities, there is a provision in the Act to file a second appeal with the Central Information Commission or the State Information Commissions. (Hereinafter called “CIC” and “SIC”)
What are CIC and SIC?
The CIC is the quasi-judicial body that deals with the questions of law under the Act. There is only one CIC in India, and it is located in New Delhi.
SIC is located in almost all the states in India. These are similar to the CIC, but their jurisdiction extends only to the boundaries of that state.
CIC can be likened to the Supreme Court, whereas the SIC can be likened to the High Courts. However, there is no appeal from SIC to the CIC. They both are final authorities.
The authority and powers of the CIC and the Act itself. The appointment of the Information Commissioners, their salaries, their tenures, their removal, and all other incidental and ancillary powers are in the Act itself. The powers of the CIC and the SIC are similar to a civil court. The same is provided in Section 18 of the Act. The powers are as follows:
Summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;
Requiring the discovery and inspection of documents;
Receiving evidence on affidavit;
Requisitioning any public record or copies thereof from any court or office;
Requisitioning any public record or copies thereof from any court or office;
Any other matter which may be prescribed.
In simple words, the powers and functions of the CIC and the SIC are to hear the appeals from the Appellate Authority or hear complaints if a PIO has not been appointed.
Hierarchy under the Right to Information Act
Following is the hierarchy:
Public Information Officer
Appellate Authority
State Information Commission/Central Information Commission
The Public Information Officer comes first. The application is filed to him. In case no satisfactory response is received, then an appeal is made to the Appellate Authority. Both of them are persons working within the organization. They are basically the employees of the authority.
In case no proper response is received from the Appellate Authority, an appeal can be filed with the SIC or the CIC. The appellant has a choice in this matter.
The Issue
On paper, all seems fine and dandy. It may seem that this is a foolproof system. If the PIOs and the Appellate Authorities do not reply, provide misleading information, or do not follow the law, an appeal can be filed, and swift and expeditious relief can be obtained from the CIC or the SIC. Unfortunately, it is not the case. It is far from it. The biggest problem right now is getting a date of hearing with the CIC. Recently in the month of June and July, I had filed two appeals with the CIC. Initially, they were returned, citing issues in formatting. (it must be noted that they were quick to return the appeals.) However, after removing the minor defects in the appeals, they were diarized and accepted. One month, two months, three months passed; no intimation from the Registry of the CIC about the first hearing of the case. In case there was a minor delay, the same is understandable, considering the lockdown situation in most states. However, a delay of 3 months without sending any sort of intimation is not acceptable. I called the telephone number provided on the CIC website. No one picked up. After a few days, I sent a mail to the email id mentioned on the website for seeking help. I got a reply stating, “It would be listed in due course. In case of any queries, contact the following number.” A number was provided in the email. I called up the phone number. Nobody picked up, and no call back was received. After several tries, the phone was picked up. I asked him about the status of my appeals. I was surprised when he asked me the year of the filing, not the month or date, the year. I told him that it was June and July. He blatantly and unabashedly stated that it would take at least one more year to get the case listed! He further apprised me that currently, the cases filed in the year 2019 are being tried by the CIC. After all, the cases of 2019 are decided, the ones filed in 2020 would be heard, and then the matters of 2021 would be taken up. This is what is called a travesty of justice.
The entire purpose of the Right to Information Act, 2005 was to provide a swift and expeditious remedy to the applicant seeking information about the affairs of the government. If it would take 2 years to get the date of the first hearing, it can only be imagined how many years it would take actually to dispose of the case. Following would be the procedure:
First hearing would be conducted; (this would take around 1-2 years after filing of the second appeal)
The appellant would be heard;
Notice would be issued;
Parties would be heard; (This would take 1 year at least)
Case would be disposed of.
Therefore, from the filing of the original application with the Public Information Officer and to the disposal of the second appeal, it would take around 3 to 7 years, give or take. The ideal time should not be more than a few months, at maximum.
This is the present situation in the CIC. The CIC is akin to a tribunal. The objective of tribunals is to dispose of the matters expeditiously and swiftly and to reduce the burden of the courts. However, unfortunately, this does not seem to be the case. The CIC is functioning similarly to the courts. It is taking the same time as a court takes. The entire system is built to discourage people from filing RTI applications and getting information. Faster the disposal system, more would be the appeals; more the appeals; more information about the government would be divulged, which is against the interests of the government. The government desires more and more secrecy. As it can be seen from the above story, the CIC was quick to return the appeals but extremely slow to accept them. This manifests the intentions and motives of the system.
The constant lockdowns do not help. They make the situation worse. The government work stops entirely. The courts are the first to stop all the work and the last to commence after the lockdown is over. This takes away 6-8 months easily and gives an excuse to the government to delay.
Another issue that adds up to the delay is the vacancies in the CIC and the SIC. On 18th August 2021, the Supreme Court had issued a direction to all the States to file a Status Report on the vacancies and pendency in the State Information Commissions. Following were some of the observations:
State of Karnataka
The State of Karnataka stated that the Supreme Court that 8 out of 11 posts in the State Information Commission are filled, and advertisements for the rest 3 vacancies had been published.
State of Maharashtra
The State of Maharashtra had 8 posts, and only 4 were filled up. As per an order of the Supreme Court in 2019, the SIC was directed to increase the vacancies to 11. However, this was not done. Adv. Prashant Bhushan, appearing on behalf of the petitioner, informed the court that the pendency in 2019 was 40,000 and was 75,000 in 2021. The Supreme Court ordered the Maharashtra government to fill up the vacancy in 3 weeks.
State of Telangana
There was no appointment in for the SIC in Telangana. The post had remained vacant for one year. The counsel for the state said it was due to Covid. The Supreme Court ordered to appoint a SIC by the next date.
Similar observations were made for the other states as well. The case is still pending at the Supreme Court as on 18th November 2021. The name of the case is Anjali Bhardwaj and others v. Union of India. [WP (c) 436.2018]
The constant lockdowns, vacancies, too much focus on traditional procedures, and the non-compliance by the public authorities of section 4 of the Act (voluntary disclosure) have affected the working of the CIC and the SIC.
Suggestions
Now that the problems have been identified, it becomes imperative to give solutions for the same. Following are some of the solutions:
Compliance with section 4
Section 4 mandates the public authorities to publish all the important information regarding their activities. This includes reports, decisions, government resolutions, orders, budget reports, compliance reports, official communication, as the case may be. The public authorities are lethargic and do not do so. Therefore, this gives rise to RTI applications, which, in turn, give rise to appeals and second appeals.
Half-hearted use of technology
The CIC and SIC must embrace technology like video conferencing, sending notices via email, etc. This decreases the time to send notices and receive replies.
Lockdowns
Lockdowns must not be imposed, and even if they are, judicial work must not be stopped. This point is closely connected with the above point. If technology is completely embraced, virtual courts will become a norm. No number of lockdowns would stop the work.
Vacancies
The vacancies must be filled up as soon as possible. This step would immediately bring down the pendency and the needless delay.
Conclusion
The Right to Information Act aims to provide information to the citizens and empower them to be better citizens of India. The said Act is used primarily for exposing corruption, using the data for litigation and other official purposes, research, inter alia. However, if it is going to take years to obtain the information, it would discourage everyone from making use of the Act. To properly make use of the Act, it is imperative to properly implement it. The Act must be used in the form as well as in substance. Presently, the substance of the Act seems missing.
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The social contract theory has transferred the right to be governed to the state. Therefore it is the state’s responsibility to govern the subject. The sovereign is under obligation to protect social interests. In the words of Rousseau, “the only legitimate political authority is the authority consented to by all the people, who have agreed to such a government by entering into a social contract for the sake of their mutual preservation”. In the democratic state people are supreme. They play an important role in their governance. “It is very rightly said by Abraham Lincoln, democracy is a government of the people, by the people, and for the people”. In a democracy supreme power lies in people. People use the supreme power through the elected representatives via public elections. The elected representatives are representing the will of the people. They are called ministers. The ministers are responsible to administer the government as per the mandate. They are responsible to the parliament for every act. The principle of individual ministerial responsibility ensures accountability and transparency of ministers in their functions. The following article is an attempt to do an analysis of individual ministerial responsibility.
Individual ministerial responsibility
“Individual Ministerial Responsibility is a constitutional convention that makes Government Ministers responsible for not only their own actions but also for those of their department. It is not to be confused with collective cabinet responsibility, which states that cabinet members must publicly approve of its collective decisions or resign”.
In other words, the principle of individual ministerial responsibility is the basis for government accountability where every minister representing the interest of the society is bound to answer to the parliament for the malpractices with or without his information. No doubt every minister is under obligation to resign from his office if he is guilty of any improper behavior. “Its best example is the Secretary of State for Defence, Geoff Hoon, had to explain to the House why a soldier had died in Iraq? His answer was that the soldier died because the Ministry of Defence had not supplied enough body armor for the number of troops there.”
Definition of individual ministerial responsibility
“Individual ministerial responsibility (IMR) was defined by Sir Ivor Jennings as having two elements, Each Minister is responsible to Parliament for the conduct of his Department and the act of every Civil Servant is by convention regarded as the act of his Minister i.e. every minister is accountable for the conduct (personal and general) as well as for the acts done or not done by officials of his department.”
The doctrine of individual ministerial responsibility
“The doctrine of individual ministerial responsibility is a constitutional convention”. It is the principle to control the unruly horse of arbitrary powers of the government. It creates check and balance for the ministers of the government. The doctrine of individual responsibility is a watchdog to protect the social interest. “Personal responsibility or individual responsibility is the idea that human beings choose, instigate, or otherwise cause their own actions. A corollary idea is that because we cause our actions, we can be held morally accountable or legally liable”. “In the British political system the term ministerial responsibility denotes the Cabinet’s collective responsibility; therefore it may be termed as collective ministerial responsibility. It is a deeply rooted mandate of the constitution of a parliamentary type democratic government that all cabinets must support and respect all decisions taken in the parliament by the government.”
Origin of convention of individual ministerial responsibility
It is true that the convention of individual ministerial responsibility originated due to the development of political parties to contest the governmental election. It progressed during the nineteenth century due to the tendency of ministers to think about their dominance over the ministerial department. It originated due to the restricted thinking of ministers about the government functions in the modern state. As the number of political parties and members in political parties increased the thinking was changed. Moreover, with the advancement of the idea of the welfare state, the nature of the convention of individual ministerial responsibility has changed to a greater extent in the United Kingdom. Even today, the convention of individual ministerial responsibility is very important in the politics of the United Kingdom.
It may have originated due to the absence of any statute regarding it and the Unwritten Constitution of the United Kingdom. “The ministerial responsibility of government ministers is, in fact, professional and ethical responsibility for performance, internal politics and integrity”. Apart from the punishment, there are different checks on the accountability of the ministers. One of such checks is the individual ministerial responsibility.
Three aspects of individual ministerial responsibility
“Three aspects of individual ministerial responsibility includes the primary, personal and vicarious responsibility in which the primary responsibility is related to the acts concerning to the ministerial portfolios like crossing the line and interfering in a departmental decision within a ministerial portfolio while personal responsibility relates to the personal conduct of ministers like the misuse of a cabinet position for personal gain and vicarious responsibility makes the final analysis that a Cabinet Minister is responsible for every activity relating to the policy or operational arms of the departments or agencies within their portfolio which is committed with or without their knowledge.”
Impact of individual ministerial responsibility on accountability of ministers
Individual ministerial responsibility has its own advantages. It may create a positive impact on the functioning of the ministers. It is able to mold the behavior of ministers in tune with the objectives of the ministerial department. “Following are four different options” available to the parliament to implement the individual ministerial responsibility for the sake of accountability.
Inform and explain
It is true that the ministers are bound to the policies of the parliament. Therefore they are required to follow parliamentary discipline. They are under obligation to explain their functions to the parliament so as to get authority from the parliament to discharge their functions smoothly and carefully. It is one of the important aspects of individual ministerial responsibility. Therefore ministers always ask questions to the parliament whenever necessary to address any rampant issue before the parliament. The parliament may provide appropriate replies through parliamentary discussion, consultation papers, etc.
Apologise
No human is perfect. All humans are fallible to stress due to emotional, mental, physical imbalance. Human beings are not machines who can do the same thing regularly over a period of time. Therefore humans are bound to make mistakes. Mistakes may be with or without intention. Ministers are also human beings. If any mistake is committed by the ministers while in office then he may accept it fearlessly. He may express an apology for the mistake to the parliament. It is the discretion of the parliament to forgive the minister for the mistake or compel him to submit his resignation.
Take action
If the minister is guilty of any serious act which is against the affairs of the parliamentary business then the parliament may order an inquiry into the issue. After getting the result of the inquiry the parliament may take appropriate action against the guilty minister so as to avoid repetition of such unsatisfactory acts from the minister in the future. Such action may be compulsory resignation or dismissal from work temporarily. The purpose of such action is to create accountability among the ministers in the acts performed by them under the authority of the parliament.
Resignation
Resignation is one of the harsh remedies available with the parliament for the misconduct of ministers. Generally, opposition political parties raise the plea for the resignation of a particular minister. Such an action for resignation is carried out for failure of a particular minister to work satisfactorily within the parameters of the parliament. It is a very strict action. It may result due to political battles among political parties. Therefore it is a remedy for accountability of ministers as well as a sanction to deter them.
Role of media in individual ministerial responsibility
Media plays a significant role in molding public opinion in favor of individual ministerial responsibility. Ministers are always under the watchtower of the media. Therefore if there is any misconduct on the part of the ministers then the media highlights it. It creates public awareness about the unsatisfactory act of the ministers. It may create pressure upon the individual ministerial responsibility to work honestly. Thus, the media being the fourth pillar of democracy is shouldered with the burden to create pressure of public opinion upon the individual minister. The role of the media is very effective in preserving accountability in the functioning of ministers. It may be very supportive in maintaining discipline among ministers, as well. Recently, the media is played a very crucial role in creating public pressure upon individual ministerial responsibilities. Accordingly, different scandals unraveled by the media often compel ministers either to resign from their office or to express an apology to the parliament. No doubt, unbiased media is a shield to guard individual ministerial responsibility.
Conclusion
On the basis of the above analysis of individual ministerial responsibility, it may be concluded that the doctrine of individual ministerial responsibility originated due to the absence of any statute prescribing code of conduct of ministers. Recently, Questions of procedure for ministers (QPM), was published in May 1992 to lay certain guidelines regarding it. Further QPM was revised and reissued as the Ministerial Code in 1997. The Scott and Nolan Reports have also streamlined the guidelines for the individual ministerial responsibility in the United Kingdom. Thus, the doctrine of individual ministerial responsibility is intended to assure ministerial accountability but in reality, it restricts rather than facilitates accountability.
References
Books
Bell, P., Parry, R., Thomas, I., Rose, R. (1987). Ministers and ministries: a functional analysis. United Kingdom: Clarendon Press.
Jennings, Sir Ivor, Law and the Constitution, 4th edition, London 1955.
Ministerial Responsibility. (1989). United Kingdom: Oxford University Press.
Shepard, W. J. (1909). Ministerial Responsibility: A Study in Comparative Constitutional Law. (n.p.): (n.p.).
Vassiliadis, I. L. (2018). Party Responsibility in Government Terminations. United States: University of Rochester.
Verhey, L. F. M., Broeksteeg, H., Driessche, I. V. d. (2008). Political Accountability in Europe: Which Way Forward? : a Traditional Concept of Parliamentary Democracy in an EU Context. Netherlands: International Specialized Book Service Incorporated.
Woodhouse, D. (1994). Ministers and parliament: accountability in theory and practice. United Kingdom: Clarendon Press.
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This article is written by Aastha Prakash Singhand the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Media plays an important role in influencing people’s opinion regarding different situations in society. Media presents story in a manner that will capture public’s attention. Recently media has also been involved in criminal justice trials, specially in high profile cases (attracting a lot of interest and attention from public, television and newspaper etc). Now the question is that whether the increased media coverage of criminal trials can make an impact on the outcome of a high-profile case.
The answer to this question is complex but the technological advancement in media affects the right of the parties involved in the case. Furthermore, the high-profile cases subjected to intense media scrutinity to determine whether or not the media had made impact on the outcome. These media trail could weaken judicial decision making. Though media has become an inevitable part of our society. We can’t always depend on it because of a lot of misinformation which leads to fake news i.e. mostly it consists of fabricated stories which can attract attention of public, no verified facts, sources, or quotes.
These stories are forged to brainwash reader’s own opinion or to deceive them. From past few years, the number of fake news story has been increased because they are shared faster online that one can imagine. Undoubtedly, media exerts great influence over people’s mind. Media trials are ethically wrong and people have presupposed opinion fed by media.
Table of Contents
Influence of media on the Criminal Justice System of India
Media exercises long-term impacts on the public, though these influences are indirect, gradual, and small. These gradual effects become important over time and with prolonged contact with the medium. The customer depend on media for information to attain particular needs and particular goals. The most probable ways in which media was believed to interfere with the criminal justice system’s operation was by airing trial cases as news, by giving opinion, by critically analyzing how a certain case is being conducted, or by following the case from when a crime takes place. This information can be provided in different media that include television, newspaper, radio, and social media. I selected cases that were already in existence and that had attracted media at the early stages –
The Priyadarshini Matto case (2006) – After a long 10 years i.e. 2006 the High Court of New Delhi was firm that Santosh Kumar Singh was the one who attempted the rape and the murder.Later the media pulled out censorious information which had not been presented in the court during the trials.
The Bhima-Koregaon case – The investigation commenced as an enquiry into the Bhima Koregaon violence. The course of the investigation was sought to be deflected by alleging (in the course of the press briefings of the police) that there was a plot against the Prime Minister. Such an allegation is indeed of a serious order. Such allegations require responsible attention and cannot be bandied about by police officers in media briefings. “Excessive use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. In this present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media.” – Supreme court
In the same light, the Noida Double Murder case(2008) is another example of the media’s exceeding its boundaries. The murder of Aarushi Talwar and Hemraj Banjade aroused a lot of interest from the public as the girl’s parents were accused of double murder and the media left no stone unturned in using it to their advantage. The investigation was going on and the media has already declared them murderers.
Media is using unethical ways for their own profits, revenues, TRP’s etc in high-profile cases and also misleads the public and weakens the judicial decision making.
Mumbai Drug Bust case ( Aryan Khan drugs case )
On 2nd October, Shahrukh Khan’s son got arrested in drug case. Aryan Khan, along with seven others, was detained by the NCB during a raid on a cruise ship off Mumbai coast earlier this month. The raid was conducted based on a tip-off that a rave party was happening onboard. The cruise ship was on its way to Goa from Mumbai. Aryan, along with Arbaaz Merchant, Munmun Dhamecha and five others accused in the alleged drugs case was sent to 14-day judicial custody. This cruise ship was named The Empress Ship. It was reported that many banned drugs were being used. In the court hearing NCB lawyer said all these offences are bailable offences but because some illegal material was seized from the party and whatsapp chats was recovered.
Three person were taken in custody stating it will help in investigation. On the other hand, the defence lawyer of Aryan argued that nothing was found, neither drugs were found nor he has consumed any drugs. There’s no point to take aryan in custody. The court after hearing both the side decided that Aryan can stay in custody till 4th October. Same day 5 more people were arrested. NCB also mentioned that during an investigation they recovered whatsapp chats which involves Aryan Khan and they found incriminating and shocking evidences in the chat about International Drug Trafficking was going on.
The custody was again extended. The cruise ship said that they aren’t involved directly or indirectly in this case, as the ship was chartered for private event. On 7 October, 17 people were arrested. Now all the people under custody has to go to special court that hears only the matter under NDPS Act, 1985.
Why are people calling it politically motivated now
The media is playing a crucial role in painting Aryan Khan son of Shahrukh as an accussed without any fair trial. Media is not showing the facts but are showing that is of no importance and busy in fabricating stories. Media house is busy in demeaning Shahrukh Khan and all the other Khan and using it as propoganda against bollywood. Media house is giving 24 hours entertainment to public without explaining the facts of the matter. A lot of chaos in social media went viral where candidates of BJP were found in raid, they were private individuals and not part of NCB. When asked by them they lied by giving excuses which backfired them and the truth came in front in social media itself. Many videos and photos of these BJP members
together went viral though they mentioned they don’t know each other. Maharstra’s Minister also made another allegation, he claimed – NCB arrested more 3 people on that day, who were later released because they were getting calls from BJP leaders from Delhi and Maharashtra.
Media house are mostly sold out these days, all they do is to favour a specific party and also do media trail on high profile cases to gain profits and TRP’s in this competitive society. Media is no more an independent body. This is the reason by Aryan Khan case is considered to be a politically motivated case and media is participating actively in this agenda. Our media causes so much uproar about drugs, they never talk about solution. Their sole purpose is to entertain and make assumptions and putting forward it as decisions. Same thing has been done in Aryan Khan’s case, investigation is still going on but media has already fed the public and portrayed Aryan Khan as Criminal. It is essential that the trail must be carried out by court and not media.
Conclusion
Media is an intergral part of democracy.Media is a guard-dog in democracy. Media had overstepped upon the sanctity of the judiciary in high-profile criminal cases like the Indrani Mukerjee case, Jessica Lal case etc. Some of the accused are set free due to the media intervention. The current media conditions are not very inspiring and some major matters need to be addressed. There have been numerous instances where the media has been blamed and accused of conducting the trial of the accused by passing the “Verdict” according to their investigation before the judgement is passed by the Court.
It is evident that influence of media had more negative effect rather than positive effect. Indian media is regulated by politics and political parties now more than ever. The trials are also affected by what media is showing. Some restriction has to be imposed on media that it stops affecting people life who are involved in the case and outside the case. They should show the facts and not stories to the public and shall have certain boundaries for media trial in India.
“ Law – An accused is innocent until proven guilty.
Society – An accused is guilty until proven innocent.
Media – An accused is always guilty.”
References
Santosh Kumar Singh vs State Th.Cbi [2010] 9 SCC 747
What if your boss tells you, if you achieve a particular sales target, you will be entitled to an all-expense-paid tour to any destination in the world of your choice! Wouldn’t it be a call to action and motivate you to act? Later on, you would find that once the target is achieved, the company is on a cost-cutting spree, as the finance team has signaled financial prudence for the next few years due to the precarious economic situation. Wouldn’t you feel cheated? Wouldn’t a thought cross your mind to sue your boss and your company? Well, that is exactly the feeling when a political party makes huge, sometimes unbelievable promises in their election manifestos to be voted to power. How do such manifestos stand in scrutiny to the law of the land? Is there a remedy available to get them enforced? These are some of the questions we will discuss in this article.
Defining a ‘manifesto’
A manifesto is what a vision statement is to a company but a more dramatic call to action, almost like a slogan or advertisement of its promise to achieve a particular goal if a political party gets elected. A manifesto is a published declaration of the intentions, motives, or views of the issuer, be it an individual, group, political party, or government.
Why is there an expectation of enforcing the election manifesto?
There have been several instances where the politicians of several political parties have made promises in their manifestos and have failed to fulfill them post their election. This made people wary of such promises and created a lack of trust. It is this chain of broken promises that have been debated in society and even brought into active debates time and again by the media. Even the judicial courts have issued directives and guidelines -based on which (Election Commission of India 2015) has issued a model election code of conduct to various political parties to ensure no unfair advantage is taken in the immediate elections vote share by the political parties.
However, these regulations are for more immediate purposes to ensure free and fair elections. The inherent need for enforceability of election manifestos is to bring accountability and curb the dissipation of the hope of the innocent public who are unaware of the politics behind such claims. Many promises are too good to be true and as rightly defined, they have the potential to churn emotions and raise expectations and hence these promises need to be enforced.
Are manifestos enforceable?
The basic question that has been debated by many is whether the manifestos are enforceable? There have been debates regarding this in legal circles,, where recourse is taken to the law of contracts. Accordingly, a manifesto is a promise, an offer and as per Section 10 ofthe law of contract, 1872 anyone making a contract is estopped from denying the promise made and could be made accountable to it.
Most recently,
In Najma versus Government of NCT of Delhion July 22nd, 2021 the court held a stay order on the decision to “pay the rent” on behalf of tenants unable to pay the same due to poverty, in light of the COVID-19 pandemic. The writ wanted the chief minister of Delhi’s promise, as the basis for the petition in a press conference, dated March 29, 2020.
The court decided that the payment can be made by the government if there exists a scheme or a policy, made for such people affected by the pandemic. The Chief Minister had no consideration, therefore cannot be made to pay the rent.
However, as per the author, the decision to announce relief cannot be randomly made by a single person without considering the opinions of the cabinet ministers and the central government’s advice. A thorough proposal has to be passed by the responsible Delhi State Government or the Central Government after a thorough project report and feasibility study causes, it is the taxpayer’s money. Delhi government is a mixed government, in the sense that it does not have full autonomy. The finances are held by the center, and therefore one cannot make declarations without first making a proposal and thorough debate.
This must be the case even if Delhi or any state has full autonomy. Any decision having financial and crucial consequences affecting wide stakeholders has to be made only after considering and satisfying all the objections. Otherwise, it would become a contravention of a system for extorting money from the exchequer of the state. A promise made has to be backed by a visible plan of implementation with solid intent and the essential elements of a formal contract.
There have been a plethora of judgments on election manifestos and the associated practices by the politicians. For instance:
High Court Tamil Nadu W.P.(MD). No.18733 of 2020 in M.Chandramohan (M/48/2020) vs. The Secretary
Held: Gave a list of 19 questions which funneled to a contention that:
The political parties must refrain from giving exaggerated promises as it may burden the public money kept in state funds, during times of financial distress. It also agreed that not all promises are corrupt, but many are and so guidelines must be given by the election commission of India to form a model code of conduct based on the SC court decision on S.Subramaniam Balaji vs. State of Tamil Nadu and Othersreported in (2013) 9 Supreme Court Cases 659.
High court of Kerala WP(C) NO. 11054 of 2021 Sibha S vs. Union Of India
Held: That the promises made before the election, and upon achieving power, have a moral duty to be fulfilled. It may fructify such an offer by any democratic strategy or means available in line with socio-welfare ideas for the masses.
Thus, the political parties should be prohibited or prevented from giving election promises, which they are not capable of performing, as that would be misleading. These decisions show that though there is an issue stated, there are no laws to enforce them.
What is the purpose of the election manifestos?
The purpose of the election manifestos can be understood from its definition. It is fundamentally a statement made to achieve the objectives of the people who will vote for them.
There are several issues and demands by the public which need to be addressed. The elected representatives pass such demands in the house of the parliament at the center and the legislative assembly and council at the state level and make acts that are implemented. Many a time certain schemes and policies are made which may not have the backing of an act but an ordinance or simple approvals by the president of the governors can allow such spendings. Thus we see that the ideals of the public at large are fulfilled if the election manifestos are properly implemented.
Election Commission of India on election manifestos based on the SC judgment on 05.07.2013 between S.Subramaniam Balaji vs. Government of Tamil Nadu and Others
The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. The Election Commission operates under the authority of the Constitution as per Article 324 and subsequently enacted the Representationof the People Act,1951.
Supreme Court judgment dated 05.07.2013 in SLP(C) No.21455 of 2008 and TC No.112 of 2011- S.Subramaniam Balaji vs. Government of Tamil Nadu and Others
It passed an order for framing guidelines on manifestos of the Political parties on the election commission of India. The Supreme Court stated free and fair election is fundamental to constitutional ideals. The distribution of powers has to be maintained and the election commission must not enter the domain of legislative measures If legislation is required it must be passed by the legislature to govern the political parties. Accordingly, the all-party meet was conducted by the Election Commission of India to take their views on it.
The ECI (Election Commission of India) has conducted comparative studies of various international legislation and formed a model code of conduct passed and Section VIII
The election manifestos cannot be considered as a corrupt practice according to the Section 123 of The Representation of People’s Act, 1951; and distributing freebies interrupts the process of a fair election.
The election commission must issue the model code of conduct as follows to en- sure free and fair election as it has done in the past;
If the election manifesto is made before the election dates are announced then the ECI has no authority to regulate, however, an exception can be made in exceptional cases.
The meetings with the political parties were conducted to maintain a balance between the rights of the political parties to announce their manifestos and maintain a level field for fair elections.
ECI made guidelines to political parties to ensure the spirit and directive principles of state policy are abided by for declaring welfare policies without exaggerated promises which prima facie seems objectionable.
The current model code of conduct at the time the above was ordered by the Supreme Court has good provisions such as “All parties and candidates must not indulge in corrupt activities, bribing, intimidation, impersonation of voters, canvass- sing within 100 meters of the polling station during the last 48 hours after the date fixed for the closure of the poll is announced, transportation or conveyance of voters.”
In Para VII Party in Power
The party at center or state shall not misuse official power to sanction funds/grants, lay any foundation stone, make the promise of infrastructure development projects, make any specific appointments in the government after election dates are announced to influence the voter.
Internationali Manifesto practices
In the United States of America, policies affecting large populations are discussed broadly on topics such as economic policy, foreign policy, healthcare, governance reform, environmental issues, and immigration to name a few. No specific benefits are discussed.
Western Europe is more concrete in terms of its manifestos where financial paragraphs are added which can be audited to calculate how realistic the promise is.
In Bhutan the election manifestos are audited by the election commission and only after their approval are they allowed to be published to the public.
Mexico too has a body such as the Federal Electoral Institute (IFE) which vets the documents in election manifestos to ensure that they are in line with the basic beliefs of the parties.
Having a look at the author’s point of view
The election promises signal intent or at best an invitation to offer, and not promises per se if construed strictly from the Contract Act 1872 point of view. Although offer or proposal is defined as per Section 2(a) of the Indian Contract Act. There is no direct law for the invitation to offer. However, the concept has strong precedential backing by the famous case Carlill vs. Carbolic Smoke Balls Company where the decision was in favor of the plaintiff. It was a unilateral general offer (though the courts believed otherwise stated it was a specific offer due to an offer of consideration of pound 100 reward to anyone who followed the instruction of smoking the product to avoid influenza infection. The offer was unilateral or general, and as soon as someone purchased the product, it became specific once they made a claim. This case brings into consideration many questions such as what is a general contract, unilateral contract, consideration? Is it a specific offer or a general offer? And so on.
If we apply the case to advertisements made by the companies, then similar questions may be asked and newer remedies claimed against false advertisements today. However, the basic question is, whether political parties are considered similar to businesses offering products or services? They do, of course, offer services. But can the offers made by the members of the political party bind them? Who is the principal? Are the promises made in the manifestos an offer or invitation to offer? To understand that, one has to understand the difference between offer and invitation to offer, the author has provided examples of invitations to offer, not described in The Indian Contract Act 1872.
If a shop displays merchandise, it is an invitation to offer, to the general public, to visit the shop and make an offer to buy. If the shopkeeper agrees to sell, then it is an agreement to the offer made. Here although the shop made an invitation to offer, the actual offer is made by the consumer, as the shop did not go to the consumer. This is a fundamental difference.
Taking the same context, are politicians or members of the political parties, or the parties themselves selling something? Are they selling any service or dream by their promises? On selecting a particular member to represent, is the entire party responsible? How can one get the intent? Whether it was an offer or an invitation to offer?
In an invitation to offer, what the politicians are saying is this:- Elect me to power, and other members of my party and we would do x and y. This doing of x and y by way of promise is an advertisement, if the invitation to offer premise is selected.
This means when we elect them we have made an offer to pay taxes or do our duty which helps them to bring their part of the acceptance to light. The promise can be implemented but we have to offer them first to fulfill such a promise, by way of making a policy draft request or application, or our inputs as to how such a promise can be enforced. They are our representatives but the project report (if we consider it in a business sense) has to be made by us or suggested by us. It would be accepted by the cabinet and policies would be framed. The consolidated funds will then allocate funds to ministers to implement the policies or schemes.
However, the problem lies in the fact that we as voters would not be involved in the day-to-day functioning of this process. Are such promises feasible? Who pays for such a scheme?
If the party is elected in majority, the representation is not 100% of all people in a state. However, the policies can benefit everyone, even if they did not vote. If the party is in minority it has to take support from other parties. Any decision made will be pre- sumed to be the collective will of the people as it is through a system of democracy.
Policies and schemes are in the domain of the executive and may change with the change of power. To ensure that promises are fulfilled, an act has to be passed by the parliament, only then it will have the potential to be implemented by any political par- ty that comes to power. The making of the policy is completed only after the negotiations by way of offer, acceptance, counter-offer is done by way of commission of reports generated from consultation with experts, common man and various stake-holders ( read offer).
Revision, amendments are all a part of the complex process of negotiation, which is completed when the policy or scheme is framed or sanctioned. This is acceptance by the political party through their party members. Now these schemes and policies have to be analyzed as to whether they can be enforced and whether there is a need for the act or its rules to be framed on the same. Only then can an individual go to court for enforceability of the manifesto promises. An Act or a Rule which mentions specifics can be enforceable.
Therefore one has to see whether there is a solid intent behind the offer or invitation to offer. In Carlill vs. Carbolic Smoke Ball Company, the contract was an invitation to offer converted to offer when the product was consumed and claimed. The deposit of 1000 pounds by the company in an account for presumable claims showed it was not frivolous but specific.
Extrapolating to promise by the political, we must ask the following questions:-
Whether there is an offer or invitation to offer?
Whether there is any concrete intent by using the objective test of steps taken by the promisor to be considered?
The merits have to be seen when comparing cases between two private individuals such as Carlill v/s carbolic smoke ball company;
The case against a political party, by a private individual would be public v/s private case;
Whether the agreement is a.
Family agreement: (a presumption of no contract is made);
Social agreement (i.e. agreement between friends, no presumption, then case decided on its merits, using the objective test);
Commercial agreements: (a presumption of a valid contract is made); or
Collective agreements: (a presumption of no contract has to be determined to be enforceable ).
Conclusion
Thus the above analysis will help one to determine the framing of contractual liability useful for enforceability. The potential of enforceability of the election manifestos would only be possible when they are backed by a specific plan, intent, and based on data. If these schemes and policies, Acts, and Rules framed on such manifestos are executed and lead to violations, they could be challenged in a court of law.
SLP(C ) No.21455 of 2008 and TC No.112 of 2011- S.Subramaniam Balaji Vs Government of Ta- mil Nadu and Others, S.Subramaniam Balaji v. State of Tamil Nadu and Others reported in (2013) Supreme Court Cases; available at:-https://indiankanoon.org/doc/106854428/ Accessed 6th Nov 2021.
SLP(C ) No.21455 of 2008 and TC No.112 of 2011- S.Subramaniam Balaji Vs Government of Ta- mil Nadu and OthersS.Subramaniam Balaji v. State of Tamil Nadu and Others reported in (2013) 9 Supreme Court Cases 659; available at:-https://indiankanoon.org/doc/106854428/ Accessed 6th Nov 2021;
Election Commission of India, MODEL CODE OF CONDUCT FOR THE GUIDANCE OF POLITICAL PARTIES AND CANDIDATES, dated, ECI Publications, online website, viewed on 6th Nov 2021; available at https://eci.gov.in/mcc/;
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One of the most confusing aspects of American life, whether you are an International or domestic citizen, is ‘filing taxes’. Every individual, whether a citizen or a non-citizen,has an obligation to pay taxes in accordance with the law of the nation. To begin with, one should know that it is the Internal Revenue Service known as the IRS which is the tax collection agency for the United States federal government. Putting it all together, we can say that the IRS is the agency responsible for federal taxes. It does not end here, as the US has a multi-layered income tax system under which taxes are imposed by federal, state, and sometimes even the local governments. Along with filing federal tax forms, you may also be required to file a state income tax return by the filing deadline. It’s a separate requirement from federal tax returns and failure to file it may result in heavy penalty charges. State tax penalties are just as harsh as those imposed by the IRS. The only states that do not charge state income tax are Alaska, Florida, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Washington, and Wyoming. Let’s see it through a real-life example. In the case of filing taxes for the state of California, you may be required to connect with California’s state agency, that is, The Franchise Tax Board. Now, before you get into the world of taxation you need to understand how taxation structure in the United States works.
Structure of US taxation system
The US tax structure is divided into federal, state, local, and special-purpose jurisdiction. Unlike India in which there is central taxation, in the US it is primarily divided into federal and state, having their different tax implications. This means that, in India, there is a need to file only one income tax return whereas in the US we have to file two separate tax returns one for federal and another for the state. There might be cases where the counties or villages may charge their separate tax in addition to the state taxes.
Income tax is in accordance with the tax accounting rule and therefore differs from financial reporting. Hence, there must be no misconceptions regarding taxable income from financial reporting. For instance, in the case of federal tax refunds, a businessman, while preparing a balance sheet and other financial documents of the firm will include all the income even though it is non-taxable and the Internal Revenue Service (IRS) will not tax that exempt income.
Individual Taxpayer Identification Number (ITIN)
In 1996, the Internal Revenue Service (IRS) created the ITIN program to help non-citizens who are not eligible for SSN to be able to pay taxes without any hurdles.
When we study about taxation system, we need to have a clear understanding of a primary form of national ID in U.S i.e Individual Taxpayer Identification Number (ITIN) & Social Security Number(SSN).
As far as the US is concerned, the “ITIN” i.e. Individual Taxpayer Identification Number is for non-citizens or people with foreign status or citizens of the country not having SSN. So, in a situation where a person is a non- US resident, he/she needs to refer to ITIN, which is a nine-digit number in the format of XXX-XX-XXXX which permits you to file an income tax return in case you don’t have an SSN.
ITIN is basically concerned with corporations, estates and trusts, partnerships, and others. It doesn’t provide legal immigration status or work authorization.
How is ITIN useful?
You may use ITIN:
To file a tax return;
To file a late tax return (once the deadline is over);
To open a bank account;
To report money earned by individuals while using social security numbers not given to you by the government;
To claim dependents’ exemptions;
ITIN can also be used to claim various kinds of social benefits.
Filling procedure
A person having a foreign status needs to fill “Form W-7” to get an individual taxpayer Identification number. While applying for ITIN a person will be asked to provide proof of country of origin, Identity, and all other documents as asked by the IRS. Once you have applied for it, it may take a minimum of 6 weeks before you get the ITIN letter.
The IRS does not voluntarily report you to United States Immigration and Citizenship Services for getting an ITIN.
Social Security Number (SSN)
Coming to SSN, it’s also a nine-digit number that the government issues to all citizens and to all persons who are eligible to be residents. It provides legal immigration status or work authorization.
For instance, if you are hired for a job, the employer will ask you for SSN. SSN helps the government to keep records of individuals’ income and the number of years worked. One can claim various benefits using this number.
For every resident taxpayer “SSN” i.e. Social Security Number is mandatory. For a non-citizen person to obtain such a number, he or she needs to fill in a social security card (SSC) i.e., “Form SS-5”. In the process of filling for SSC, you are required to provide your identity, immigration status, work eligibility, and age.
A person under no circumstances should possess both an ITIN and an SSN at the same time. The citizens, as well as residents both, are taxed on global income and they are also allowed to apply for the foreign tax credit. What is important to note here is that the US is one of the two countries in the world that taxes its non-resident citizens on worldwide income in the same manner as residents. The other country that does the same is “Eritrea”. In case of US citizens having a foreign bank account or financial assets that exceed 10,000 US dollars at any time during the ongoing calendar year then an ‘F-Bar’ form is required to be filed.
Income taxation in the United States
This is one of the most familiar and important types of direct tax. After receiving their income, individuals are required to pay taxes to the federal and state. Taxation is basically a tax return by tax residents.
Who are the tax residents?
All the US citizens plus the green card holders or someone present in the US for some specific period that will make a person qualify to be a resident categorized as tax residents. And therefore, every person who is a tax resident needs to file a tax return to the government.
The United States (US) has a progressive tax system, which is based on the fundamental principle of “Earn High Pay High” wherein if you earn high you have to pay higher taxes, keeping in mind the objective that someone with lower income should be subjected to pay lesser tax compared to higher-income earning person.
The Internal Revenue Service (IRS) allows a standard deduction for certain taxpayers that has to be chosen. This conceptually means that a specific amount will be reduced from the income you are taxed and not the tax that will be paid to the government. This deduction is not available to all. It is not constant for everyone and varies according to one’s filing status for instance when some taxpayer claims you as dependent or the person is 65 or older and/or blind.
Tax credits are distinguished from deductions, the difference seems to be subtle but tax credits are going to actually reduce the tax dollars that are due and owed to the government rather than reducing the actual income.
There are other taxes as well such as corporate income tax (CIT) which is levied by federal and state governments on corporations or business houses. A corporation falls into two categories basically being C corporation & S corporation which is discussed ahead. The payroll taxes are taxes paid on the wages and salaries of employees. Similarly, there are Capital Gains Taxes, generally these are levied on Capital assets which include everything owned and used for personal purposes or investment e.g., stocks, bonds, homes, etc. These are the basic categories of taxes on the income that you earn:
Types of Income Tax Return/ Tax Form
Taxpayers are needed to fill an ITR (income tax return) form giving their details of particulars like income earned and tax applicable on that income and then submit it to the income tax department. All U.S. tax returns are submitted to the Internal Revenue Service (IRS), the federal tax authority in the U.S.
Form 1040 – Individual Tax Returns
Who and when should be filed?
This form is filled by the individuals who are deemed a resident of the United States for tax purposes and is one of the types to report taxable income. It is required to be filled if the income crosses a threshold limit to determine whether additional taxes are owed or whether the filer will receive a tax refund. The filing modalities that one needs to know that it can be filed by the paper where you simply fill the form and send it to the IRS. It can also be done through the internet. There are also several variants available for Form 1040 which are Form 1040-NR for non-resident aliens, Form 1040-SR for taxpayers who are 65 years or older, and Form 1040-X which is used to make corrections on form 1040. Now, there are ‘5 filing statuses’ for individuals, first being single, the other is head of household, the third being married filing jointly, the fourth is married filing separately and the last is qualified widow(er). Every individual filer who earns a certain amount of income must file this type of tax return.
Form 1041 – Estate and Trust
Who must file?
This form is filed by a fiduciary of an estate and/or a trust. Here the fiduciary is the trustee of a trust or an executor, administrator, personal representative, or person in possession of a property of the decedent’s estate (e.g., savings accounts, stocks, bonds). Schedule K-1 (Form 1041) is an official IRS form used to report a beneficiary’s share of an estate or trust. Further like 1040, it is also filled by paper or online. One can choose the accounting method such as cash or accrual, while preparing the tax return. Income Tax Return for Estates and Trusts is required if the estate generates more than $600 in annual gross income in case of it being of a resident person but if it is non-resident, there is a need for form to be filed regardless of how much income is reported.
Form 1065- Partnerships
It is filed by domestic as well as foreign partnerships. Like Form 1040 or 1041, it can also be filled by paper or in online mode.
IRS defines a partnership as two or more people who carry on a trade or business together. It gives the IRS details of the company’s financial status for the year. Along with Form 1065, the partnership must also fill Schedule K-1. This schedule identifies the percentage share of gains and losses assigned to each partner. Taking into consideration the accounting methods, one can go for the cash, accrual, or hybrid accounting methods by filing a tax return.
Form 1120 – Corporations
All domestic corporations including corporations in bankruptcy must file an income tax return whether or not they have taxable income. It can be filed through paper or online or both. Permissible accounting methods include cash, accrual, hybrid, which clearly reflects the income and one can use it consistently. C corps (standard corporation under IRS rules) are separately taxable entities and file a corporate tax return under Form 1120. In the instances where the business houses have distributed dividends, they may face double taxation as they are then considered personal taxable income.
Form 1120-S – S Corporation
A corporation or other entity must file Form 1120-S if
it elected to be an S corporation;
the IRS accepted the election, and
The election remains in effect.
S corporation is a corporation that has elected a special tax status with the IRS and therefore has some tax advantages and is usually the one filling this form. This business structure allows a corporation to pass corporate income, losses, deductions, and credits through to shareholders for federal tax purposes.
Accounting methods include cash, accrual, hybrid.
Therefore based on the above observations for the purpose of filing an income tax return, one should see to which of the categories it belongs.
Now here are few things you need to know before you begin filing:
Federal and state taxes must be filed each year on or about April 15 for income earned in the US during the previous calendar year.
Your tax status may be different from your immigration status in the US. The IRS does consider you a resident if you have been living in the US for five calendar years. It is called a substantial process. You can visit the IRS website to know whether you fulfil the criteria for the substantial process.
The federal or state government may withhold the taxes from your paycheck and you can determine the amount of taxes to be withheld but if you have underpaid your taxes you will need to pay the amount you owe to the IRS.
Beware of scams, no government agency or US law enforcement agencies such as the IRS or FBI will ever call you and demand money from you.
Conclusion
As an overall conclusion, I would say that filing taxes in the United States is in no way simple by their design and there are a plethora of forms to fill and additional attachments that you may have to make. Unlike India which has a Central taxation system, the US has separate mechanisms for federal and state. There is a statement by the IRS saying that an average taxpayer spends 12 hours working on it and ends up paying an average of 230 dollars to get the paperwork filed. When you look at tax structures from around the globe the process is even simpler in places like Belgium, Spain and Denmark. IRS claims that if the filer knows how to navigate the tax code, then the forms in schedules are actually designed to help and save money. Paying tax essentially through a defined tax code is not there to harm anyone. It is for the filer to go through over the course of a year and make sure that their money is spent where it is resourceful and reduces their ‘s liabilities.
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A contract can be verbal or written. A verbal contract or an oral agreement is uncommon. A tacit agreement is one which is comprehended from the parties’ behaviour, even in the absence of an exchange of words, through the surrounding circumstances and these circumstances explicitly specify the agreement. A contact can be implied in two different ways and we will learn more about it in the rest of the article.
What are implied contracts?
Regardless of whether it is verbal or unwritten, an implied contract is a legally binding agreement which is simply based on the conduct of the parties involved, or the circumstances surrounding them. Contrary to the more common form of express contract, which is usually a written agreement, implied contracts are generally uncommon. Instead, they tend to be oral agreements. A tacit agreement can be inferred from the parties’ behavior or surrounding circumstances, even in the absence of an exchange of words. No explicit words are exchanged – either orally or in writing – that explicitly specify the agreement. As a general example, taking a benefit from another party is similar to taking advantage of another party, knowing that the other party expects to be paid for the service provided. As with express contracts, implied contracts are legitimate and enforceable. Due to the lack of expressed terms, implied contracts can sometimes be difficult to enforce. Additionally, in many jurisdictions, if a contract, to be enforceable, must have a written contract, such as a land sale or a contract with a very high value.
Illustrations of an implied contract:
These are very simple illustrations of an implied contract which will portray how an implied contract comes into existence –
If a customer enters a restaurant and orders food, for example, an implied contract is created. The restaurant owner is obligated to serve the food, and the customer is obligated to pay the prices listed on the menu for it.
A teenager offers to walk a neighbor’s dog and is rewarded with two movie tickets. On three subsequent occasions, the teenager comes over to walk the dog and is given two movie tickets. But on the last occasion, the neighbor simply fails to produce the movie tickets. The teenager has a case for claiming that the neighbor created an implied-in-fact contract by regularly producing movie tickets in return for dog-walking services. It is a reasonable assumption.
Implied-in-Law
In order to enforce implied contracts, the law has to rely on a fundamental principle of fairness – the belief that no party should benefit from another without reimbursing the party who provided it.
A contract can be implied in two different ways. In the first case, there is an implied-in-law contract. In such cases, circumstances, rather than the acts of the parties involved, determine the terms of the contract.
Usually, courts recognize implied-in-law contracts in instances where one party would otherwise unjustly enrich themselves at the expense of another. This type of contract is distinguished from other types by the fact that it is recognized even in situations where neither party was aware of its existence.
Implied-in-Fact
The implied-in-fact form of contract is the other form of implied contract. Implied contracts can usually be inferred because of the behavior of the parties that shows they have tacitly understood that each party is obligated to perform whatever is specified under the agreement.
Implied-in-fact contracts are comparable to express contracts in their characteristics. Both parties intend to enter into a contract based on an offer and an acceptance by the other party, and with some form of consideration in place. Rather than being stated orally or in writing, implied-in-fact contracts emerge from the actions of the parties instead. Implied-in-fact contracts normally reflect agreements made in the past.
What are express contracts?
A contract that is expressly stated and binding to both parties is one that is agreed to prior to its formation. It may either be an oral contract or a written contract. Offers and unconditional acceptance must be clearly conveyed, and the contents of the offer should be easy-to-understand.
Contrary to implied contracts, express contracts present the terms distinctly and precisely and rely on them rather than on parties’ behavior, actions, or apparent intentions. It should be noted that express contracts specify certain specifics. For instance, the quantity of products to be delivered or the service to be provided should be specified. If possible, they should also mention the exact time the transaction will take place so that there are no ambiguities or vagueness. A law does not permit any substitutes for the express terms of a contract, so if there is an express contract in place, there will not be another implied contract covering the same situation.
Validity of an Express Contract
To enforce the validity of an express contract, both of the following conditions must be met:
It is required to accept the contract in its entirety; it must be expropriated exactly as provided in the contract offer. It is not acceptance of the express contract to amend or otherwise alter the agreement, but merely a counter-offer.
It must either be an exchange of goods or services of value or otherwise both parties will suffer a loss. Thus, they must take appropriate measures to fulfil the contract terms in order to be rewarded or compensated for their losses.
What are quasi contracts?
Indian Contract Act specifies certain obligations that are not technically contracts, as the contract may lack one or more of the elements, but can nevertheless be enforced in court. The obligation in question is referred to as a quasi-contractual obligation. In Chapter V of the Indian Contract Act, 1872, Sections 68 to 72 (each discussed separately) describe each of them.
As a rule of thumb, quasi-contracts are based on the principle of “Nemo debet locupletari ex aliena jactura”, which is “No man should profit from the loss of another man”. The principle of unjust enrichment applies to the liability of quasi-contractual obligations. A fundamental principle of this idea is that no one should reap an unjust benefit at the expense of another. The principle dictates that no one should gain anything unjustly when the thing he gains would mean the loss of something else. They do not stem from an offer and their acceptance, that is, from a contract between parties. On the contrary, they are grounded more in the principles of justice and equity, as well as in a good conscience.
Important points of differentiation amongst the three kinds of contracts
(a) Meaning
– An implied contract can be defined as a contract in which a proposal and acceptance are expressed nonverbally, i.e. through other means. It may be understood as a contract which is assumed or believed to exist between the parties through implication. In other words, when the parties’ conduct shows an intent to enter into an agreement, it is possible for that contract to be implied even when there is no formal written or oral contract. Implied contracts are generally just as valid as express contracts.
– Express contracts are made by written or oral agreement between the two parties. Written contracts are preferred with many types of business contracts, as they offer the most legal protection for both parties. Business contracts must sometimes be in writing, such as with franchise agreements, sales agreements or lease agreements. An express contract is when the terms of a contract are verbally communicated, such as the proposal and acceptance leading to an enforceable agreement. This is a contract in which the terms are communicated verbally between the parties involved.
-Despite the fact that a quasi-contract can function to achieve the same results as a contract, it isn’t inherently a contract in the traditional sense. Rather, a quasi-contract is a document created by a court to reduce unjust enrichment. The use of quasi-contracts is normally employed where the absence of an express or implied contract has a potentially unjust result. A quasi-contract allows a plaintiff to recover the benefit conferred on the defendant who would otherwise be unable to receive it.
(b) Formation and execution
-In an implied contract, the parties concerned create a contract through their actions or conduct. In an express contract, which can be written or oral, the parties sign a contract consisting of words that can be regarded as express. In both the types of contract, there is always agreement between the parties. Contractually derived rights, including rights in rem and in personam, arise from the performance of the contract.
-Quasi-contracts do not entail an agreement between the parties. Quasi-contracts do not involve consent between the parties. The liability of the quasi-contract exists independently of the agreement and rests on the legal principles of equity, justice, and good conscience. It is a legal requirement. In other words, it is not created by the operation of the contract. The statement is true in personam. Therefore, it can be used only against a single individual and not against the whole world.
(c) Illustration
-An example of an implied contract is receiving cash from an automated teller machine. Purchasing a product means it must perform the function it is intended to perform. Manufacturers and sellers are liable for damages if a refrigerator fails to keep food cool, or if a warranty is not honoured.
-Among the examples of express contracts are a Lease Agreement or a Trust Agreement.
-In case of a quasi contract, A and B enter a contract under which A agrees to deliver a television set at B’s residence and B promises to pay Rs. 15,000 after consuming the commodity. However, A erroneously delivers a basket of fruits at C’s residence instead of B’s. When C gets home he assumes that the television set is a birthday gift and consumes them. Although there is no contract between A and C, the Court treats this as a Quasi-contract and orders C to either return the television set or pay A.
Conclusion
There is a significant difference between the three types of contracts mostly in the manner in which an order is communicated and the type of evidence required for their enforceability. As the name suggests, express contracts have explicitly spelled out the terms and conditions of a deal. An implied contract differs from this, because it is a contract that is presumed to exist as a result of the behaviour of the parties. Contracts and quasi contracts are fundamentally different. Contracts are not obligatory, but are obligations imposed by the law, by which one is prevented from exploiting another’s position. The Indian Contract Act of 1872 covers these types of obligations under Chapter V, titled, ‘of contractual relations’; however, the term ‘quasi-contract’ is not included within that title. There might be a reason for this because the act also informs us that these kinds of obligations are different from real contracts and should not be called quasi-contracts. The principles of equity, justice and good conscience form the foundation of quasi contracts, which require that no one should profit illegally and at the expense of others. The quasi-contract concept is founded on the presumption that the legal requirements cannot override the technical considerations of the contract. There should be compensation to the person receiving a benefit for the trouble and expenses incurred by the other party when something has been done for their benefit without waiting for their consent or other formalities.
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This article is written by Rohan Priyam, a student of Jamia Millia Islamia and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Abstract
In the modern era, the problems related to mental healthcare among children have increased rapidly over the past few years. Section 63 of the Mental Health Act 1983 states that an approved clinician can provide medical treatment irrespective of whether or not a detained patient has the capacity to refuse such treatment during childhood, sound mental health is every bit as important as physical health for achieving developmental milestones. India is one of the countries in the world where the suicide rates are the highest. It helps children with their emotional well being and social skills. But during the times of COVID-19 the mental health of the children have been badly affected as it brought grief, fear, uncertainty, social isolation, increased screen time, and parental which have made them like zombies and has taken away their beautiful smiles and happiness. India has the potential to become World Superpower as it has the most youthful population in the world, but during the times of COVID-19 there has been great depression in terms of children mental health care in the country. We will try to know the importance of mental health issues among the children like Autism, Depression, Stress, Anxiety, Social Isolation etc. and will study in depth why issue of mental health care is a need for an hour among children, what policies should be adopted so as to improve the status and create awareness related to mental health care and most importantly we will be comparing India’s scenario with different nations in terms of its achievements and failure regarding children’s mental health during the times of COVID-19 .
Introduction
Meaning of mental health
First of all we need to understand the meaning of mental health. Mental Health basically means a person’s condition with regard to their psychological and emotional well being and helps in determining how an individual feels and acts or how he makes healthy choices does. Mental health is important at every stage of life, from childhood and adolescence through adulthood. Some of the main groups of mental disorders are:
Mood disorders (such as depression or bipolar disorder);
Anxiety disorders;
Personality disorders;
Psychotic disorders (such as schizophrenia);
Eating disorders;
Trauma-related disorders (such as post-traumatic stress disorder);
Substance abuse disorders.
“In Section 115(1) notwithstanding anything contained in Section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said code. Section 1 of the Mental Health Act defines mental disorders, as defined by the Act if they are to be compulsorily detained using the Act. The Mental Health Act 1983 has been amended by the Mental Health Act 2007 (but is still termed the Mental Health Act 1983).
History of mental disorder in India
Witches were the term which was used to refer to the ‘mentally ill’ people who were considered evil and all forms of abnormal behavior were believed to be acts of the ‘devil’ i.e. ‘Against God’ till about the 17th Century. The starting of the ‘mental hygiene’ movement resulted in the light the treatment meted to insane or mad people in asylums resulting in a strong reaction to the plights of the mentally ill.
Ayurveda
Bhuta Vidya was a designated Psychiatry which was attributed to the sudden fear or association with the ill influence of certain mythological gods or demons. In various types of literature mental disorders are being represented in Ancient India. Provoked humours like Vatonmad, Pittonmad, and Kaphonmand were thought to be the angiogenesis of these disorders. The description of personality is to be in terms of Sathvik, Rajasik, and Tamasik representing intellectual and moral, emotional and passionate and impulsive respectively and Tamsik is more or less near mental sub normality or angry. Treatment of mental disorders mainly included psychotherapy, physiotherapy, shock, drug treatment, hypnotism, and religious discourses by Sages.
Unani System
Seven types of mental disorders were described by Najabuddin Unhammad (1222 A.D.) namely-
Sauda-a-tabee (Schizophrenia);
Muree Sauda (Depression);
Ishk (Delusion of love);
Nisyan (Organic mental disorder);
Haziyan (Paranoid state);
Malikkholia-a-maraki (Delirium).
In Unani System, Psychotherapy was known as Ilaj-I-Nafsani in Unani medicine.
Siddha System
Yoga and Tapas as well as medicine are the things where Siddhis have achieved results and also ‘Siddhi’ means achievement. Appropriate treatment methods are described by Sage ‘Agatsya’ one of the 18 Siddhas who has contributed greatly to the Siddha System of medicine of the South. He formulated a treatise of mental diseases called as ‘Agastiyar Kirigai Nool’.
Revolutionary in Psychiatry
The 3 major revolutions had taken place in the history of Psychiatry if we look at its present status. Sin and witchcraft are responsible for mental illness and the mentally ill who were chained in jails and asylum was the common belief when the First Revolution occurred. In the part of the society, they were considered as outcastes. Psychiatric disorders were explained in the second revolution which was the advent of psychiatric disorders. The integration of mental healthcare was the result of the development of community Psychiatry which resulted in the third revolution.
Mental illness to mental health: Indian perspective
One of the earliest Indian Psychiatrists Govindswamy in 1948 explained the importance of health. He gave 3 objectives of mental health-
Regaining of the health of a mentally ill person;
Prevention of mental illness in a vulnerable individual;
Protection and development at all levels of human society of secure, affectionate, and satisfying human relationships and in the reduction of hostile tensions in persons and groups.
The concept of Therapeutic Community was introduced by Maxwell Jones in 1953 and occupational therapy, recreational facilities, outdoor games, and picnics were some of the recreational activities which were started in a mental hospital as well as improved their conditions. Many hospitals were established for mentally ill people during the reign of King Ashoka. There are inscriptions on the walls at the Temple of Lord Venkateshwara at Tirumukkudal, Chingleput District in Tamil Nadu during the Chola Empire. Sri Veera Cholaeshwara Hospital was the name given to the hospital which contained 15 beds.
Maulana Fazulur-Lah-Hakim an Indian physician was in charge of the first Indian Mental Asylum I.e. Mandu Hospital opened by Mahmood Khilji at Dhar MP;
In approximately 1750 AD, Bombay Asylum was built in Modern India, which was followed up in the year 1794 where a Private Lunatic Asylum was opened at Kilpauk, Madras. The Central Mental Hospital Yerwada Pune was opened in 1889;
At Bangalore, the All India Institute Mental Health was set up in 1954 on the recommendation of the Bhore Committee (in 1946) which later on became the National Institute of Mental Health and Neurosciences in 1974.
The Department of Psychiatry was set up in 1975 where Mental Health Unit (CMHU) was started on several recommendations by an expert committee of WHO in 1974. All the historical progress was made in the field of Psychiatry in India when for short-term training of primary care personal, a Rural Health Center was inaugurated in December 1976 at Sakalwar after all these developments.
General viewpoint
India, the land of great opportunities, the most youthful country in the world and most importantly having the best minds in the world is facing problems related to mental healthcare among the children in the world. Children form the heart and soul of society and make the people around them happy with their everlasting smiles, the surroundings are echoed with children singing rhymes, poems, having the everlasting smile on their faces but since 1.5 years these smiles, these rhymes have been crushed under the influence of COVID-19, the pandemic which has taken away the smiles of millions of citizens around the world, where there is constant fear whether they would survive or not and most importantly many other negative vibes that have been associated with COVID-19 especially children’s mental health during the times of COVID-19 in India. The nationwide lockdown has affected the holistic and wholesome development among the children of all age groups because of which it has resulted in mental disorders, anxiety, stress, depression, loss of appetite, loneliness, etc Section 19 of the Mental Health Act 1983 and Regulations made under it enable a patient who is detained in hospital to be transferred to another hospital and to be detained in that hospital on the same basis. Section 21 extends the powers to transfer an accused to a mental health facility and their return to court to an authorized justice overseeing a bail hearing, while section 22 stipulates how an accused under the age of 18 can be transferred to a facility or return to court under these powers.
The Mental Healthcare problem is the biggest cause of the problem from which Indian children suffer according to the status of Child and Adolescent Mental Health in India by NCBI. A study which was conducted in Lucknow showed the prevalence of child and adolescent mental disorders as 12.1%, whereas disease-specific prevalence was 4.16% for nocturnal enuresis, 2.38% for pica, 1.78% for conduct disorders, and 1.26% for developmental disorders. And the similar study which was conducted in Bangalore as well showed a prevalence of 12.5% while the rate was 12.4% in rural areas, 10.8% in slums, and 13.9% (highest) in urban areas of the city. Report of prevalence of child and adolescent mental disorders varying from 1.06% to 5.84% in Rural Areas, 0.8% to 29.4% in urban areas and 12.5% to 16.5% were shown in several studies which were in both Rural as well as Urban areas conducted at a community level .
Statistics on children’s mental healthcare in India during Covid-19
UNICEF report on the mental health impact of Covid-19 in children and young people
Compared to an average of 83 percent for 21 countries, UNICEF Survey across 21 countries it was seen that young people in India said that it is good to seek support for mental health problems, which was only 41 percent among the total respondents.
Around 14 percent of 15 to 24 years old in India or 1 in 7 reported often feeling depressed or having little interest in doing things. As low as one in ten in Ethiopia and Japan, and from almost one in three in Cameroon, one in seven in India and Bangladesh was the pattern which was shown by the survey findings which is previewed in the State of World’s Children Report 2021.
There were two respondents, who were basically from the student’s category explained how the pandemic had interrupted their schooling and impacted their education and career aspirations making them angry and depressed during a case study. Theatre artist and career in medicine are the two professions which these children want to pursue in the future. People who are diagnosed with mental disorders are more than 1 in 7 adolescents in the age group of 10-19 according to the latest available estimates. The highest number of cases was recorded in South Asia among the adolescent group where mental disorders are mostly undiagnosed and hesitant in seeking help or treatment. 80-90 percent has not sought support, in 2019 even before the pandemic at least 50 million children in India were affected by health issues, according to the Indian Journal of Psychiatry.
The analysis was conducted by an NGO, Child Rights and You (CRY). The data has shown how child protection was comprised during the lockdown.
India’s failure in handling child’s mental health care during Covid-19
Crimes increased by 381%
In one decade, there has been a 381 percent increase.
Top five states
Among states, Madhya Pradesh recorded the maximum number of cases (13.2 percent), followed by Uttar Pradesh with 11.8 percent, Maharashtra (11.1 percent), West Bengal (7.9 percent), and Bihar (5.1 percent).
West Bengal, saw a 63 percent increase, replacing Delhi which topped the list in 2019.
Increase in child marriage cases
With 785 child marriage cases, there has been a rapid increase in child marriages where a 50 percent increase has been recorded under the prohibition of the Child Marriage Act. Numbers have jumped from 46 cases between November 2019 and March 2020 to 117 cases in the period of April-June and such a sorry state in terms of child marriage has been recorded in the heart of India i.e. Madhya Pradesh. The number increased to 58, during the first three months of the lockdown in the neighboring state of Chhattisgarh.
Cyber and domestic problems
During the lockdown period, in the year 2020 92,000 calls were received on India’s children helpline number which was mostly related to child abuse in the country. An increase in cybercrimes, cyberbullying especially in the urban areas of Delhi, Mumbai, Kolkata, Chennai, Bangalore, Jaipur, Hyderabad, Lucknow, etc adds further woes and makes children addicted to mobile phones and vulnerable to cyberbullying, cyber crimes, etc. Most of the children are addicted to watching pornography on mobile phones because of this pandemic.
Even before the official restrictions kicked, in India there had been a 20% jump in consuming porn content according to data and according to Reports conducted by PORNHUB, the world’s biggest porn site, a 95% spike was reported in India to adult sites during the lockdown. Porn Hub Statistics showed an immediate jump of 40 percent in France when the country had its official lockdown period set in on March 17. A similar picture played out in Germany where the official lockdown date of March 22 coincided with a 25 percent increase in traffic to adult sites. Italy was the worst-hit nation in the world outside China in early March. There has been a 55 percent hike in consumption of adult content during March 9 in the country.
Child labour
Since 2016, according to the report which was conjointly prepared by International Labor Organization as well as the UNICEF, there has been significant rise in the number of children 5 to 11 years in terms of child labor and the number of children who are of age group between 5 to 17 years in hazardous working place, it has been noticed that their working environment is quite hazardous to their health, safety or morals which rose from 6.5 million to 79 million respectively.
70 percent of child labor (112) are engaged in the agricultural sector, followed by 20 percent in services (31.4 million) and 10 percent in the industry (16.5 million).
Children aged 12 to 14 years with regards to child labor are out of school and nearly 28 percent of children aged 4 to 11 years and 35 percent of children aged 12 to 14 years respectively are engaged in child labor. The prevalence of child labor in rural areas (14 percent) is close to three times higher than in urban areas (5 percent).
The menstrual problem among girl children and problems related to malnutrition
There are other challenges as well such as menstrual hygiene, lack of sanitary pads among the girl child, and vaginal diseases related to them.
18 years old girl child group reported an unmet need for sanitary pads and it was prevalent among 58 percent. This was according to the survey which was related to menstrual hygiene and girl child in India in 2020 in three states.
Similar surveys have been conducted in various parts of the country and the conclusion which aroused and came into the limelight was as follows-
They were unable to use sanitary napkins during the pandemic, resorted to unhygienic practices, which could lead to alarming consequences such as toxic shock syndrome, reproductive tract infections (RTI), and vaginal diseases.
Beyond buffer and green zones, the provision of services through Adolescent Friendly Health Clinics (AFHC’s) under the National Adolescent Program varied across containment during the lockdown.
There will be 410,413 and 392,886 additional cases of underweight and wasting respectively, 23 percent and 24 percent adolescents (5-9 years) and (10-19 years) age group respectively were considered thin for their age (BMI for age -2SD) according to the statistics.
Depletion in nutrition level
In developing countries like India, while formulating policy responses to Covid-19, the report which was prepared by Global Nutrition in 2020 had taken cognizance of the grave economic crisis due to COVID-19. Inequalities in accessing food and healthcare in India and food supply and healthcare systems for the poor were the main emphasis of this policy.
“School Closures, mobility restrictions to contain the spread of the pandemic and there has been a bad impact on the livelihoods, household, economic and security of marginalized families and also many other problems. Therefore, it was highly likely that it contributed to increasing children’s vulnerabilities to child labor, child marriage, child trafficking, as well as cases of gender-based violence,(CRY NGO FOUNDATION) India has spent only 0.05 percent of its health budget annually on mental health, according to Indian Journal of Psychiatry 2017. Diagnosed mental disorders, including ADHD, anxiety, autism, bipolar disorder, conduct disorder, depression, eating disorders, intellectual disability, and schizophrenia can harm children and young people’s health, education, life outcomes, and earnings. These problems have badly affected mental health as while the impact on children’s lives is incalculable, according to the World Health Organization, the Economic loss due to mental conditions between 2012-2030 is estimated to be USD 1.03 trillion in India, according to WHO 2020.
National Crime Record Bureau
In a single year a total of 1, 28,531 were being reported in-country, and statistics are really not good for a country like India.
Poor implementation of e-learning program
1.7 billion Students were out of school, which is really a shocking fact around the world according to some reports. The school-going children have faced the most difficult problems that are affected by the pandemic among all the sections of society. The proper, efficient, education with direction and most importantly valuable and practical under these circumstances is a need of an hour in the pandemic stricken world. E-learning was the possible solution that the whole world came up with and where teachers teach the students online and give important notes, lectures, and revision classes, etc which help in the holistic and wholesome development of the children, the teachers would be able to teach the syllabus according to the syllabus and many other benefits that can arise but all seems to be in vain due to the following reasons-
According to UNESCO, to combat problems which are related to mental stress, anxiety, depression, removing the typical stereotype mindset that the school environment can never come back, etc. Over 100 countries have implemented nearly 90% of the world’s student population e-leaning which was a very good initiative but exceptions are always there like in the case of India, the benefits that should be enjoyed by the e-learning platforms by each and every section of the society is not circulated well and hence most of the students are facing the problems in the country. There are so many problems related to online classes like there are regions in India where there is no proper access of the net services and thus they cannot learn the basic and important topics which are being taught by the teachers and hence these lead to more tensions, anxiety, stress, unnecessary pressure of competition, sleeping problems, weakness, tiredness, etc which is not good for the country like India.
E-Learning is not up to the mark. Village students, students living in remote areas, girl students are the worst sufferers of all. Students are bearing the brunt of both the pandemic as well as the online classes thus it is causing more harm than the benefits which makes them angry, tired, sad, underconfident, fatigued, loss of appetite, etc.
Millions of children are out of school according to World Bank Report. Acknowledging this impact on girls, “Girls globally have less access to the use of internet and cell-phone in comparison to boys”. This statement was given by the National Human Rights Commissioner for Human Rights which is really shameful for the whole world. Teachers and students should be introduced to the offline e-learning platform to supplement the normal classroom teaching and learning process so that students who do not have the access to the internet can benefit. Between 2020-2021, over 286 million children up to grade 6 were out of school in India according to Data from UNESCO. Digital classrooms could not be accessed by 60 percent of students; the education could not be completed by them according to UNICEF’s rapid assessment in 2021.
The poor condition of children’s mental health care
The disease burden in India due to mental disorders increased from 2.5% in 1990 to 4.7% in 2017 in terms of DALY’s (Disability Adjusted Life Years) thus the leading contributor to YLD’s (Years Lived with Disability). It resulted in a contribution to 14.5% of all YLD’s in the country (Indian State-Level Disease Burden Initiative 2017) according to the study by India State-Level Disease Burden Initiative. Suicide was found to be highest among the women in the country as well as depression, eating disorders, and anxiety and most importantly they were the most prevalent disorders in the country. During the pandemic and post-pandemic, the mental health issues among the age group less than 18 years of age cannot be neglected which is forty-one percent of India’s population. These effects are not limited to health and well-being but extend to many dimensions of children’s lives, their education, safety, and poverty (UNICEF 2020).
Children’s mental healthcare has been under pathetic situation and proper mental counseling and webinars which should be conducted in order to have the proper mental health care and encouragement among the children in order to participate in various activities such as sports fest, educational fests, child’s interaction with their peer groups, teacher-children interaction and many other benefits such as missing basic nutrients, loneliness, being distant from playgrounds, overuse of the mobile phones, being mentally, emotionally, physically, spiritually exhausted are some of the disadvantages which are being faced by the children because of which it has raised concerns over the policies of the government related to mental health care issues handling among the children in India.
Mishandling of situation during the third wave of covid-19
Another major problem that happened during the period of April-May was related to the deaths of family members of these children. As we all know that during this period a third wave of the corona virus came and because of that many children lost their family members due to lack of oxygen, emergency wards, emergency services that could not be provided on time, and many other problems because of which many children in India lost their mothers, fathers, grandfathers, grandmothers and other family members during the third wave of corona virus. These events affected their mental, as well as psychological health and hence their thinking abilities, were badly affected during the whole COVID-19 pandemic.
India and the world on mental health care among children
Countries such as France, India, the USA, China, the UK, Brazil, Russia, Italy, etc have been badly affected by the COVID-19 Pandemic and the daily cases in these countries are daily. Though significant steps have been taken by these countries still more work needs to be done especially related to mental healthcare among the children in these countries as they are the torchbearers of development and progress in these countries. Also, there has been a rise in the crimes such as robbery, murder, bullying, firearms, etc which has led to deterioration in the quality of crime control and most of the children have also lost their lives in this pandemic. Further, there has been no source of mental counseling in these countries which has led to a rapid rise in the mental disability problems in these countries. These countries largely contribute in the military, road, and transportation, shipping, aerospace, maintaining education, and even health sector but when it comes to handling the pandemic and mental healthcare among the children these countries have failed miserably, and most importantly the question that if the third wave comes in these countries wills they be able to it? Such questions give us mixed signals that a country like India which boasts its achievements in the UN and always comes first with topics related to Terrorism, Crime Records, Criticizing Pakistan on its Terror Funding Activities, Border Issues, Sports and Literature, and many other things. But will it raise its voice against the deteriorating children’s mental healthcare during the COVID-19? That’s a matter of concern among all the citizens of the country because, in the past, India has failed on its part related to Conventions and Agreements like Basel Convention, Kyoto Protocol, Paris Agreement, and many others where India has failed on its and this the new challenge which has to arise in front of India. So how will India handle the situation is the biggest concern among all the citizens of the country whether it will raise the same issue in the UN and whether the problem would be resolved as soon as possible.
India’s achievements in terms of handling mental healthcare among children during covid-19
Though India has failed miserably in handling the mental healthcare situation among children during the pandemic, it has also gained some achievements as well. The government imposed a much needed nationwide lockdown in the country in March 2020 so that the fatality rates due to COVID-19 becomes less and hence the bold step which was taken proved to be worthy as it saved millions of lives around the country otherwise we would have seen people dying on the roads on the roads in lakhs or crores if lockdown hadn’t been imposed and would have caused further distress, anxiety, mental exhaustion, etc. Though the children were affected mentally and psychologically, the lockdown was a need of an hour otherwise we would have seen deaths of these innocent souls on the roads of many Indian cities such as Lucknow, Delhi, Mumbai, Chennai, Bangalore, Hyderabad, Nagpur, Jaipur, Pune, etc cities of India. One of the biggest achievements that India gained during this nationwide lockdown was cutting the chain of transmission of pandemics.
E-learning platforms
The government also came with the idea of an E-learning Platform where these young students could learn many educational and recreational things which can refresh their minds, their souls and happily lift their moods. Also, these online platforms proved to be worthy for these students as they can learn many online courses, learn hacking and computer programming sitting in their homes, and upgrade their skills, knowledge, language, thinking abilities, etc.
Adequate funding by the government and government mental health program
To deal with the problem of mental illness, The National Mental Health Program was launched by the Government of India (NMHP) in 1982 keeping in view the heavy burden of mental illness in the community and the absolute inadequacy of mental healthcare infrastructure. In 1996, The District Mental Health Program was being added:
Provision of funds
Provision and funding are the most important things to realize the importance of funding in cases related to mental health care among children. The government has done a good part on this where it is given that spending on health by the government is not expenditure but a social investment and a social right. Under the National and District Mental Program, the ongoing activities should be expanded and strengthened continuously. Mental Health Program must be expanded and strengthened in a continuous manner.
The government has done a good job on its part while implementing mental health program which now needs to be more strengthened and responsive manner during the times of COVID-19 in order to achieve a collaborative and sustainable response system.
The Protection of Children Against Sexual Offences Act (2012) (Posco Act)
U/5, 5 (k) of the POSCO Act, children with mental or physical disabilities have been given special consideration where any sexual assault with these children would be considered as an aggravated sexual offense. Special care, protection, and support are provided to a child victim with a mental or physical disability during trial and recording of evidence.
The Right of Children to (Free and Compulsory) Education Act, 2009 (RTE Act)
The RTE Act u/5 2(d) and as amended to 2012 has considered children with disabilities as a disadvantaged group hence have the right to free education Section 17 of the Act focuses on prohibition of physical punishment and mental harassment to the child in the school which is a great step in the direction of mental health care of children in the school. Learning without fear is an essential element in measuring the learning outcomes and overall mental development of children
Child Welfare Committee
The Constitution (for every District of the State) of one or more Child Welfare Committees for exercising the powers and discharge the duties which are conferred on such committee in relation to the child in need of care and protection provided by the Juvenile Justice (Care and Protection of Children) Act 2000
Child Abuse Prevention Program
Sexual, Physical, and Emotional abuse are prevented by school-based activities which is the main aim of the program. Awareness and orientation of parents, sensitization of staff members and workshops for students Information dissemination regarding support system, i.e. NGO, Police, Hospital, etc.
Mental Health Care in a special school
The whole school is included, except the scale of it which is much larger in the infrastructure and facilities at a special school which is similar to the special needs department/ learning center of an inclusive integrated school. The specialized services will, no doubt, be determined by the special population that is unique to each school
Mental health training for faculty and staff;
Information and awareness about ragging/ bullying;
Awareness of deliberate self-harm and suicide prevention activities;
Health fair;
Student health care center;
Peer-to-peer support and mentoring.
Indian Cybercrime Coordination Centre Scheme
An outlay of Rs 415.86 Crore;
To act as a nodal point in the fight against cybercrime;
Identify the research problems/ needs of LEAs and take up R and D activities in forensic tools in collaboration with academia/research institutes within India and abroad;
To prevent misuse of cyber space for furthering the cause of extremist and terrorist groups;
Suggest amendments, if required, in cyber laws to keep pace with fast-changing technologies and International Cooperation;
To coordinate all activities related to the implementation of Mutual Legal Assistance (MLAT) with other countries related to cybercrimes in consultation with the concerned nodal authority in MHA.
National Cybercrime Reporting
Facilitate reporting of all types of cyber crime incidents with a special focus on cyber crime against women and children;
Automated routing to concerned State/UT based on information furnished in the reported incident for appropriate action in accordance with law;
The reported incidents are facilitated to view the status of actions taken regarding complaints.
In August 2019, the Prison Statistics of India (PSI) Report was released by NCRB, which documented 1775 inmate deaths under judicial custody. During the COVID-19 national lockdown from March 25 to April 30, canning and bating which were included in the police action was compiled by the Commonwealth Human Rights Initiative which included a list of 15 fatalities.
Integrated Rural Development Program (IRDP)
Since its inception in 1979, the Integrated Rural Development Program which is one of the largest micro-enterprises in the world has reached 50 million borrowers. The main aim of the program is to raise the incomes of the poor beneficiaries to a level that is above the poverty line by requiring the banks to extend loans to them for the purchase of assets, and by subsidizing 25 to 50 percent of the cost of the assets. Centre and State centrally sponsor the scheme which is being implemented on a 50-50 basis.
The rationale for rural works program
There are under-estimates that have been recorded in NSS Rates of under-employment. If a person had some productive work, a certain quantum of work in three days would actually require only one day for a person where the whole family may do the work. Measurement of employment without prescribing standard work norms is quite hazardous. Secondly, due to lack of perception of employment opportunities, withdrawals from the labour force of those who are usually/currently in the labor force during daily or weekly count are not always voluntary.
Mental Healthcare Act 2017: child and adolescent perspectives
The Mental Healthcare Act 2017 aims to provide mental healthcare services for persons with mental illness. Persons having the right to live life with dignity by not being discriminated against or harassed are ensured by the Act. Right to Protection from cruel, inhuman, and degrading treatment (k) to be protected from all forms of physical, verbal, emotional, and sexual abuse and to promote, protect and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith with incidental thereto. The Act effectively decriminalized attempted suicide which was punishable under Section 309 of the Indian Penal Code. Mental Healthcare Act 2017 superseded Mental Health Act 1987 on 22 May 1987. It basically states the determination of the mental illness which can be determined in accordance with nationally and internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organization) as may be notified by the Central Government. An individual as a person with mental illness unless he is directly in relation with the treatment of the illness is asserted by the Act where the Act clearly mentions no person or authority shall classify the same.
Case laws related to mental health in India
Robert Hejikamp and Anr. Vs Bal Anand World Children Welfare;
Uma Manickam Vs The Inspector of Police;
Bhagwan Vs State ;
Kerala State Legal Services Vs State of Kerala.
Conclusion
After all the above discussions, the possible outcomes and suggestions that can be concluded are as follows:
Child Mental Welfare Mental Health Care Program Schemes in India should be strictly followed by each and every district, rural area, towns and regular research works and statistics should be followed up in relation to the present scenario
Child Atrocities Act should be improved in the country so that no children regardless of which region or area he belongs to should be protected and proper mental health counseling should be organized under this Act.
Organizations such as National Crimes Records Bureau, Interpol, D-Company, etc should collaborate with the doctors of the AIIMS, Maulana Azad Medical College, Psychiatrists, Counselors, etc so that the increasing crime rates in India could be stopped.
Problems related to the Mental Health Care Programs should be improved by webinars, seminars, government organizations, etc.
All the nations of the world should come to one Medical Council in order to tackle the problems related to mental health care among the children in the world. India should be the leading country among all the nations and it should justify its programs related to mental health awareness, acts, and sections which it has made related to mental health care, etc.
Schools should promote the mental awareness week campaign especially for the disadvantaged children, people belonging from poor backgrounds, and many other sections.
Special Care should be taken regarding female child sanitary napkins and vaginal health care programs should be organized to take into consideration the mental health care among the women during the times of COVID-19.
No comparisons should be made between the students related to their academic marks or other achievements especially during these tough times and co-curricular as well as sports activities programs should be organized through webinars at e-learning platforms.
It is important that the children should be reassured by the parents during these tough times, their concerns should have been listened to them and their queries should be answered related to the outbreak. Spending quality time with time is a need of an hour during these tough times.
Managing the child’s anxiety is the prime responsibility of any parent and hence their emotional cues should not be overlooked by them and the parents should not be judgmental when they express their feelings. Their questions should not be avoided by them related to COVID and they should not speak harshly with their children because this can increase fear and anxiety.
Parents should engage with their children in indoor activities where these children get bored. Involving them indoors to cut down the boredom is the greatest solution to make them happy, stress less, have freedom from mental anxiety, depression, sadness, etc.
They should be encouraged to have contact with their friends through video calls or mobile phones because physical meeting is difficult during these tough times and they should also be encouraged to be involved in fun activities, recreational activities, and many other platforms to refresh their minds.
The routine of learning should be encouraged by the parents as the schools are closed and ensuring regular habit of studying would improve their knowledge, skills and hence parents can give them small assignments and can check their progress reports through these assignments and hence should encourage them to inculcate the habit of learning something every day new.
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This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the underlying principles of the Constitution vis a vis how much have the provisions of the Constitution been implemented in the laws of the land. It also states whether the eunuchs are beneficiaries of the Constitution or has the Constitution failed to achieve its purpose.
Table of Contents
Introduction
Article 14 of the Constitution of India provides that the State shall not deny any person equality before the law and equal protection of the laws within the territory of India. Article 15 of the Constitution of India states that the State shall not discriminate against any citizen on the basis only of religion, race, case, sex, place of birth. It also states that there should be no restriction with regard to access to public places. Various social minorities have an accepted place in Indian society but have faced discrimination based on sex. One of the communities is the transgender community, which has a recorded existent since ancient times.
What do we understand by the term eunuch
From ancient times, the human race has approved the existence of only two genders, male and female. But there also exists a third gender which is in minority. They are known as Eunuchs. A eunuch is known as a castrated man or people born with genital abnormalities. Section 1(A) of the Telangana Eunuchs Act, 1919 which was enacted in the Nizam’s dominions states an eunuch shall include all persons of the male sex who admit to being impotent or who appear to be impotent on medical inspection. Over time, there are a wide variety of terms for people who do not identify themselves under the traditional and more known binary divisions of gender. One umbrella term is queer which consists of transgender, bi, lesbian, gay, and intersex. In the case of transsexuals, nature is more psychological than biological, unlike Eunuchs.
The legal position of eunuchs
In the past, most parts of the world had a well-established eunuch culture, especially in West Asia where they are known as hijras, and they held sanctioned positions in royal courts. In India, hijras have a trace of their origins in the myths of Ramayana and the Mahabharata. In the myth of Ramayana where Rama, who was banished from the kingdom for 14 years and had to leave for the forest, asks all his followers of men and women to return to the city. Among his followers, the hijras do not feel bound by this direction and decided to stay with him. Impressed with their devotion, Rama empowered them to confer the blessing on people on auspicious occasions such as childbirth, marriages and inaugural functions. In the myths, the hijras were given out most respect for their presence. Over time, humans have civilized and the position of hijras in India occupies no safe haven, not even in their families where they are protected from the prejudice of the world.
In India, over a hundred years ago, transgenders had terrible lives especially in the reign of the Britishers, where they were treated as criminals under the establishment of the controversial Criminal Tribes Act, 1871. Under this Act, they were forced to register their names and residential addresses in local police stations. The register maintained the names of all eunuchs who were suspected of kidnapping, castrating children or committing any offence under Section 377 in the Indian Penal Code (IPC). It also stated punishment with imprisonment of up to two years or fine for all those who appeared to be dressed as women in a public place or exhibited any activities. This harsh treatment leads to little opportunity to find employment. The Telangana Eunuchs Act, 1919 was a draconian legislation against transgender and queer persons which was enacted for the registration and control of eunuchs. This law empowered the state police to maintain a register of names for eunuchs and accordingly make arrests in cases where persons are found to be singing and dancing or dressing up as women in public places.
Case law
Section 377 of the IPC states unnatural carnal intercourse with any man, woman, or animal. Queen-Empress v. Khairati, (1884) was the first case of the use of Section 377. In this case, the police took a suo moto action without any complaint against Khairati, who was arrested for cross-dressing as a woman and singing with them in her village. The accused was also found to be a habitual sodomite upon medical examination. The Court appreciated the police authorities for keeping a check on these disgusting practices. The defendant, Khairati was not convicted in this case but it is essential to note that the police interaction reflects torture and discrimination against the queer community even today. The excessive police force in order to arbitrarily arrest and torture the queer community is unjust and against the principles of the Constitution.
Constitutional framework
The Constitution of India has not left any stone unturned while considering, creating and conferring the rights on the vulnerable sections of the society such as women, children, elders and disabled persons. However, the rights of eunuchs remain unrecognized and unidentified in the Constitution. Even though international law recognizes the human rights of individuals as indispensable, it fails to recognize the rights of the eunuchs. Further, the judicial precedent has recognized the rights of the transgender in several cases. In the historic judgement of National Legal Service Authority v. Union of India, (2014) (‘NALSA Case’) the Supreme Court declared transgender people as the ‘third gender’ and stated that fundamental rights granted under the Constitution of India are equally applicable to them.
The constitutional validity of Section 377
Section 377 of the IPC was introduced in 1861 during the British reign of India. Anything which is against the order of nature was made illegal according to this Section. However, the Constitution provides various fundamental rights to every citizen of this country and this Section was against the basic principles of Constitutional ideas.
Naz Foundation v. Govt. of National Capital Territory of Delhi, 2010
In Naz Foundation v. Govt. of National Capital Territory of Delhi,(2010) the constitutional validity of Section 377 was challenged on the ground that it is violative of the fundamental rights guaranteed under Article 14, Article 15, Article 19 and Article 21 of the Constitution of India. It also stated that it goes against the spirit of the right to personal liberty and equality before the law and no discrimination can be made on the basis of mere sexual orientation. In the instant case, the Delhi High Court struck down Section 377 to decriminalize a class of sexual relations between consenting adults and intrusion of the state is only applicable if the State was able to establish a compelling interest stated under Article 21 of the Constitution of India. It is stated an essential point that the Indian Constitutional law does not discriminate or permit any misconceptions of who the LGBTQ are. It should be considered that any discrimination is the antithesis of equality and recognition of equality will develop the dignity of every individual in the society. However, the defendant resisted the judgment by stating that no right is an absolute and reasonable restriction on the basis of decency, public morality, public health and social disgust of the act. Thus, the matter was urged before the Supreme Court to restore Section 377.
Suresh Kumar Koushal v. NAZ Foundation, 2014
Inthe case of Suresh Kumar Koushal & Anr. v. NAZ Foundation and Ors, (2014) in which a two-judge Supreme Court bench overruled the Delhi High Court case of Naz Foundation v. Govt. of National Capital Territory of Delhi and restored Section 377 of the IPC, the Apex Court stated that only a minuscule fraction of the country’s population constitute LGBTQ and only a negligible number of persons have been prosecuted under Section 377. The mere possibility of abuse, violence blackmail or torture on sexual minorities especially transgender does not constitute or provide a ground to make it unconstitutional. It stressed that the prevailing conditions should be according to the test of reasonableness and not mere Western experience. Declaring the law unconstitutional is one of the last resorts taken by Courts. Despite this, the Court validated the Section and proceeded to restore it. It was further stressed by the mental health professionals that the existence of this Section causes deprivation of their mental health as they feel that they are criminals and that this status is an essential part of their psychological distress.
Further, in Naz Foundation v. Suresh Kumar Koushal, (2016) the Supreme Court after reviewing the petition and various connected papers to declare Section 377 to be unconstitutional declined not to interfere with its earlier decision held in Suresh Kumar Koushal & Anr. v. NAZ Foundation and Ors, (2014). Subsequently, in Naz Foundation v. Suresh Kumar Koushal, (2016), a three-Judge Bench of the Supreme Court held that all the 8 curative petitions submitted should be placed before a five-judge Constitution Bench. It stated that all these issues raised before the Court are of considerable importance and public interest and on the doctrines of the Constitution.
Navtej Singh Johar v. Union of India, (2018)
In K.S Puttaswamy (Retd.) and Anr. v. Union of India & Ors.,(2017) the Supreme Court held that the Right to Privacy is a fundamental right protected under Article 21 and Part III of the Constitution of India. The judgment also stated that Section 377 directly affects the evolution of the constitutional jurisprudence on the right to privacy. Sexual orientation is an essential attribute of privacy. Discrimination against an individual based on sexual orientation is against the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society should be protected on the same level. Hence, their rights are not “so-called” but are real rights inherent in the doctrines of the Constitution.
Further, in the historic landmark judgment of Navtej Singh Johar v. Union of India, (2018) the Supreme Court unanimously held Section 377 in the IPC to be unconstitutional which criminalised consensual sexual conduct between adults of the same sex. It declares the right to sexuality, the right to sexual autonomy and the right to choose a sexual partner a right under Article 21. It contended that individuals belonging to the LGBT community due to the existence of Section 377 had suffered discrimination and lived under fear of prosecution and persecution and social stigma because of their sexual orientation. It compels the LGBT community to stay in a closet without disclosing their sexual orientation and openly operate as a tool in the hands of the majority to exploit and harass them. They cannot be made a victim of the majority perception. Section 377 cannot be justified on the ground of reasonable restriction under Article 19(2) of the Constitution of India on the grounds of public or social morality. Members of the LGBT community are entitled as par to other citizens to the full range of constitutional rights including liberties protected by the Constitution.
Present scenario
On November 26, 2019, the Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 (hereinafter referred to as the ‘Bill’) for the welfare of the transgender community. It prohibits discrimination against them in employment, education, healthcare, housing and other services. It defines a trans person as someone whose gender does not match the one assigned at birth. However, the trans community rejects the Bill stating that several clauses are violative of their fundamental rights.
The name ‘transgender’ is restrictive in nature and it shows a lack of comprehension of people who do not conform to the gender binary, male or female.
The Bill allows self-perception of gender identity and that each perosn would have to be recognised as ‘transgender’ by issuing a certificate of identity by a district magistrate.
The Bill enforces a minor’s right of residence by compelling them to cohabit with their natal family. However, it has been noticed that the families of trans persons are often the reason for gruesome violence against the trans community thereby leading to separation.
The Bill criminalises begging but it does not offer any reservation for employment and education.
The Bill majorly focuses on transwomen and hijras thereby putting little emphasis on the intersex, queer and transmen.
The community is concerned about the post-implementation effects of this Act. It relies on the National Council for Transgender Persons for effective implementation of the law and provides a genuine representation of the community that the present Act fails to provide. Despite various protests from activists and the queer community, the Bill on August 5, 2019, has been passed. As per protesters, the Act treats trans persons as inferior citizens thereby going against the judgment of the NALSA case which recognises the right to self-determination.
Further, it is noted that the judicial precedents recognise the rights of queer. But still, they are not at par with the rights provided to the heterosexual person. The denial of civil rights as an only heterosexual person is recognized under religious and customary law thereby providing a major setback for the queer. Thus, it is important to educate people about their rights. The government should wipe away its conservative nature and take effective steps to eliminate the stigma, discrimination, torture, and abuse surrounding the queer.
Conclusion
The Eunuchs Act suppresses the right to privacy, dignity, and freedom of transgender persons. Hence, it is necessary to take immediate steps to safeguard the fundamental rights of transgender persons in Telangana. As said by Justice S.K. Kaul that “the old order changeth yielding place to new”. Despite the constitutional recognition of the third gender and the 2019 Bill in place, the trans community in India is still suffering. There is a need to amend various laws of the land to include the constitutional rights of the LGBTQ and provide them equal status in the society in various spheres especially in adoption, marriage, succession, etc.
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This article is written by Dnyaneshwari Patil from RTMNU Babasaheb Ambedkar College of Law, Nagpur. In this article, she discusses the scope and procedure under Indian Bankruptcy Code regarding the moratorium. The extension of the moratorium period and the time limit mentioned under Section 12 of the IBC with the help of several cases.
Table of Contents
Introduction
The Insolvency and Bankruptcy Code, 2016 (IBC) was formulated to consolidate the scattered insolvency procedures. It provides for a speedy resolution and supports the National Company Law Tribunal (NCLT) by creating the functionaries like Resolution Professionals (RP), Information Utilities (IUs), and Insolvency Resolution Professional Agencies (IRAs). Before the enactment of IBC, multiple legislations led to a multiplicity of proceedings and caused grievances to the parties, and sometimes led to evasion of the proceedings. Therefore, it became indispensable to bring all the laws under one umbrella, and thus the Insolvency and Bankruptcy Code 2016 was introduced. Another feature of IBC is its time-bound resolution process. It is mainly concerned with reviving the sick companies within a period of 180 days and also provides a one-time extended period of 90 days. The moratorium period focuses on the benefits of the company and unsecured creditors rather than just secured creditors. The moratorium period’s purpose is to give the debtor a chance to focus on reviving the company from the losses and reconstructing the company. Thus, the Hon’ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank (2017) observed that the intention behind the levying moratorium period was to provide the debtors with some breathing spell in which they could reorganise their business.
Scope of IBC Moratorium
The sole reason the period of moratorium is initiated is to distribute the assets in an equitable way to the creditors and also the debtors. It also has provisions regarding initiation of arbitral claims, breach of contractual obligation, already initiated action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), seeking of debt recovery by banking institutions and violation of fundamental rights which are not only in the context of bankruptcy. The inception of Section 238 has an overriding effect of the IBC on other provisions. Thus in Innoventive Industries vs. ICICI Bank, the Supreme Court held that when there is a direct clash between the state act’s moratorium provision, the moratorium provision under the IBC has the overriding effect due to the non-obstante clause. It is clear from Section 14 and Section 13 of IBC that any action taken under the SARFAESI Act and Recovery of Debt and Bankruptcy Act, 1993 (DRT Act) would be suspended without affecting the limitation period for filing the same.
Regarding the status of the secured creditors, the creditors could relinquish their security and be a part of the liquidation process; however, they will be given higher preference in the distribution or, the secured creditor can refuse to be a part of the liquidation process and enforce its security interest according to the provision of the IBC.
In J.M. Financial Asset Reconstruction Co. v. Indus Finance Ltd (2017), the NCLT declared the moratorium period. Consequently, the secured creditor challenged the staying of the sale of an asset as it was in accordance with the provision of the SARFAESI. The question was whether the IBC provisions were intended to overrule the provisions of the SARFAESI. The NCLT, Mumbai bench, held that the sale was not ultimately concluded as only 25% of the payment was made, and the completion of the sale could not be completed during the moratorium period. Although the creditor would be forced to wait, its right to security would be intact.
Thus, IBC will have the effect notwithstanding anything inconsistent in addition to that, contained in any other law for the time being in force, including D.R.T. Act, 1993; SARFAESI Act, 2002; money suit, etc.
Procedures under IBC
The adjudicating authority declares the moratorium period according to Section 14 of the IBC with the admission of the insolvency application, the same is publicly announced, which contains the last day within which the claims should be made and the information regarding the interim resolution professional. The management of the affairs of the corporate debtor goes to the interim resolution professional who protects and preserves the value of the property of the corporate debtor and manages its operation as a going concern under the direction of the Committee of the Creditors (CoC) appointed under Section 21 of the IBC code. Decisions by this Committee are to be taken by a vote of not less than 75% of the voting share of the financial creditors. Then after considering the feasibility and viability of the plan, the interim resolution professional is given the power under Section 28 of the Code to carry out the resolution process. Thus the interim resolution professional has the broad authority to raise finances, create security interests, etc., subject to the prior approval of the Committee of Creditors. Apart from the major roles of the resolution professionals appointed by the tribunal, one of the other aspects that the resolution professional has to keep in mind is to consider the time factor. Until the company is in the moratorium period, the resolution plan by the resolution professional has to be submitted within the period. However, submitting the resolution plan within such a short period, the resolution professional has to consider several things so that the debtors are brought back to a stable position; therefore it becomes evident that the resolution professional should seek an extension of time to be able to submit the resolution plan. Section 12 of the Code mentions the time limit for completing a corporate debtor’s insolvency and resolution process. One hundred and eighty days are given within which the Corporate Insolvency Resolution Process (CIRP) shall be complete.
Further, as per Regulation 40, the resolution professional may move an application before the adjudicating authority seeking extension of the period described above and which can be extended only if the Adjudicating Authority is satisfied that the subject matter of the case is such that the corporate insolvency resolution process cannot be completed within 180 days, but the extension cannot be for more than 90 days. Further, provided that any extension of the period of corporate insolvency resolution process under Section 12 shall not be granted more than once. Before seeking the extension of time from the tribunal, the resolution professional has to seek permission from the creditor committee by passing the resolution in a meeting of creditors, which hold 66% (before 75%) of voting shares to give consent.
There are instances where the NCLT observed that the resolution process should be completed before the maximum time prescribed. Thus, inSBI vs Jet Airways (India) Ltd.(2019), the NCLT Mumbai bench observed that the corporate debtor being the largest private-sector airline with a vast workforce and serving both domestic and international market, and due to their divulgence in an important sector it pertains to national importance. Hence the NCLT directed the RP and members of CoC to expedite the matter and try to finalise the resolution plan on the fast track mode. They should not wait for the completion of the statutory period of 180/270 days timeline permissible under IBC.
The inherent power of the NCLT to impose a moratorium before the initiation of the CIRP
NUI Pulp and Paper Industries Pvt. Ltd. v. M/s. Roxcel Trading GMBH
In this 2019 case, an operational creditor filed an application under Section 9 against the corporate debtor. At the request of the Corporate Debtor, time was allowed by the Court to file a reply affidavit. However, the Court also passed an interim order restraining the Corporate Debtor and its Directors from alienating, encumbering or creating any third party interest on the assets of the Corporate Debtor, the same was opposed by the appellant, saying that the Adjudicating Authority has no jurisdiction and the power under Rule 11 cannot be exercised. Thus, it was held that the Adjudicating Authority doesn’t need to await hearing of the parties for passing the order of ‘Moratorium’ under Section 14. Therefore, to avoid the misuse of the tribunal process by anyone or for meeting the ends of justice, the adjudicating authority has the inherent power to impose a moratorium and pass such an interim order.
Extension of moratorium period under Section 12 of IBC : case analysis
The application under section 12(2), (3) for extension of the time period
Quantum Limited v. Indus Finance Corporation Limited
In this 2018 case, the question arose whether the application for extension of the time period under Section 12 filed after the expiry of 180 days can be granted? It was held by the NCALT, New Delhi, that there is no provision stipulating that application for the extension of time period be filed within 180 days, including the last day that is the 180th day. The CoC instructs the resolution professional to file an application for such extension, the Adjudication Authority in the interest of justice and to ensure that the resolution process is completed following all the procedures, time should be granted by the Adjudicating Authority who is empowered to extend such period up to 90 days beyond 180th day. The rejection of the application for the extension of the time period was not based on the grounds that the CoC or the resolution professional had not justified their performance during the 180 days; therefore, it was the duty of the Adjudicating Authority to grant extension so that suitable resolution plan could be approved instead of going for liquidation which is a last resort.
Panna Pragati Infrastructure Pvt. Ltd. and Another v. Amit Pareek & Ors.
In this case, the appellant informed the CoC that he desired to file a second resolution plan, which was filed on 14 February 2020, well within the timeline of 180 days. However, it was submitted two days after the submission of the revised plan of a successful resolution applicant. The RP rejected the second revised plan due to the impending expiry of 180 days. Consequently, the appellant filed an application for directing the RP to take on record and consider the revised offer; the Adjudicating Authority rejected the same because the CoC has already approved the Resolution Plan of the highest bidder with 100% voting. Thus, the question arose that when in exceptional circumstances, the timeline prescribed under IBC can be relaxed to allow a prospective resolution applicant to submit a second revised resolution plan? The Court held that the RP was wrong in rejecting the revised plan by the appellant as it was the duty of the RP to present the same before the CoC, considering that the ordinary timeline period of 180 days was still subsisting. Therefore, the contention of the respondent regarding the non-extension of time is not in tune with the law interpreted in “Committee of Creditors ofEssar Steel India Limited v. Satish Kumar Gupta and Ors.” Therefore, the impugned orders were set aside, and the appeal was allowed.
R.P. of SEL Manufacturing Company Ltd. v. Committee of Creditors of SEL Manufacturing Ltd. & Ors.
In this 2019 case, The CIRP was initiated against ‘SEL Manufacturing Company Limited’ (Corporate Debtor). During the pendency of the case, the ‘Promoters’ moved before the High Court and then to the Hon’ble Supreme Court; the matter, for a certain reason, stayed by one or other order passed by both the courts. Therefore, on CoC’s instance, the RP filed an application before the Adjudicating Authority for exclusion of more than 100 days. However, the Adjudicating Authority rejected the prayer and filed the present appeal before the NCLAT, Delhi. It was held that the matter was stayed for about more than one year by both the High Court and Supreme Court through an interim order. Therefore, it is a fit case for exclusion of a certain period under Section 12, or else the impugned order rejecting the period of exclusion might result in ‘Liquidation’. Further, 90 days of exclusion was allowed for completion of the resolution process.
Excluding specific days for the purpose of counting the total period of 180/270 days.
Quinn Logistics India Pvt. Ltd. v. Mack Soft-Tech Pvt. Ltd.
In this 2018 case, the exception was carved out regarding exclusion of certain periods from the counting of the total period of 270 days of resolution process due to some occurrence of unforeseen circumstances or if the facts and circumstances justify exclusion. The exceptions mentioned under orders are:
If the corporate insolvency resolution process is stayed by a court of law or the Adjudicating Authority or the Appellate Tribunal, or the Hon’ble Supreme Court.
If no ‘Resolution Professional’ is functioning for one or another reason during the corporate insolvency resolution process, such as removal.
The period between the date of order of admission/moratorium is passed and the actual date on which the ‘Resolution Professional’ takes charge for completing the corporate insolvency resolution process.
On hearing a case, if an order is reserved by the Adjudicating Authority, the Appellate Tribunal, or the Hon’ble Supreme Court, finally pass an order enabling the ‘Resolution Professional’ to complete the corporate insolvency resolution process.
If the corporate insolvency resolution process is set aside by the Appellate Tribunal or order of the Appellate Tribunal is reversed by the Hon’ble Supreme Court, and the corporate insolvency resolution process is restored.
Any other circumstances which justify the exclusion of a certain period. However, excluding the period, if a further period is allowed, then the total number of days cannot exceed 270 days which is the maximum time limit prescribed under the Code.
Velamur Varadan Anand v. Union Bank of India & Anr.
In this 2018 case, the application was admitted on 16th August 2017. The same was intimated to the RP. However, he took charge on 14th September 2017. Relying on the Quinn logistic Pvt. Ltd. (supra), the NCLAT was directed to exclude the 30 days for the purpose of counting CIRP. Further, it allowed the RP to complete the CIRP by 15th June 2018.
Mr Abhilash Lal & Axis Bank Ltd v. Seven Hill Healthcare Pvt Ltd & Anr.
In this 2017 case, the applicant filed an application for extension/exclusion of the time period of the CIRP as the corporate debtor was being used as a hospital during the COVID times by the government authorities. Due to this, the authorities were not able to proceed to the site for inspection, which is needed for the resolution plans. Therefore, the adjudicating authority held that extension of the time period would benefit the stakeholder instead of going for liquidation. It approved the extension of the period by 90 days.
Sudip Bhattacharya, Resolution Professional of Reliance Naval and Engineering Ltd.
In this appeal, the appellate tribunal upheld the order passed by NCLT, Ahmedabad Bench, which granted 90 days of extension to the RP to complete the CIRP beyond 180 days but declined to exclude the lockdown period of 25th March 2020, till 31st August 2020 on the ground that 90 days period of the extension was still in hand.
The Insolvency and Bankruptcy Code (Amendment) Act, 2019 and the cap on corporate insolvency resolution process
Two provisos were inserted under Section 12(3) of the Code by way of Amendment 2019. It mandated that the CIRP should be concluded within 330 days from the commencement of the insolvency procedure. These 330 days include an ordinary timeline of 180 plus a one-time extension of up to 90 days if granted by the Adjudicating Authority, time taken in legal proceedings in relation to the CIRP of the corporate debtor. However, the Hon’ble Court struck down the term “mandatory” in the Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Ors. (2019). In this, the Court held that the term “mandatory” is manifestly arbitrary under Article 14 of the Constitution of India and is an unreasonable restriction on the litigant’s right to carry on business under Article 19(1)(g) of the Constitution. However, the completion of CIRP within 330 days is the general rule defining the outer limit, but the same can be extended only in exceptional cases.
Ritu Rastogi Resolution Professional Benlon India Ltd v. Riyal Packers
In this 2020 case, an appeal was filed regarding an impugned order declining extension of the time period of the CIRP process beyond 330 days. The RP was requesting just a 15- 20 days extension. It was contended by the appellant that due to basic information not being received within time by the RP, therefore, the process could not be completed. The NCLAT held that the case would come under an exceptional circumstance, and departure from the general rule of 330 as an outer limit under Section 12 can be allowed. If the appeal is denied, then it would have profound implications imperilling the legitimate interests of all stakeholders. Consequently, it might lead to liquidation, which has to be avoided at all costs.
In this 2020 case, the extension of the time period beyond 330 days was declined by the NCLAT and held that all attempts should be made to complete the CIRP within 270 days even though the directory provision provides for completion of the judicial process up to 330 days. Further, it was held that if the appeal were allowed, it would open a floodgate for such applications & will derail CIRP & the purpose of IBC, not only in this case but in other cases also; therefore, the appeal was dismissed.
End of the moratorium period
Section 14(4) mentions the time period the moratorium is effective, i.e. until the completion of the CIRP or on the approval of a resolution plan by the Adjudicating Authority or on a resolution of the Committee of Creditors to liquidate the Corporate Debtor, whichever is earlier. If the CIRP is not completed within the time period mentioned under Section 12, then the Adjudicating Authority may initiate the Liquidation procedure. When the liquidation procedure is initiated, as per the provision of the IBC, the Company will be wound up, and the steps will be taken for distribution of proceeds to creditors. In such a situation, the adjudicatory authority will direct the Corporate Debtor to initiate the liquidation process according to the manner mentioned in chapter III (Section 33). Similarly, a public announcement regarding the same shall be issued, and such order is required to be sent to the authority with which the Corporate Debtor is registered. Thus, the moratorium period is not indefinite, under Section 14(4) and therefore, “ the order of moratorium does not continue indefinitely, but has effect only from the date of the order declaring moratorium till the completion of the corporate insolvency resolution process which is time-bound, either culminating in the order of the Adjudicating Authority approving a resolution plan or in liquidation”. ( P. Mohanraj & Ors. vs M/S Shah Brothers Ispat Pvt. Ltd.).
After completing the moratorium period, if any claims of the creditors involve a disputed question that the RP or the adjudicatory authority cannot solve, then the creditors can approach any court of competent jurisdiction or apply to an appropriate forum once the period of moratorium is completed. For the financial and operational creditors whose claims are being settled by the adjudicatory authority or the Appellate Tribunal, the judgment is binding on both the creditors in terms of Section 31 of the Code. If their total claims stand satisfied, they cannot avail any remedy under Section 60(6) of the Code. Suppose the corporate debtor or its officials violate the provision of the moratorium. In that case, he can be imprisoned for a minimum three years period, which can be extended to five years. Such officials can also be fined a minimum of Rs 100,000 but not more than Rs 300,000. Similarly, those officials of creditors authorising such infringement can be jailed for one year. The same can be extended to five years and can also be fined a minimum of Rs 100,000, with the maximum penalty of up to Rs 10 million. (Section 74)
Conclusion
It is apparent that the creditors have faith that the company will survive, and its revival is possible until the last moment. The moratorium period gives breathing time to the corporate debtor so that it can reorganise its business. For this, adequate time is required to take into consideration measures for the same. Thus, the CoC, in their meeting, passed a resolution empowering the RP to apply to the concerned authority for the extension of the time period. When the concerned authority thinks it is fit in such a case to extend time, the same is granted. The progress of the resolution process is also evident for the tribunal while considering whether the extension should be granted or not. Thus, the role of the tribunal is vital in clearing out the ambivalences.
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Police Clearance Certificate (PCC) is a legal document issued to the Indian passport applicants and passport holders by a Government Agency or the Police Department to certify that the applicant has no criminal record. The police clearance certificate is mainly required for Indian citizens who are looking to migrate to a foreign country for the scope of employment, long-term stay or residential stay. A person travelling abroad on a tourist visa does not require to apply for a Police Clearance Certificate from Indian authorities. Currently, there are 17 countries which have been designated as Emigration Check Required (ECR) countries due to their relatively lenient rules regarding entry and employment of foreign nationals. To protect the citizens from wrongful employment, the Emigration Check Not Required or ECNR status is mandatorily required for non-tourist visa travelling to the below mentioned States:
United Arab Emirates;
Saudi Arabia;
Yemen;
Sudan;
Qatar;
Oman;
Afghanistan;
Syria;
Kuwait;
Bahrain;
Thailand;
Lebanon;
Malaysia;
Indonesia;
Iraq;
Libya;
Jordan.
What is a Police Clearance Certificate?
A ‘Police Clearance Certificate’ is a document issued by the District Superintendent of Police to an applicant, which certifies the following: 1. That the applicant is a citizen of India. 2. That the applicant is indeed the person whose photograph has been affixed on the PCC application form. 3. That the applicant has not been involved in any criminal case and that there is no criminal case pending against him /her in the court of law as per district police records. 4. That the applicant has not come to any adverse notice, which would render him/her ineligible for the grant of visa/immigration.
Who needs a PCC?
A PCC is needed by all Indian citizens who apply for a visa for visiting/ emigrating to a foreign country. The PCC has to be produced before the concerned embassy/consulate alongwith the valid Indian passport and other necessary documents. The PCC may also be needed by Indian citizens living/working abroad who wish to apply for foreign citizenship or for permanent resident status in a foreign country.
How to apply for a Police Clearance Certificate?
How to Apply For PCC Offline
To apply offline for a Police Clearance Certificate, the applicant is required to fill an application form that is available at CPRC Center of the district. Application form can also be downloaded from the district police website. The duly filled-in application form may be submitted personally or through a representative.
How to Apply For PCC Online
In the online PCC application submission the steps to be followed are outlined below:
Register on the Passport Seva Portal and login to your account.
Click on the Apply for Police Clearance Certificate link.
Fill up the form that comes up and submit it.
Click on the option titled Pay and Schedule Appointment.
You will need to make the payment online as it is mandatory.
Print the application.
Be present on the day of appointment with all the required documents.
Police Clearance Certificate Application Form
The form contains the following items which have to be filled out:
Country for which the Police Clearance Certificate is required.
Applicants name (includes middle name).
Applicant’s surname.
Applicants date of birth.
Gender.
Town or city of residence.
Marital status.
Indian citizenship type (select from options provided).
Employment type.
Educational qualification.
Family details (either mother/father/legal guardians details to be mentioned):
Fathers name (includes middle name and surname, no initials).
Mothers name (includes middle name and surname, no initials).
Guardians name (includes middle name and surname, no initials).
Residential address details:
Duration of stay at address.
Street name and house number.
Village, town or city name.
State or Union territory.
District.
Police station under whose jurisdiction the applicant falls under.
PIN code.
Applicants mobile number.
Telephone number (optional).
Email address (optional).
If the permanent address is the same as the residential address. If not, the section on permanent address is to be filled out.
Two References from the town/ city mentioning the references full name, address, telephone/mobile number.
Whether any criminal proceedings were conducted against the applicant. If yes, details to be provided.
Self-declaration to be ticked.
Place of filling the form as well as date to be entered.
The form is then to be saved and uploaded on the website.
Mandatory documents required
Passport in original plus self-attested copy of first 2 and last 2 pages of the passport which includes the ECR/ECNR page as well as page of observation (if any).
Address proof if change of address from what is given in the passport.
Copy of visa and translation of the same into English if the original language is something else.
Documents required (Work-Related Travel)
For skilled/semi-skilled individuals
In case of skilled/semi-skilled individuals who have signed a contract directly with a foreign employer and not through Recruiting Agents (RA) recognized by the Protector of Emigrants (POE), the following needs to be submitted for PCC:
Mandatory Documents along with a Self-attested copy of employment contract.
For unskilled individuals/Woman Applicants
In case of unskilled individuals as well as women (30 years or over) applicants who have signed a contract directly with a foreign employer and not through an RA, the following needs to be submitted:
Mandatory Documents along with Employment contract attested by the relevant Indian Mission or Permission Letter from relevant Indian Mission/Post.
For skilled/semi-skilled individuals (through Recruiting Agents)
In case of skilled/semi-skilled applicants who have signed a contract with a foreign employer through an RA, the following needs to be submitted:
Mandatory Documents along with Employment contract copies, demand letter and power of attorney from foreign employer, attested by the concerned RA
Registration certificate copy issued by the POE
For unskilled individuals/women applicants (through Recruiting Agents)
In case of unskilled individuals or women applicants who have signed a contract with a foreign employer through an RA, the following should be submitted:
Mandatory Documents along with Employment contract copies, demand letter and power of attorney from foreign employers, attested by the concerned Indian Mission.
Registration certificate copy issued by the POE
For dependent family members of a person emigrating or residing in both ECR & ECNR countries
Mandatory Documents along with Declaration of sponsorship by relevant person sponsoring the emigration of said applicant.
Documents required (Emigration-Related Travel)
Mandatory Documents along with Documentary proof denoting application for long-term visa, residential status or employment (employment contract copy).
Duration taken for Police Clearance Certificate to be issued
In case the Police Verification Report with respect to the current passport is correct without any adverse entry, then the Police Clearance Certificate will be given on the same day at the Passport Seva Kendra. However, in case of situations mentioned below, the Police Clearance Certificate will only be given after police verification process has been completed. After the Police Verification Report is given, the applicant will receive a notification from the Passport Office. Applicants will have to then come to the Passport Office along with their passport in order to avail the Police Clearance Certificate.
Applicant was a minor when passport was issued and hence did not require a Police Verification Report, and is now an adult.
Individual was a dependent of a government employee and hence did not need a Police Verification Report.
Police Verification Process could not be done during the time of passport issuance due to various reasons.
Current address of the applicant is not the same as the one mentioned in the passport.
Other cases wherein a passport was provided without police verification being done.
Police Clearance Certificate Status
The status of the Police Clearance Certificate differs from state to state. In some cases, the applicant is notified via SMS regarding the status of the clearance, after which he/she will have to visit the police station along with his/her passport and collect the certificate.
Once the applicant has received the Police Clearance Certificate, it is to be uploaded on the Passport Seva website.
The application status can also be tracked through the Passport Seva website. Applicants can go to the Track Application Status tab on the website’s homepage, whereupon they will have to enter the type of application (select Passport/PCC/IC), their date of birth and File Number. The application status will then be displayed on the screen.
Where do foreign nationals in India get a Police Clearance Certificate from?
Foreign nationals can get a Police Clearance Certificate from the office of the Foreigners Regional Registration Officer (FRRO) or from the District Police which is at their place of residence in India. On submitting the original, the copies may be attested by the Indian Mission.
Where do Indian nationals staying abroad get a Police Clearance Certificate from?
Indian nationals who stay abroad can get a Police Clearance Certificate by first downloading the application from the official website of the Indian Mission, submitting the filled-up form along with the required documents, which will be forwarded to the Passport Issuing Authority (PIA) in India. On receipt of the status report from the PIA, the Indian Mission will issue the PIA.
Other important information regarding PCC
Please don’t conceal any facts during filling the form.
Applicant/user should fill up correct details in each column. If the applicant feeds the wrong information he himself/herself would be responsible and PCC is liable to be rejected.
Applicant/user should have valid I.D. Proof of present addresses.
Please cooperate with the Enquiry Officer (E.O.) and provide him original & genuine documents, at the time of field enquiry.
A Police Clearance Certificate is considered valid for a period of 6 months.
Only one Police Clearance Certificate can be issued per application form.
There is no age limit to avail a Police Clearance Certificate.
A Police Clearance Certificate can be issued to minors only if it is required by a foreign government.
Conclusion
A police clearance certificate (PCC) is a legal document issued to Indian Passport holders in case they have applied for Residential status, Employment or Long term visa or for immigration. But it can’t be issued for persons travelling abroad on a Tourist Visa. It is basically a certification by the Police department to certify that the applicant has no criminal records. Gone are the days when you have to run from office to office to get your Police clearance certificate for various purposes like a job, Passport, Visa etc. Now, the police department has gifted the residents and visitors with an online Police clearance certificate. You can easily file an application regarding the same and submit it along with the requisite documents.
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