A comment on the scope of Section 13 (C) of the Code of Civil Procedure

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October 31, 2021

This article has been written by Deepanshu Agarwal pursuing LLB from NUJS, Kolkata and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

Section 13 of the Code of Civil Procedure, 1908, deals with the extent of conclusiveness of foreign judgments in India. By foreign judgments, we imply that the judgments that are pronounced by a foreign court, i.e. a court situated outside the territory of India over which the central govt. has no authority. As per the wordings of Section 13, a foreign judgment shall be conclusive, meaning final and binding, as to any matter directly adjudicated upon between the same parties or between parties under whom or any of them claim to be litigated under the same title. However, this conclusiveness of a foreign judgment has 6 exceptions mentioned in clauses (a) to (f) to that section.

Hence, to be deemed of a binding character, the judgment will need to pass through the 6 tests mentioned as exceptions, i.e. it must have been pronounced by a court of competent jurisdiction, it shall have been delivered as per merits of the case, it shall be founded on a correct view of International law or Indian law wherever applicable, proceedings in which it was delivered must have been in conscience with the principles of natural justice, it shall not have been obtained by fraud and there should have been no breach of any Indian law which is in force at the time. A foreign judgment will act res judicata if it successfully passes through all 6 tests laid down as exceptions to Section 13 and subject to other conditions laid down in Section 11 of the Code. It is also very important to note that the rules laid down under Section 13 are rules of substantive laws and not only procedural rules. This section embodies the principles of the private international law that a judgment pronounced by a foreign court of competence can be enforced by an Indian court and will operate as res judicata.

This article restricts itself to a detailed analysis of Clause (c) of this section in the Code. This clause as one of the exceptions states – “where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases, in which such law is applicable”. It means that the foreign judgment based upon a wrong view of an International Law or a denial to recognize the Indian law, when it is applicable is not conclusive. However, the mistake must be apparent on the face of it. If a specific judgment has a glaring incorrect view of international law or does not recognize the Indian laws, even when they were directly applicable, then the judgment would not be binding and section 13 (c) would be satisfied.

This article seeks to analyze the scope of this particular clause in the section with reference to Indian cases where it has been contended upon by the parties or refereed upon in the judgment.

Analysis

The Punjab and Haryana High Court in the case of Firm Gauri Lal Gurdev Das v. Jugal Kishore Sharma observed that the provisions as enumerated under Section 13 of CPC are applicable both to suits and execution proceedings. Even after parties have proved all elements necessary to apply Section 13 and make a judgment conclusive, there still exist exceptions where it won’t be deemed so. A foreign judgment isn’t conclusive if any of the following two conditions as laid down in Section 13 (c) – (a) if the proceedings are based on wrong or incorrect view of international law, or (b) the foreign court refuses to recognize the law of land in India in such it is applicable, are satisfied.

We can better understand the applicability of the clause by understanding the facts by a simple example. Let us assume that there was a contract entered into in India, however, some dispute arose in the performance of the contract. Consequently, a suit was filed in England on the basis of that contract and the English Court applied the English Law while adjudicating. What would be the effect of that judgment by the English Court?

The judgement would be deemed non-conclusive. Personal contract disputes that extend beyond borders are governed by principles of Private International Law and it is a prominent feature of private international law that only the laws of the land where the contract was formed will be applicable to determine rights and liabilities to the parties to the contract. This is as per the application of the maxim of lex loci contractus. A similar set of facts was presented before the Supreme Court of India in the case of International Woolen Mills v Standard Wool (UK) Ltd. The judgment by the English Court, in this case, was held by the Supreme Court to be based on an incorrect view of International law. The court rightly applied the 1^st condition as mentioned in clause (c) to section 13 of the CPC to render the foreign court judgement non-conclusive. Thus, as rightly observed by Supreme Court in the case of Narsimha Rao vs. Venkata Lakshmi, when a foreign judgment is founded on the jurisdiction, a claim or on a ground, not acknowledged by Indian or general International law, then such a judgment will always be deemed unenforceable as it will be in defiance of the prevailing law.

There have been many similar cases in India where the judgements given by foreign courts were deemed unenforceable India. In the case of I&G Investment Trust v. Raja of Khalikhote, the Calcutta High Court held that a judgment delivered in England was based on an incorrect view of Foreign law when the English court decreed a claim on debenture payable in the capital city of London. This decree was contrary to the provisions of the Orissa Money Lenders Act and hence was not applicable in India. Similarly, the judgment pronounced by the Malaysian court where it decreed one-third of the estate of the Muslim Husband in favour of his widow was not enforced in India as per the decision of Madras High Court because under Indian Law share of the widow can only be One-Eighth.

Similarly, the Punjab and Haryana HC while deciding on a divorce case of an NRI couple ruled that any judgment ruled by a foreign court would not be considered conclusive in relation to the exact same matrimonial dispute lis pendens before a domestic court. The court rightly held that the married people who migrated after solemnizing their marriage in India as per the Indian Laws would only be governed by such laws and any decree pronounced by the foreign court in relation to the matrimonial dispute must be in accordance with the Indian Laws to make it binding. However, in this case, the UK court passed a divorce order on grounds of irretrievable breakdown of marriage but since such a ground isn’t available as per Hindu Marriage Act, the act as per which marriage took place, the divorce decree will neither be binding on Indian courts nor will it be recognized by it. Hence, in this case, too, the conditions required to be satisfied for applicability of the exception mentioned in 13 (C) were fulfilled and the decree by the UK court was ruled not to be conclusive.

However, there have also been a few cases where the foreign judgments were held to be conclusive and despite the contention by the parties, Section 13(c) was held to be inapplicable. The verdict in the case of Anoop Beniwal vs. Jagbir Singh Beniwal is a classic case study in this category. In this case, the plaintiff had filed for a divorce decree in England on the basis of the Matrimonial Causes Act 1973, the English Law on the subject. The English court duly granted the divorce under Section 1(2) (b) of the act which mentions the behaviour of the respondent in such a way that petitioner cannot be reasonably expected to stay with the respondent as one of the grounds for irretrievable breakdown of marriage and consequently divorce. However, when the couple came to India for enforcement of the decree, the respondent claimed that there was the refusal by the English Court to recognize Indian law, which has no such ground for divorce and hence the verdict should not be rendered conclusive. However, the Indian court deemed cruelty as defined under the Hindu Marriage Act, almost similar to the ground of divorce under English law. In fact, it was held that the English Statute used a milder expression of the ground of cruelty and hence the verdict was enforceable in India and there was no violation of the Indian law.

Likewise in the case of Sundaram Pillai v. Kandaswami Pillai, the foreign judgment was held to be enforceable despite the defendant’s plea that the judgment of the foreign court was obtained in breach of the Indian Contract Act as one party, though above the age of 18 was a minor by virtue of appointment of guardian under the Guardians and Wards Act 1890 and contract with a minor is void as per Indian law. However, the court held that the plaintiff’s claim was also based on moners due from the undivided Joint Family and claim for the supply of necessities and hence, a part claim under ICA which was not regarding breach of the law. Thus, as the decree sustained a claim which was not wholly based on breach of the Indian Contract Act, the appellant was allowed from executing the decree in India.

Thus, from the above cases concerning Section 13(c), it can be safely concluded that the foreign judgment will only not be conclusive if it appears on the face of the proceedings. This is different from the law prevalent in England where mere mistake as to English Law does not vitiate a foreign judgment notwithstanding that it may appear on the face of the proceedings (see Godard vs. Gray). In India, a judgment contrary to the established view of International law or an explicit or apparent refusal to recognize the Indian Law in cases it is applicable would not be binding. That is to say that the court shall for example in Divorce proceedings check that whether local laws must be applied or recognized as the marriage was solemnized in India or whether the jurisdiction of a foreign court by virtue of domicile would be a sufficient answer to such a matter.

Enforceability and recognition of a foreign judgment in India

Section 44 of the Code explicitly states that if a decree has to be executed in India, then the country which pronounced that judgment must be a reciprocating country. There is a list of 11 countries that have been classified as reciprocating countries under Explanation 1 of Section 44-A. As per this section, a decree passed by a superior court in any of the reciprocating countries is as executable as a decree passed by a domestic court. It therefore can be inferred that to be influenced by the principles of Section 13, the state needs to be a reciprocating state in the first place. However, if the decree fails to pass through the tests laid down as exceptions to Section 13, then also it cannot be executed. Also, Section 11 regarding Res Judicata must be completely followed and hence a foreign judgment would not be entertained if there are conflicting Indian judgments on the same issue between the same parties.

Difference between the Scope of 13(c) and 13(f)

The exceptions laid down in Section 13 (c) which has already been discussed throughout and Section 13(f) which deals with the sustenance of a claim founded on a breach of any Indian law in force often overlap and hence lead to confusion. There have been many cases like the above discussed Orissa Money lender’s Act case and the Pillai v. Pillai case, where both of these provisions were invoked. However, it is important to note that 13 (f) can only apply if the order, decree or judgment is founded on the cause of action that has either originated in India or is closely linked to India, whereas for 13(c) to be applicable, the sole condition required to be satisfied that judgment on the face of proceedings appears to be founded on an incorrect view of private international law or fails to recognize Indian law. A foreign judgment for a gambling debt would not be enforced in India as gambling is illegal as per Indian and hence it would be deemed non-conclusive under 13(f). Similarly in one case as referred to in Sheesh Subhash Hegde vs. Darshana Saeesh Hegde, it was held that a divorce decree of Roman Catholics married in Goa, which was deemed indissoluble under the Goan law would not be enforced in India as it was founded on a breach of Indian law.

Conclusion

Thus, from the above analysis, it can be safely concluded that a judgment even by reciprocating countries would not be conclusive in India if it attracts any of the 6 exceptions as enumerated in Section 13 of the code. Exception 3^rd to that section, i.e. 13(C) lays down the strict conditions which are necessary to make foreign judgment conclusive. The presence of that section also ensures that general common principles of Private International Law are not ignored and the correct view as per International Law is taken into account. Due to this section, a party to the suit will be assured that blatantly incorrect judgment which is not in accordance with Indian law will not be enforceable and he can any time question its validity in the Indian courts. This section not only allows a plaintiff to avoid the inconvenience of presenting evidence in Indian courts which solve disputes over the years but also tries to make sure the verdict won’t be much different if Indian Law is recognised. Though the tendency to challenge the foreign judgments in India as per ground laid down in 13(c) also provides that the courts which are already overburdened will continue to be burdened with futile cases, however, this can be avoided if the foreign court of the reciprocating country simply considers the Indian law while delivering judgment so that there is less scope of challenge by the party who loses the case in a foreign court.

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All you need to know about the judicial recognition of Lok Adalat

By

Diganth Raj Sehgal

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October 31, 2021

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15902326531473744004lok_adalat — Image source: https://bit.ly/34OEyFX

This article is written by Ankita Sahoo, pursuing BBA LLB from KIIT University, Bhubaneswar. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

Conflicts and disputes lead to consumption of capital, valuable time, effort etc. It is very important and significant that conflict must not arise in society. But that is near to impossible as people live together in a society and there is the possibility of conflicts and disputes arising between them. So, the solution to this problem is that when any conflict arises its head, it must be nipped from the bud. In the majority of the countries, the judicial system is overburdened with many cases. Any recent case which arises takes a prolonged time to be determined. And in the meantime, till the judgement regarding the case has been taken, a state of unpredictability and desolation arises which makes any activity near to impossible. Since a long duration of time is taken to resolve disputes through litigation, a number of things get affected like the commerce, development work, administration, and business.

In order to solve conflicts and disputes without getting involved in lawyers, courts and litigation majority of the countries rely on supplementary or alternative forms of dispute resolution. In India, the practice of these methods has been there at root levels for a long time as tradition and history. These practices are called panchayat and in legal nomenclature, these are called arbitration. In India, these are used extensively to resolve both commercial and non-commercial conflicts. Another alternative method for dispute resolution practised in India is Lok Adalat technicalities. Also, the use of methods like mediation, conciliation, and negotiation to resolve the dispute are increasing instead of going for litigation.

Lok Adalat

Lok Adalat is based on the principles by Mahatma Gandhi generally known as Gandhian Principles. Lok Adalat has been there in India since its ancient times. Popularly it was called panchayat and in legal nomenclature, it is called arbitration. Lok Adalat is one of the forms of Alternate Dispute Resolution. Since in the modern era Lok Adalat gained much popularity as it is cost-effective, speedy and result giving, it got statutory recognition through Legal services Authorities Act. Legal Services Authorities Act construct the statutory provisions in connection to the functioning and organisation of Lok Adalat.

The Taluk Legal Service Committee or High Court or the Supreme Court of the State or District Legal Services Authority can arrange Lok Adalat at specific timings and places, and it also decides on the jurisdiction for such areas which it thinks fit upon its own discretion. The NALSA beside legal institutions other than NALSA conducts Lok Adalat. It was formed under the Legal Services Authorities Act, 1987. The Act came into force from 9^th November 1995 to set up a countrywide consistent network to give competent and chargeless legal services to the poorer and feeble sections of the community.

Jurisdiction

Lok Adalat has the authority to decide over cases that are pending in any court or the matter on which the case is must be falling under the jurisdiction of Lok Adalat and the case must not have been brought to the court earlier.

Any case which has been brought before a court but the decision regarding the matter has not been given, can be resolved by Lok Adalat only if both the parties to the case agree upon resolving the dispute in Lok Adalat or if any one of the parties apply for appeal in the Lok Adalat to solve the dispute or if the court deems fit that the matter in the dispute can be solved in Lok Adalat.

A case can be brought before Lok Adalat if it is in the Pretrial stage, where a request is received from any person involved in the conflict.

Cases related to issues involving marriage, Labour disputes, Acquisition of land, Divorce, criminal cases, family disputes, bankruptcy cases and other similar cases can be brought to Lok Adalat.

Nonetheless, Lok Adalat will not have the authority to give judgement over any case or matter relating to a case that is not covered under any law. In other words, cases that cannot be covered under any law fall outside Lok Adalat.

Powers

Lok Adalat will have the similar power as a Civil Court have under the Code of Civil Procedure. Lok Adalat has the alike authority to give judgement as a civil court has as per the Code of Civil Procedure.

In addition, Lok Adalat will have the necessary power to clarify its decision-making process for any dispute that comes prior to it.

Whatsoever award is given by the Lok Adalat in a case and whatever decision has been given by Lok Adalat will have a similar effect as if the award and the decision is given by any other court or a civil court.

The decision given by Lok Adalat will be final and the award given by it will be binding on both the parties to the case that has been brought before the Lok Adalat. An appeal cannot be filed in any court against the release of Lok Adalat.

Benefits of Lok Adalat over Litigation

In Lok Adalat, the dispute settlement takes place outside the court. People mostly prefer that their matter could be resolved in this kind of settlement. Most people fear to prefer court litigation not because only of the delay in procedure but also for the financial burden one has to go through the process. One of the main reasons for the formation of Lok Adalat was to give fair, equitable and accessible justice to the financially backward people of our country. Although the government have taken steps to provide legal aid to the poor, there is the probability of monetary loss for which many people prefer Lok Adalat.

Family-related cases like accusations of property disputes, matrimonial disputes, are solved efficiently and faster in Lok Adalat. Though there are family courts for these matters, people prefer to settle outside the court due to access justice without consuming a lot of time which is rightly delivered by Lok Adalat. It saves money and time as well as for the parties it is untroubled to make their claims which are not the same if the case was in a court. The witnesses also do not want to involve in legal proceedings and are afraid this will not be a case if the matter were to be solved in Lok Adalat.

In Lok Adalat there is no Court fee and if a pending case is solved in Lok Adalat and Lok Adalat give its decision then the fees given to the court earlier will be refunded.

In Lok Adalat, there is speedy trial, and the procedures are flexible. There is no stern solicitation of the rules of procedure during the examination of Lok Adalat’s claim.

In Lok Adalat, Parties to the case can give suggestions and advice to the judge of Lok Adalat. But this is not possible in general regular courts.

The decision taken by the Lok Adalat is final and binding upon the parties. The award given by Lok Adalat has a similar effect that to any other court or Civil Court. The award and decision given by the Lok Adalat is non-transferable due to which the dispute brought to Lok Adalat is resolved without delay of time and effectively.

Disadvantages

When a case is taken up by Lok Adalat, the matter will be solved with lesser cost and within lesser time which means that there is a high probability of getting less compensation and the parties will not get time to claim a higher amount of compensation as it will take more time which he justly could have got. But in case of the matter has been brought before the court the probability is higher of getting more compensation as compared to Lok Adalat. After many such cases, the supreme court ordered Lok Adalat to look after these matters and be careful while imparting justice keeping in mind that the right of any party involved must not be impaired. We all have heard that justice delayed is justice denied but also if justice is hurried the justice is buried. Easy and faster justice must not be the price for unfair arrangement and injustice.

In Lok Adalat, every kind of case is not suitable. Lok Adalat has jurisdiction over limited types of matters. In Lok Adalat what mostly happens is compromise and settlement which is not the requirement in every case. In India, many cases need to be dealt trough punishment based and correctional methods which can not be dealt with in Lok Adalat. These types of cases if brought before Lok Adalat, will be unable to impart justice and the case will move to the court. This will create needless trouble and additional delay in legal proceedings, sometimes which is needed as early as possible.

Judicial recognition of Lok Adalat

The objective of Lok Adalat is to solve cases in a short time, effectively and efficiently through means of Negotiation, conciliation, and a convincing and humane approach to solve the problems of opponents.

In a case, High Court ruled that “The provisions of the Legal Services Authorities Act shall prevail in the matter of an appeal and the appeal shall not be subject to the provisions of Section 96 CPC. Lok Adalat is made under private law and if this award is made by Lok Adalat, the right to appeal shall be governed by the provisions of the Act. Under Section 21(2) of the Legal Services Authorities Act, no appeal may be lodged with this award under Section 96 CPC. The Court further stated that” It may also be seen that the Code of Civil Procedure does not provide for an appeal under a decision under Section 96 against a permit. Such a Court may not be given permission to be knocked down, chiefly under the Legal Services Authorities Act, as it would be tantamount to defeat the very purpose of the Act, and that is why We, therefore, the Appeal stands invalid.

The High Court of Andhra Pradesh in a case held that the award of Lok Adalat is enforced as a decision and is final. The objective is clearly to bring down the number of disputes, and a final agreement is reached so that the disputing parties can no longer continue to pursue cases or any dispute. Although the release of Lok Adalat is not the outcome of a competency contest as regular litigation by the Court in a common case by a Court in a recurring case, it is, however, equitable and consistent with a moderate decision and will have the same binding and complete effect.

The fact is the decision on the consent is intended to suspend the trial between the parties as is the case with the decision from the Court’s decision after the matter was extended to the end.

Conclusion

Lok Adalat has been there in India for ages in form of panchayat and it is there for a cause. In today’s world where no one has time to even rest, everyone wants disputes to be solved within a short span of time and effectively. The key to this is Lok Adalat. Also, in India as a significant part of the population is a poor and weaker section of the community, they could not afford to get justice through litigation. Here also Lok Adalat will be a boon and this section of the community will be able to get justice as it is their right and will be able to uplift this section of people. In the present world, alternate dispute resolution is very successful and Lok Adalat is one of the forms. Though Lok Adalat has certain disadvantages Lok Adalat is a need in India to provide justice throughout the country.

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Virtual courts and the pandemic

By

Abanti Bose

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October 31, 2021

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This article has been written by Ch. Priyanka, pursuing BA.LLB [hons.] from GITAM University, Visakhapatnam and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

India, being one of the largest democracies of the world has the world’s largest constitution that too in a written format making it stand apart from the world countries thus, giving it the right amount of rigidity and flexibility just to adapt it according to the dynamic nature of the society. This law book of India i.e., the constitution has a few features such as the federal system, directive principles of state policy, parliamentary form of government, etc. And one such important feature of this sovereign nation is independence and an integrated form of the judiciary.

India has three organs to govern it; the executive, legislature, and the judiciary. The executive body of government deals with the implementation of policies framed by the legislature; which in India are the prime minister and the parliament respectively. The judiciary is a body of courts pertaining to the jurisdictions which perform the function of the application of laws in case of a breach i.e., a system that resolves the disputes between the citizens in case of an infringement or a breach.

India remains successful as a diverse nation with its democracy and justice intact. But, the dynamic society with its increasing rate of crimes and offences has led to an increase in the filing of cases one after another waiting to get resolved; leaving the parties in a vacuum of delayed injustice. This casts an obligation upon the Indian government to look after these cases and ensure a faster justice. This lockdown scenario which is forced upon us due to the Coronavirus has worsened the situation. Moreover, it has brought us to a deadlock wherein the economy is exhausting, COVID- cases are increasing due to the improper confinement rules and the addition of accumulation of thousands of cases to deal with.

The virtual judicial system

This is where modern technology comes in handy to deal with judicial cases to prevent the gaps in the justice delivery system through the establishment of Virtual courts. A Virtual court means the filing of a suit or a case, its hearing, the court fees, and other formalities will be online, as it will be dealt with by the judicial bodies virtually.

Well, just like a knife has two sides- one to chop vegetables and the other useless, this system of delivering justice through a virtual medium has its own pros and cons.

Overcoming the challenges of coronavirus through practising social distancing and proper sanitizing is not commendable enough by launching the virtual court’s cause, the primary hindrance is the lack of technical knowledge among the citizens. For instance, a person who is financially backwards and is awaiting justice for years may not have access to and knowledge of technology.

Secondly, this virtual justice delivery system is not adopted by all the judicial bodies which in turn means that in some judicial bodies, the situation of excess cases is increasing day by day. This points out the poor implementation and the lack of technical resources to deliver the main feature of the country – justice.

In addition to this, those judicial bodies which adopted these “above the fold” justice delivery systems have prioritized the cases which should be heard. So, this clearly states that the hearing of cases is not going on in order and is left to the discretion of the judicial bodies.

The scenario of physical courts to date has been turned upside down by this pandemic – costing people their time and justice, which necessitates not just the presence of virtual courts but also it is working at a faster rate. And, the successful implementation coupled with the effective working of the virtual courts will reduce the burden of cases leading to faster delivery of justice.

There is a belief that ” A court of Justice is a public forum” and this is satisfied by the physical open courts, as this grants fairness in the application of laws with impartiality and develops public confidence. And this publicity of court trials and open court hearings will ensure proper belief in the judicial system of the country. This cannot be achieved through virtual courts as it is not open to them as in the case of open courts.

Though telecasting hearings or judgments is an option, it is quite difficult for the court to telecast every case hearing. I mean considering the number of cases to be dealt with, it will be vague to search a court hearing of a particular case.

Lastly, for the virtual court proceedings to take place without any disturbance, the prime necessity is a high-speed internet connection with proper electricity. This is not available and feasible everywhere. Cause, the parties who reside in rural areas or those who reside where the network connection is not possible is something that has to be considered for virtual hearings. This is one of the main drawbacks of virtual courts.

Benefits of virtual courts

The first and foremost advantage of the establishment of virtual courts is that it reduces the manpower and the paperwork which is profitable and cost-effective when compared to open courts. This reduces the manpower at the same time, cutting down on miscellaneous expenses of an open court such as electricity,

maintenance, infrastructure, staff, security, etc. It also flattens the huge travel charges of the parties due to the repeated hearings of the cases. The next advantage of these virtual courts is that people can communicate from anywhere, as they can be a part of court proceedings from their homes. This helps in covering a wide range of geographical areas. And parties who are far away from the cause of action can completely attend the court sessions from their regions.

Though there are a few initial hiccups, the system of virtual court hearings would lead to the digitalization of court cases and court management will be more efficient due to the reduced number of paperwork or manual work. As a result, the workflow will be at a good rate. Core eyewitnesses, who should be provided security to attend and provide evidence and statements can give the same through e-courts’ video conferencing method. They need not be afraid of the consequences. Moreover, the e-courts will mitigate the spread of coronavirus; a full-fledged and effective implementation of e-courts will help in eliminating the piling cases, that is, the courthouse traffic will come to a reasonable level and eventually result in a decreased number of cases.

India and virtual courts

In the backdrop of the lockdown situation imposed by the pandemic and to overcome many other challenges by the same, the Supreme court of India has given a few directions to proceed further with the e-court justice delivery system via video conferencing which are given as follows:

● The Supreme Court of India has obligated every High court to continue the functioning of the judicial system by using video conferencing technology.

● The Supreme Court has also directed the district courts to adopt video conferencing technologies as prescribed by the High Court.

● The apex court held that courts should make the necessary facilities available to those who require the same which include the appointment of an ‘amicus curiae.

● It also held that the courts should follow the video conferencing techniques for hearing arguments at the stages of trial as well as appellate.

● It also mentioned that the recording of evidence through video conferencing will be left at the discretion of the parties.

These are the orders of the Supreme Court of India regarding the establishment of e-court systems and are binding upon the lower courts until the next orders of the Supreme Court regarding the same. The first virtual court of India was launched in Delhi’s Tis Hazari Court. After that, a few state high courts like

Telangana, Punjab, Haryana, and Bombay high court issued their measures of virtual court and adopted accordingly.

The world and virtual courts

The world countries are shifting towards these virtual courts with the use of advanced technology. They have evolved and are ahead of us in the concept of virtual courts which gives us an insight. This helps us to understand and prevent future problems. So, to prevent the common issues of technology and resolve them, there comes a necessity of observing the world countries’ strategies and developments in this area.

Many countries like China and the US are following the system of virtual courts in the context of this pandemic outbreak. The UK has also been using the e-court system but from an earlier stage, that is from 2009. The UK judicial officers stated that this system of e-court is beneficial since it has improved the judicial system and the movement of prisoners to the court is cut down. They even stated that the virtual court system is cost-effective. These virtual courts deal with both criminal and civil issues.

China, our neighbouring country, has had a virtual system of courts since 2015. They named it “Robot Justice” which means the internet courts and have quite a different approach when compared to other countries as they have Artificial Intelligence in place which means that the judges are non-human. Surprising, isn’t it? But these have jurisdictional power of ruling only over civil issues.

Conclusion

There are a few perceptions that these modern technologies are a threat to the justice delivery system and some feel that technology is merely gadgets. But, technology should be used in such a way that the system of the judiciary improves and becomes more transparent. The benefit of advanced technology upon proper usage and implementation will lead us to the goal of an integrated judicial system. This is the future of the country as the practice of law will change and the approach to justice will completely change. It is a matter of time that we start understanding our technological hindrances and overcome them thus, improvising the judiciary at the end for the common good. It might be a longshot and yes there are many challenges to achieve a stable system of e-courts, but the only way we can achieve a better future is only when we resolve them. And resolving these issues coupled with effective implementation without any loopholes will bring in a transparent, efficient, and timebound judicial system.

References

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All you need to know about Data Empowerment and Protection Architecture

By

Abanti Bose

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October 30, 2021

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This article is written by Shreya Jain, pursuing Diploma in International Data Protection and Privacy Laws from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

Currently, data is in control of the giants who have captured most of the marketplace all over the world. These incumbents make profits more than the GDP of a few countries. Since data is the new oil, they have become powerful and have already created a monopoly in the market dynamics. This has affected small scale enterprises to survive in such a tech-savvy marketplace. It is inevitable to mention that with the COVID-19 outbreak, businesses of many small entrepreneurs have either vanished or are surviving with much difficulty.

To overcome the same, and to sustain competition in the market, it has become essential for governments to intervene and come up with some solution for providing fair opportunities to all the businesses present in the market, and to promote new ones providing them with the facility to easy access to the existing data and to share it with third-party institutions. Therefore, NITI Aayog has come up with a framework known as Data Empowerment and Protection Architecture (hereinafter referred to as DEPA) which will enable SMEs to utilise the existing data that is available in silos, i.e., with the existing players from the industry such as fintech, e-commerce, healthcare or insurance bringing out new products and services in the market.

Hence, DEPA may be considered as a global solution to the existing problem in the industry wherein data is accumulated in the hands of a few and generates opportunities for market players across all the sectors. It will enable the provide entrepreneurs to leverage this framework to build new products and services. Let us understand what DEPA is, and what does it aim at?

Data Empowerment and Protection Architecture (DEPA)

Data Empowerment and Protection Architecture is a framework released by National Institute for Transforming India (NITI) Aayog in India. It is also called a “consent-based-data-sharing framework to accelerate financial inclusion. Ensuring consent-based sharing, the granularity of the information (data subject may decide what information to be shared), and moving from data fiduciary centric model to individual-centric model. It basically entails the procedure for receiving and giving consent to share data to the third parties through the consent manager. Data would be encrypted; hence, the consent manager does not have access to data. A similar mechanism is being developed for each sector. The procedure is clearly explained in the chart below:

Aim of DEPA

DEPA framework aims at allowing people to access their data seamlessly and securely, and share it with third-party institutions. It is an Indian model of data governance that is evolving and targets individual empowerment, economic recovery and growth, and competitive data democracy.

DEPA also focuses on the financial inclusion of individuals, digital opportunity, consent manager involvement, organ framework, APIs for data sharing, etc.

Special attention is given to the utilization of existing data sets along with the India stack to empower individuals to have control over their data sharing and build new services. It is brought to the table keeping in mind the benefits of individuals and small firms and are not merely constraining incumbents to benefit from using individual’s data.

Primarily, DEPA entails salient features in its draft which widely covers all the sectors including financial, health, telecom, etc. These key highlights play a major role in curbing the existing monopoly with the silos and promoting fair competition in the market.

Key highlights of DEPA

Financial exclusion

It enables the growth of MSMEs (greater financial security), new aspirations (through credit), and prosperity (through savings and investment).

Digital opportunity

Since data is the new oil, through this framework, MSMEs will become data-rich, and resultantly, witness socio-economic growth. Due to the large scale use of data in the digital market and the increase in mobile connectivity after the advent of Aadhar, UPI, etc., members from lower socioeconomic strata are more data-savvy a have more access to data. Therefore, small businesses, Kirana shop owners etc., could use their digital data for building trusts with financial institutions for availing credit. APIs enable encrypted data flow between the data user and the data provider.

Data silos

Data is in control in the hands of a few incumbents; and presently, whoever has data, has power.

If you pay attention to the numbers, Facebook and Google together dominate about 71 per cent of the digital ad market in the US. It is merely because of the concentration of data in the hands of silos. Data needs to flow to gain maximum economic growth.

WeChat and AliPay also own 93 per cent of the $5.5 trillion mobile payments market (about 50 times the US mobile payment market) leaving a meagre 7 per cent for other banks. Below is the chart of the world’s largest data centres wherein the US and China are dominating the world:

Therefore, in India, DEPA has tried resolving a similar issue by focusing on sharing data amongst other small players present in the market and simultaneously, protecting and empowering the data.

Inverting the data

It basically means giving power to the user and announcing to him the owner of his data. Users can share the data in a secure manner, and opt for sharing it for its own benefit, rather than sharing it with silos to get advertisements. Although it requires an evolvable, interoperable, and secure data sharing framework to stand in the market.

Paradigm shifts towards empowerment

It is personal data management that transforms the current organization-centric data sharing to an individual-centric approach, it promotes user control on data sharing for empowerment. Hence, companies can not benefit from an individual’s data.

A new class of institution

Consent managers are created in the new market, they are more inclined to individuals, hence, no more extortion of data from the users can take place will prevail. This framework is majorly proposing the implementation of consent managers in all sectors as a way to manage users’ consent which would ensure that individuals can provide consent for every piece of data shared and would work for the protection of data rights. It primarily focuses on replacing the current mechanism for data access and sharing mechanism which involves bulk printout notarization and physical submission, screen scraping, username/password sharing etc. It recognizes the problem of small firms not being able to reap the benefits of individual data and ends up being used mostly by the larger firms.

Technology foundation

It is primarily designed wherein consenting is programmable as opposed to all permissive terms and conditions. It is designed on the principles acronym ORGANS:

O– Open standard- unified approach for all the companies.

R– Revocable- individuals can withdraw their consent anytime.

G– Granular- individual decides every time if the data has to be shared, and for how long.

A-Auditable- in machine-readable logs of consent provided.

N– Notice to all parties provided.

Here, it is easy for users to understand and interpret information. Therefore, no over-consent is given or less informed users exist.

Guiding principles

Data protection, affordability, accountability, individual agency, incentive alignment, minimising data, informed consent, data minimisation, data rights, data use, reciprocity, shared open infrastructure, etc., are a few guiding principles of DEPA.

Combinatorial layered innovation

Identity layer (individuals having a unique identity) like Aadhaar, eKYC, eSign, etc., payment layers enabling interoperable, instant and cheap payments, and Data empowerment by bringing in the picture consent manages, DigiLocker, etc.

DEPA in various sectors

DEPA in the financial sector : the account creator model

“DEPA introduced in the financial sector in 2020 under the joint leadership of the Ministry of Finance, Reserve Bank of India (RBI), Pension Fund Regulatory and Development Authority (PFRDA), Insurance Regulatory and Development Authority of India (IRDAI), and Securities and Exchange Board of India (SEBI)”- as announced By NITI Aayog.Although the same has already begun in the financial sector, with a closed user group (CUG) launched by major banks in July 2019.

Account Aggregator (AA) is a consent Manager in the Finance sector. It is basically a class of NBSC approved by RBI to manage consent for financial data sharing. There will be multiple AAs present in the market to provide consent-based services to the users as well as data fiduciaries. Financial Information Provider (FIP) and Financial Information User (FIU) may use this service. Few AAs already existing in the market include CAMSFinServ, Cookiejar Technologies Private Limited (product titled Finvu), Finsec AA Solutions Private Limited (Product tilted Onemoney). Etc.

The diagram below depicts the functioning of the Account Aggregator:

DEPA in the health sector

DEPA was proposed to be piloted in the health sector in 2020, the same has been iterated by Hon’ble Prime Minister, Narendra Modi on Aug 15^th wherein he also announced the National Digital Health Mission, which includes a Health ID and a data-sharing framework for personal health records of all the individuals (similar to Aadhar card).

DEPA in telecom, education, jobs, etc.

Currently, DEPA has laid its roots in the Financial Sector and will soon expand its umbrella to the health sector, followed by the telecom sector, education sector and so on as announced by NITI Aayog in its guidelines scheme. However, it is yet to be seen how data will perform in the financial sector in order to analyse its impact, growth and performance in the health, telecom and education sectors.

Challenges that DEPA may face in India

Organisations that are self-regulatory may create difficulty in considering consumer issues.Although the DEPA framework envisages that Self-Regulatory Organisations (SRO) will not be biased towards any stakeholders, be it consent managers, data providers and consumers, however, in practice, it might be difficult to balance the needs of all the three parties mentioned above.

Further, procedural data sharing guidelines for SROs, consultation procedure, complaints mechanism, etc. have also not been mentioned yet in the DEPA. Regulators are going to play a key role in the same and may become a deciding authority for the same, but the same has not been finalised yet.

Data fiduciaries like laymen, small scale enterprises, Kirana store owners, etc., may face certain issues which need to get resolved in no time for them to trust the process. For instance, if the consent manager asks for the consent of the data fiduciary to share its data with a third-party institution. If there are multiple questions to answer in order to provide consent regarding each question, it will be a lengthy procedure. Lack of awareness amongst the stakeholders.

PDP Bill is still pending in the Parliament; it is the need of the hour. Therefore, for DEPA to come into existence, the data protection bill must be ratified is a must. A mandate/law is required for a country population like India to be willing to work on such neglected topics.

Moreover, it is going to be a big challenge to convince incumbents to move to DEPA. They have their own set of rules and procedures, and this novel invention is going to take away their monopoly from the market, hence causing them a huge loss.

The overall picture of DEPA looks great, however, it lacks clarity, practicality, and there are some loopholes that have not been talked about yet.

Conclusion

DEPA looks great from the outside, as deeper you go, you find multiple loopholes. It is a time taking procedure, needs practice in all the sectors to bring it into effect across the country. It is a cliché framework but in practicality, too far to reach its goal.

Incumbents who have data have power. Therefore, it is important to safeguard and protect data from being getting misused. To accomplish the same, the Government of India is trying to come up with a Personal Data Protection Bill. The bill is still pending to be approved by Parliament. Hence, till today, there is no law to protect the data of data fiduciaries in India. DEPA is somehow connected to PDP Bill and without its enactment, it will be a challenge to bring into practice the DEPA. Without Law, people lack trust and sincerity to abide by the framework.

Furthermore, due to covid situation, the internet has become an inevitable part of people’s lives. With the increase in the use of the internet, data sharing has also increased, resultantly, increase in cybercrimes, targeted marketing, etc. Therefore, this is another reason to bring into effect is a data law.

References

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Here’s what you need to do if you end up being a victim of revenge porn

By

Rachit Garg

-

October 30, 2021

0

This article has been written by Kartavya Nema, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. It has been edited by Zigishu Singh (Associate, LawSikho) Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The sharing of personal information includes intimate photos, videos or any other things which are private between two partners. They are uploaded on the public or social media platforms or any adult websites, for example, Twitter, Whatsapp, Instagram, Facebook, by another partner for the purpose of harassment, blackmailing, extortion or as revenge, intending to harm the reputation or create a wrong perception amongst people and the society.

There is no clear definition of revenge porn in Indian laws or any specific punishment for the accused. Different provisions of the Indian Penal Code and Information Technology Act, 2000 deal with the offence of revenge porn. Therefore, the victims currently have those two laws as a remedy. It is very necessary that the victim should know the right steps to follow and the right way to approach the appropriate authority. In this article, we will talk about these approaches in a step-by-step manner. First, we will discuss which measures shall be taken by the victims by themselves for removing content on the platform. The second part discusses how the victim should approach the police and the Cyber cells of various states, for ensuing penal action against the accused

What is revenge porn and how does it impact the lives of women ?

The act of sharing of personal information without the consent of that person on a public platform, with the intention to humiliate, harass, and mentally torture the other person is covered under revenge porn. They can grossly impact the mental health of the victims. One study conducted on 18 women who are survivors of revenge porn found that they have to cope with Post Traumatic Stress Disorder (PTSD), anxiety, depression, suicidal thoughts, and a plethora of other mental problems. 1

Revenge porn is a serious problem faced by the whole society. It is faced by men also but mostly women are targeted when it comes to revenge porn. Nobody in the society should take these problems lightly or ignore these problems because they have a negative impact on the minds of the victims and create a bad perception in society with respect to such victims. If a person is suffering due to an act of revenge porn or knows anyone who is suffering, they should seek help immediately or encourage the victims to take immediate action.

Applicability of laws

There are no direct provisions in Indian laws that deal with offences related to revenge porn, but a few prevalent laws deal with the specific components of revenge porn. Revenge porn generally includes the involvement of digital and electronic mediums. So, it is also classified as an offence committed on the internet and therefore comes under the purview of the Information Technology Act, 2000 (IT).

Section 67 of Information Technology Act, 2000, deals with publishing or transmitting obscene material in an electronic form. The section applies to the act of obscene material being posted by the accused on the public platform using electronic material.. The accused shall be punished the first time with either upto 3 years imprisonment or a fine of up to 5 lakh rupees. In the second and subsequent offence, the punishment is extended to 5-year imprisonment or a fine of up to 10 lakh rupees or both.

In cases of revenge porn, the accused has violated the privacy of an individual or another partner by sharing personal information in a public place without consent. This section applies to the accused who can be punished with imprisonment up to 3 years or a fine of 5 lakh rupees or both. 4 If the victim of revenge porn is a woman, then the penal provision shall apply to the accused under the Indian Penal Code, 1860. Mentioned below are the sections of IPC that deal with revenge porn:

Section 500: Defaming the concerned persons
Section 504: Intentional insult with intent to provoke breach of the peace
Section 506: Punishment for criminal intimidation
Section 509: Word, gesture or act intended to insult the modesty of a woman
Section 354: Outraging the modesty of a woman
Section 354A: Sexual harassment and punishment for sexual harassment
Section 354C: Voyeurism
Section 354D: Stalking

The intentions of the accused in revenge porn are to affect the victim’s reputation, defame her and make the society perceive her in a wrong manner. This is a clear assault on her modesty and the accused can be punished with imprisonment for 2 years or with a fine or with both. 5

Section 509 talks about the punishment of a man who tries to insult the modesty of a woman by words, gestures, sounds or object, intending for it to be seen or heard. Such a person will be punished with imprisonment up to 1 year or fine or both. This provision is applicable in the act of revenge porn because it fulfils two essential conditions: first, there are insults and attacks on the modesty of women and second, there is interference in the privacy of women. 6

The Government has also issued a new intermediary guideline and has given directions to the intermediary companies to remove objectionable and obscene content or material on the platform within 24 hours from receiving complaints from the person or anyone related to the victim of revenge porn. According to the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021, as per rule 3(2)(b), the intermediary shall remove any material, within 24 hours of receiving a complaint from an individual or any person, which shows nudity, private parts of an individual, shows or depicts sexual acts or conduct they need to takeall necessary measures to remove and disable access to that material. 7

Action to be taken by the victims

The first step that shall be taken by the victim, whenever they find material related to revenge porn on the social media platform, is to immediately report that message, video, picture. An option to remove such content is generally given by all intermediaries operating in the country.

The platform on which the material is posted, generally mentions the address of the grievance officer and necessary information related to filing a complaint. The victim should proceed to lodge a complaint and submit the necessary information to the grievance officer of the company. As per the provision of the new IT guideline, intermediaries shall remove content within 24 hours from the date of the received complaint.

Approaching the concerned authority

These matters are very serious in nature and need to be dealt with appropriately, hence the victim should report any incident of revenge porn immediately.. They can approach the nearest police station or cyber cell to lodge a First Information Report (FIR) against the accused.

It is not compulsory for victims to go to the police station to file a complaint. Anyone can approach for filing a complaint on behalf of the accused. This is very helpful for the protection of victims’ privacy.

At the time of filing a complaint, usually victims are hesitant to share information with male officers and prefer sharing such sensitive information with a woman officer. For this purpose, they can write an application to a senior police officer for appointing a female officer for her case but currently there is no official government directions on this matter. 8

Judicial view on the revenge porn

The State of West Bengal v/s Animesh Boxi was the first case in Indian judicial history to recognize revenge porn as a crime. The accused had uploaded intimate and sexual material on a pornography website which was discovered by the victim’s brother; the act was recognized as a particular kind of crime known as revenge porn. The accused was convicted under sections 354, 509 of the Indian Penal Code and sections 66 & 67 of the Information Technology Act. The accused was given a punishment of 5 years imprisonment and a fine of Rs 9000 was imposed. The victim was also provided compensation under the Victim Compensation Scheme. 9

Many High Courts (HC) have also recognized revenge porn as a growing menace, wherein the sharing; allowing objectionable photos or videos on the social media platform without consent is a direct attack on the modesty of women and affects her fundamental right, right to privacy. The courts have said that with the right of privacy is now recognized in India, it also guarantees the “right to be forgotten” to be applied especially in the cases of revenge porn where the victim wants her personal data to be erased from all public sources 10

Others important points to be considered

In most cases, the material or content related to revenge porn is uploaded on adult and pornography websites. The operation of pornography websites is not allowed to run or function in India and the government has blocked many such websites from time to time. However, they can be accessed by people through VPN (Virtual Private Network) and other means. The ways in which victims can approach a website for removing material and other private photos or videos.

There are certain steps followed by the victims who want to remove content put up on adult websites:

1. The victims have to find material or videos on a concerned website then immediately report.

2. They should approach the investigative authority or police. The police or cyber cell can help and take action to delete content or approach the website for taking appropriate action.

3. The victims need to take these steps with the help of a lawyer or person who knows the laws of that country in which country the website company is registered. They can give a written complaint about removing content with reference to that country’s revenge porn laws. This would help to remove content.

Conclusion

The victims of revenge porn are both men and women but it’s mostly women who get targeted. They face many challenges like ridicule by society, violation of privacy and damage to their reputation as well as the reputation of the family, etc. In most cases, women do not report and file complaints against the accused. It is the duty of every person to encourage and enumerate steps to take action against revenge porn. This is a serious issue against women and their right to privacy, as held by many courts. The government has also taken this menace seriously and has taken active steps to bind every intermediary to remove content within 24 hours from the time information is received. The government should implement effective laws to provide compensation to victims and special guidelines for dealing with cases by police officers. This article attempted to give a direction regarding what kind of action should be taken when private photos or videos are leaked, on a public platform and the ways to approach the police and the laws that should apply to revenge porn.

References

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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Cryptocurrency and Indian Taxation Laws

By

Rachit Garg

-

October 30, 2021

0

This article has been written by Sushil Joon from NUJS, Kolkata. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders).

Table of Contents

Introduction

After the imposition of lockdown, a number of people were laid off or their salaries were cut down. As the situation persisted and the demand in the economy sunk to an all-time low, people realized the importance of passive income. Therefore, people started businesses from their homes, delved into the stock market and explored real estate as well. However, people have become particularly interested in investing in cryptocurrency. Despite the fact that cryptocurrency is unregulated in India and its uncertain status, people have been increasingly interested to invest in cryptocurrency. As per reports, more than 15 million Indians have invested in cryptocurrency in 2021.

Despite cryptocurrency not yet being a legal tender and the government still deliberating on the status of cryptocurrency, the hesitation and dissatisfaction among people pertaining to cryptocurrency is steadily decreasing. People are contemplating cryptocurrency as some sort of future currency. However, even after witnessing such enormous growth in cryptocurrency investors, people are worried about taxation provisions on cryptocurrency in India. In the present Article, the author shall discuss the current legal status pertaining to taxation in India. The author further discusses the new cryptocurrency bill that is being deliberated on by the government and the taxation provisions that could follow owing to the nature of cryptocurrency.

Cryptocurrency

Cryptocurrency is a decentralized digital currency that was first introduced in 2009 by Satoshi Nakamoto. It is secured by cryptography, which makes it almost impossible to counterfeit or double spend. Cryptocurrencies are decentralized networks based on blockchain technology – a distributed ledger enforced by disparate networks of computers. Thus, the word cryptocurrency is derived from the encryption techniques which are used to secure the networks. As cryptocurrencies are not regulated by any central authority/ government, it renders the cryptocurrency immune from any governmental manipulation.

Cryptocurrency has allowed for secure payments over the internet and is denominated in terms of virtual tokens which are represented by ledger entries internal to the system. Thus, various encryption algorithms and cryptographic techniques are used to safeguard these entries such as elliptical curve encryption, public-private key pairs, and hashing functions.

The first cryptocurrency introduced was Bitcoin and which is also the most popular and most valuable. Over the years, other types of cryptocurrencies have also been introduced in the market such as Etherium, Litecoin, Carnado etc.

Current Legal Status of cryptocurrency in India

In 2018, RBI forbade banks from dealing in cryptocurrencies. However, in 2020, the Supreme Court reversed the ban imposed by RBI. Therefore, cryptocurrency, though unregulated, is not illegal in India. After the massive surge of cryptocurrency investments, although the government is still contemplating the legal status of cryptocurrency in India, there are still no laws in the country to regulate cryptocurrency transactions. Therefore, there are no fixed laws that are applicable to gains made on cryptocurrency investment. However, even though the government has a dubious stand over the issue and the government is still deliberating on bringing the cryptocurrency investors under a tax regime, the profits made through crypto investment have to be disclosed.

The Ministry of Corporate Affairs has made it mandatory for the companies to disclose cryptocurrency trading/investments during a financial year. Moreover, the Central Board of Direct Taxes (CBDT) has already announced that people who made money out of bitcoin must declare and pay the relevant tax.

Furthermore, the deliberation over cryptocurrency culminated when Finance Minister tabled a cryptocurrency regulation bill in Parliament. Although nothing is certain as of now, this is a positive step in the right direction. Although many authorities are in favour of abolishing the cryptocurrency altogether, there might be some kind of regulator and tax rate slabs.

Cryptocurrency Regulation Bill

The government of India has been deliberating to introduce a bill in order to regulate and tax cryptocurrency transactions in India i.e. “Cryptocurrency and Regulation of Official Currency Bill, 2021” (hereinafter referred to as the new bill). However, there has been no further development on that. According to reports and leading newspapers, considering the huge spike in the popularity of cryptocurrency investment, the government has dropped the idea of a blanket ban on trading and investment in cryptocurrency. Instead, the government is looking forward to harnessing the new possibilities of economic growth and taxation offered by digital currency and blockchain technology. The honourable Finance Minister Nirmala Sitharaman has also announced that the government is considering the prospects of using blockchain technology to usher in a new dawn of the digital economy.

Although the new bill has been in the news for some time now, the contents of the bill remain uncertain. However, it is expected that the government would give a definite meaning and definition as to what qualifies as cryptocurrency and thus will set a benchmark standard for the inclusion of cryptocurrency assets. Depending upon the definition of the cryptocurrency, the government might treat it as a capital asset or as an additional income and levy tax accordingly.

Despite the huge surge in popularity of cryptocurrency as a digital currency, the RBI and government has taken a firm stand that would not accept cryptocurrency as legal tender and no payment or settlement as such can be done through cryptocurrency. However, the new bill might enable RBI to create a cryptocurrency equivalent to that of the country’s fiat currency i.e. Central bank Digital currency (CBDC). The RBI has been recently working on the CBDC project. Therefore, it is likely that cryptocurrency might be treated as an equivalent of fiat currency, subject to the bill passed by the parliament before the completion of the CBDC project.

Cryptocurrency might seem to be the future currency, but it is still in the nascent stages. A lot of innovation is yet to take place in the realm of cryptocurrency and blockchain technology, which will leave a lot of grey areas in the new bill. However, such uncertainty might prove to be good for innovation and might also lead to changes in taxation policy over the years.

The introduction of the new bill will simplify the process of trading and holding cryptocurrency in a safer technological environment. Furthermore, the regulations accompanied by such a bill will also help in curbing illegal activities and the circulation of black money via cryptocurrency. It would also help to improve the functioning of corporate governance with increasingly transparent disclosures.

Cryptocurrency and Taxation

The government has specified that the gains made through cryptocurrency have to be disclosed. However, neither the Income-tax act, 1961 or the Central Board of Direct Taxes (CBDT) stipulates any specific tax treatment for income earned through investment in cryptocurrency. Therefore in the present section, the author will discuss how the cryptocurrency can be taxed under various heads of income.

The gains made from cryptocurrency can be broadly divided into 3 categories i.e. (i) Capital gains, (ii) income from business or profession, or (iii) income from other sources depending on how an individual holds the cryptocurrency and can be taxed accordingly:

Capital Gains: The IT Act does not include any provision for cryptocurrency. However, the definition of capital gains in the IT act is quite inclusive. According to Section 2(14) of the IT Act, “capital assets include property of any kind held by an assessee, whether or not connected with his business or profession.” Although the section contains certain exceptions, cryptocurrency does not fall among them. As cryptocurrency is a digital asset, it can be considered as a capital asset similar to shares.

The capital gain on an asset is calculated as the difference between the selling price and the cost of acquisition, sale consideration and expenses. As the cryptocurrency is stored in a digital wallet and is mutually exchangeable, it becomes increasingly difficult to determine the cost of acquisition on being purchased and sold. In such a case, the taxpayer should prefer to adopt the first- first-out method to determine the cost of acquisition.

The cryptocurrency bought and sold for the Indian rupee can be directly taxed, subject to indexation benefit. However, the problem arises when cryptocurrency is bartered with another. Such barter is an exchange and is liable to be taxed as capital gains. The taxpayer shall be necessitated to report such transactions and pay taxes on each disposal. However, what if cryptocurrency investors incurred losses owing to the volatile nature of currency? In such a case, the investor can set off such losses against gains from the sale of other assets.

Income from business or Profession: Cryptocurrency can also be utilized for business income. Similar to investment companies who speculate short-term price movements and hold and sell the shares/debentures/securities frequently and make gains on them, cryptocurrency can also be utilized to generate business income. Speculation of prices of cryptocurrency and holding to cryptocurrency as stock in trade and income made therein shall be considered as business income. Such income shall be taxed as business income and can be treated on par with investment companies.

Taxpaying authorities can further classify such income as speculative income based on certain considerations such as, whether cryptocurrency is used as a commodity and periodically or ultimately settled otherwise than by way of actual delivery or transfer of such commodity.

Income from Other sources: Apart from trade in cryptocurrency, income can also be accrued by mining and receipt of cryptocurrency in the form of gifts. These transactions can be taxed under Income Tax Act.

Mining: Since cryptocurrency can be considered a capital asset, mining cryptocurrency can be considered a self-generated asset. However, according to the current provisions of the IT Act, it is quite uncertain how the mined cryptocurrency can be taxed. As per Section 55, certain self-generated assets can be taxed. However, the cases not mentioned in Section 55 shall not be charged as per the rule laid down in the case of CIT v. BC Srinivasava Shetty. The court, in this case, held that when it is not possible to visualize the cost of acquisition, the gains thereon cannot be charged.

In the case of mining cryptocurrency, although no investment is required, it takes a lot of time and effort to mine cryptocurrency. Therefore, cost of acquisition cannot be ascertained. However, the government can introduce a new provision under the Cryptocurrency regulation bill or amend Section 55 to tax mined cryptocurrency.

Gifts: Gifts are classified as income from other sources. Gifts received either in cash or in-kind are taxable if they are beyond the amount of Rs. 50,000. Therefore, cryptocurrency received as a gift worth 50,000 and above can be taxed as per the standard tax rate.

Way Forward

Cryptocurrency has been gaining popularity all across the world and in response to that, many countries have formulated a taxation system for cryptocurrency gains. El Salvador even declared Bitcoin as its legal currency. However, India’s frigid response to the new digital currency ecosystem has made it increasingly harsh for cryptocurrency investors to file their returns. As the Indian’s government’s stand remains dubious pertaining to cryptocurrency transactions, many Indians have been shifting to foreign platforms for accessing digital tokens by buying and selling cryptocurrency as they provide better features and customer services. If the Indian government brings in requisite legislation and regulations through a new cryptocurrency regulation bill, it can pull back the business to domestic cryptocurrency exchanges.

The new regulation bill providing legitimization to the cryptocurrency can help to enhance India’s revenue and can also level the playing field for domestic cryptocurrency exchanges. India can also use blockchain technology to make transactions more transparent and usher in a new dawn of digital transactions. Furthermore, the legitimization of cryptocurrency will give investors more confidence to invest in the sector and this will further provide the government to tap the potential of untaxed cryptocurrency. It can prove to be a massive source of revenue for the Indian government which is currently burdened with a fiscal deficit. As remarked by Mr. Patel, “The government realizes the importance of employment opportunities in the several new start-ups that have sprawled up around the crypto ecosystem. The government should likely focus on creating a robust taxation framework that is easy to understand and simple to implement.”

Conclusion

Cryptocurrency has become a huge market for India since the inception of a pandemic. According to Chain analysis, Indians have parked approx. $6.6 billion in cryptocurrency in May this year as compared to a mere $293 million in April 2020. As cryptocurrency is still unregulated in India, it raises serious concerns for investors as well as the government. Therefore, it is high time to introduce regulatory and taxation laws for cryptocurrency. This will help to alleviate some burden from investors and at the same time the government by taxing the cryptocurrency can increase its revenue sources and take advantage of the blockchain technology at the same time. However, as the cryptocurrency is all about ‘no regulating authority, the government may still be unsure about the prospects of regulating it. What the government has to consider at this point is how not to undermine its own authority from the perspective of the regulator and simultaneously allow investors to join the space.

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

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A study of cybercrimes against women and girls during COVID-19

By

Abanti Bose

-

October 30, 2021

0

This article is written by Poornima Animi, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The usage of the internet has increased during the lockdown period throughout the world. With nowhere to go, people are at home. The use of social media is at an all-time high, with the majority being from the younger generation i.e Millennials and Gen Z. With limited digital literacy, people are finding it hard to navigate through daily life. Cyber harassment of gender minorities and minors has been a major issue during this time. In the case of minors, this also stems from the fact that they are not aware of their rights in cyberspace even if they are proficient in using the internet. In certain cases, they may also fall victim to cybercrimes such as cyberstalking, cyberbullying, child pornography, etc. This article discusses these crimes, with special reference to cybercrimes against women and an increase of the same during COVID-19. This article will also shed light on the Information Technology Act, 2000 with important steps that can be taken to prevent cybercrimes.

What is cybercrime?

Cybercrime refers to criminal activities conducted via the Internet or otherwise facilitated by computer technology, such as using online social networks to harass people or share sexually explicit photographic files. Although cybercrime is a new problem, many of the same offences that may be done with a computer or smartphone, such as theft or child pornography, were perpetrated in person prior to the computer era. This paper contains information about catfishing, stalking, child pornography and a variety of other crimes committed online.

Types of cybercrimes committed against women

Cyberstalking

Cyberstalking is one of the most common crimes committed by cybercriminals. Stalking refers to an attempt to contact/trace a person through their online details without their consent or post refusal to reveal said information. This is done through e-mails, mailing lists, hacking of personal data, picture searches etc. For the sake of understanding, we will be categorizing stalking in three ways namely email stalking/internet stalking, intimidation and physical stalking.

Sending objectionable material: Sending obscene material, messages, photos continuously to harass the victim through emails/ social media profiles/ messaging apps.
Intimidation: Publishing obscene material in order to blackmail, intimidate or ‘outrage the modesty’ of a woman. In such scenarios, section 354D of the IPC may be used against the criminal.
Physical Stalking: Using the aforementioned means, criminals may also gain access to personal information like place of residence, place of work, the usual mode of transport which may later lead to physical stalking.

Revenge pornography

Revenge pornography is an illegal act that involves publishing, transmitting, creating or displaying obscene material related to a woman on the internet. The use of photoshop has added a whole new dimension to the issue. Morphed pictures and videos with the victim’s contact details are published on the internet which not only tarnishes their reputation in society but also affects their future. An increase in unwanted advances from miscreants is also noticed after such incidents.

Cyberbullying

Cyberbullying is bullying that takes place via the use of digital technology. It may occur on social networking sites, chat systems, gaming platforms, and mobile phones. It is intended to frighten, enrage, or shame people who are targeted. Mainly teenagers between the ages of 14-18 years are bullied by cybercriminals. Some of the types of cyberbullying are as follows:

1. Catfishing: Using a made-up or stolen ID to deceive other users. This is often a method employed by scammers to form a deep emotional relationship with users in order to use emotional attachment for unlawful purposes. This may often lead to ‘Trickering’ which involves gathering personal information like personal photos, documents and bank information of the users, often used to further blackmail those persons.

2. Frapping: when a person leaves their social media profile signed in and unattended, leaving it open for another person to edit their status update in a humorous or embarrassing way. This may sound harmless but can also lead to major issues when these changes are made by someone attempting to bring harm to one’s reputation.

Child pornography

Publishing, creating, viewing or displaying any obscene material involving children engaged in sexual acts is illegal in India and constitutes a serious cybercrime. Most children between the ages of 14-18 years fall prey to child pornography.

Punishment of cyber crimes against women and girls

For easy access, here is a list of punishments for cybercrimes against women and children.

Indian Penal Code,1860

Prior to 2013, there was no specific law for crimes against women through the internet. But, in the year 2013, the criminal amendment act added to the Indian Penal Code,1860 included certain sections related to cyber crimes against women under sections 354A to 354D:

Section	Term of punishment
354A – Committing acts like demanding sexual favours, showing pornography without the will of women or making sexually coloured remarks	Rigorous imprisonment extended up to 3 years or with fine or with both.
354C – Commits ‘voyeurism’ defined as capturing images/ videos of women engaging in private acts and disseminating such material without her consent.	Imprisonment up to 3 years +fine for first conviction 3 to 7 years+fine for second and subsequent convictions.
354D – Cyber Stalking	Imprisonment up to 3 years +fine for first conviction 3 to 7 years+fine for second and subsequent convictions.
499 – Cyber Defamation	Imprisonment extended up to 2 years or with fine or with both.
509 – Outrage of women modesty	Imprisonment up to 3 years +fine

Information Technology Act, 2000

According to the Information Technology Act,2000 and its amendment, there are some of the sections talks about punishments of cybercrimes are as follows:

Section	Term of punishment
66C – Identity theft	Imprisonment up to 3 years +fine may extend to one lakh rupees.
66D – Cheating by impersonation using computer resources or communication devices	Imprisonment up to 3 years +fine may extend to one lakh rupees.
66E – Violation of the privacy of a person	Imprisonment up to 3 years or with a fine not exceeding two lakh rupees.
67 – Publishing obscene material through electronic form	Imprisonment up to 3 years +fine which may extend to five lakh rupees for first conviction 3 to 5 years+fine which may extend to ten lakh rupees for second and subsequent convictions.
67A – Publishing sexually explicit material through electronic form	Imprisonment up to 5 years +fine which may extend to five lakh rupees for a first conviction 5 to 7 years+fine which may extend to ten lakh rupees for second and subsequent convictions.
67B – Publishing sexually explicit material through an electronic form that depicts children	Imprisonment up to 5 years +fine which may extend to five lakh rupees for a first conviction 5 to 7 years+fine which may extend to ten lakh rupees for second and subsequent convictions.

How to register a complaint using the National Cyber Crime Reporting Portal?

Most women, at some point in time, have been victims of cybercrimes. But, they often do not file a complaint against that crime due to fear of social retribution or lack of awareness. The Government has initiated a National Cyber Crime Online Portal to file complaints against criminals. Such complaints may also be filed anonymously. The Government initiated this portal to create awareness about cybercrimes and also give complaints without any fear.

National Cyber Crime Reporting Portal

Government commissions and schemes that create awareness about the cybercrimes against women and children are as follows:

• National Commission for Women,

• Cyber Crime Prevention against Women and Children.

Steps to be taken to avoid cybercrimes

Avoid the mails which are unknown to you

You can find an entire series made by comedian James Veitch on YouTube about how spammers trick people and con them into believing that they have won lotteries or have been contacted by a famous person who needs money as a favour and is ready to pay a fortune in return for this small favour. His witty anecdotes are not only entertaining but also warn us against replying to emails that do not come from a familiar source.

Use two-step verification

Generally, people tend to use a single step verification for emails, WhatsApp, Facebook, etc., This verification is very easy to break through. Two-step verification gives you more protection than single-step verification. This not only protects you from hacking but also acts as a warning system in case someone whom you don’t know tries to log into your system. If anybody uses your emails, WhatsApp, Facebook, etc account from another device, it immediately warns you and asks you to verify the login activity.

Be aware of fraudulent links and websites

One must be cautious about the files, links and websites they access through their device because there are a lot of fake websites out there which intend to collect personal information or hack your computer using malware. A quick way to verify this is to cheque whether the website link starts with “https://” or not. If the website starts with “https://” then it is the original website. Sometimes we see the website starts with “http://” this is not an original one. Often this link also indicates whether the website is protected i.e whether the information entered in the website is being used for illegal purposes. We must use official websites with credible domain names. Some of the credible domain names are .com, .edu, .in, .gov, etc., however, please note that this list is not exhaustive.

Make strong passwords

Using the same password for multiple social media platforms can be a major threat to your cyber safety. If any of the passwords is compromised, all the accounts automatically get compromised.
Use strong passwords with a minimum of 8 characters consisting of upper and lower case letters, numbers and special characters. Don’t use your personal information like name, date of birth, nicknames, years etc. as your password. It is advisable to change user credentials every 90 days.

Update your security systems

You must keep an eye on your operating systems and antivirus software. You must update your systems and anti-virus software in regular intervals with authorised software tools like Norton, K7 antivirus software etc. Software updates have many benefits; it keeps your data secure and antivirus companies make it a point to fix many glitches and safety loopholes with each update.

Using antivirus software in itself is extremely useful as it not only keep your private data secure but also helps in improving the functioning and maintaining of your computer.

Storage of personal data like email usernames, passwords, bank accounts, aadhar numbers etc., in our smartphones, lures us into a false sense of security. It is essential to remind ourselves about the dangers of cyberspace.

Conclusion

Although cyber crimes against women and children have become a common phenomenon, they should not be normalised. India is one of the few countries to enforce an act for the prevention of cyber harassment, however, its execution is not good enough. Along with the responsibility of people to keep themselves safe, we must also note the responsibility of the government to make sure that the criminals are punished and the victims are put to justice. In crimes where marginalised communities and minors are targeted, awareness and employment of good legislation are irreplaceable.

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An analysis of comparative study between Energy and Environmental Law

By

Rachit Garg

-

October 30, 2021

0

nuclear-energy-power — Image source - https://bit.ly/3yLv76T

This article has been written by Shivangi Prakash & Aditi Yadav from Amity Law School, Noida. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders).

Table of Contents

Abstract

For many years an obvious connection between energy consumption and production and nature has been ignored. There was very little in common between the laws that govern energy and the protection of nature. Environmental law provides the legal framework for the regulation, principles, and policies for environmental protection. Whereas energy laws are concerned with the undisrupted supply of energy. The research paper has four basic aspects- (i) from where energy is derived, (ii) impact on the environment of energy production, (iii) India’s energy and environment policy, and (iv) relationship between energy law and environmental law. The paper addresses the critical question of climate change with energy generation.

Introduction

What is the environment?

The word “environ” comes from the French word “environner,” which translates “to surround.” The term “environment” refers to all of a person’s surroundings. All manmade and natural environments are included in these surroundings. The natural environment includes things like air, water, lakes, plants, mountains, and so on. Man-Made environment, on the other hand, refers to man-made environments such as buildings, highways, parks, bridges, monuments, gardens, and so on.

According to Section 2(a) of Environment Protection Act, 1986, “environment includes Water, Air & Land, and the inter-relationship which exists among and between Water, Air, and Land & Human Beings, other Living Creatures, Plants, Micro-Organisms & Property”

What are environmental laws?

Environmental law can be defined as a legal framework, which includes directives, principles, policies, and regulations, put in place by numerous regional, national, and international bodies to maintain and safeguard the environment for the present and future generations.

As per the Black’s Law Dictionary, environmental law could be defined as, “collective body of rules and regulations, orders and statutes, constraints and allowances that are all concerned with the maintenance and protection of the natural environment of a country”

As per the definition of the Free Legal Dictionary, “environmental Law is, “an amalgam of state and federal statutes, regulations, and common-law principles covering Air Pollution, Water Pollution, hazardous waste, the wilderness, and endangered wildlife”.

What is energy?

With the increased awareness of climate change, energy, and the resources it is sourced from have become a critical concern.

The major plan is to replace nonrenewable energy sources with renewable energy sources and to limit human consumption to the point where resources may be preserved for coming generations. The essence of this goal for sustainable development is that it is more of a long-term goal than a short-term one.

Mr. Jairam Ramesh, India’s current Minister of Environment and Forests (MoEF), has promised that renewable energy will account for 20% of the country’s energy consumption.

What is energy law?

Energy law is a branch of law that regulates the use and taxation of renewable and non-renewable energy sources. Rules, regulations, cases, legislation, and ordinances relating to energy are all covered by energy laws.

Energy Law also deals with enacting, enforcing, and challenging regulations that govern the usage of energy. As a result, such laws exist to regulate the development and harvesting of energy. The taxation of energy use is likewise governed by these rules.

Energy regulations governing the sale, usage, and conservation of energy resources must be navigated by both energy companies and the general people.

Energy law is not an autonomous branch of law in our country, but rather a subset of commercial law. It is a relatively new lawful practise that arose from the oil law of Anglo-Saxon nations in the last three decades of the twentieth century as a branch of international commercial law that is also linked to international environmental law.

Where energy comes from?

Energy in India can be split between four basic uses:

(1)commercials, for example, in workplaces, shopping centres, clinics, and inns;

(2) industrial, for example, in assembling, development, and horticulture

(3) residential, for example, in homes and condos and

(4) transportation, for example, in vehicles, trucks, rail, and planes.

Oil, coal, and natural gas are the most common energy sources. Petroleum is still the main source of energy because it is still the main fuel for motor vehicles. Coal, on the other hand, is mostly used to generate electricity; however, Coal remains India’s most important fossil fuel, accounting for approximately 75% of power output and 43% of primary fuel consumption. In recent decades, the use of natural gas has increased and has multiple uses, including powering various household appliances (such as stoves and water heaters) and “peaker” power plants, which are more easily dispatchable than “baseload” power plants that run continuously and are thus used to generate electricity during “peak” or high-demand hours.

Oil, coal, and natural gas are the result of changes in heat and pressure during the decomposition of plants and animals hundreds of millions of years ago. All three of these resources can be found somewhere on the earth, sometimes deep below, sometimes on the bottom of the sea, sometimes on the top of a mountain, and must be mined from these places before they can be used. In other words, we must drill and dig for these resources. These resources are also nonrenewable. Oil, natural gas, and coal are all gone once we use them.

There are also two other sources of energy that can be used to generate energy. The first is nuclear energy, which has a lot of sceptics, especially following the Japan incident. There are also several renewable energy sources such as wind, solar, and hydropower.

In India approx. 3.2 percent of the total power generated is derived from nuclear energy. About 40 billion kilowatt-hours of nuclear electricity are generated across India. Most nuclear power plants use a type of uranium, U235, as the substance that splits atoms when electricity is generated. U235 is “relatively rare”, but can be found in rocks all over the world. This means U235 must be mined like coal. However, unlike coal, uranium has to go through a technological and chemical-intensive process before it can be used in nuclear power plants.

Renewable sources of energy include wind energy, hydropower, solar, plant biomass. Wind energy, solar energy, small hydropower, and biomass energy currently account for 38.68 GW, 38.79 GW, 4.7 GW, and 10.14 GW respectively. The advantage of these energy sources is that they do not deplete the energy-generating resources. For example, the wind is generated by a wind turbine, and the blades of the wind turbine move when the wind blows, thereby generating electricity. Likewise, geothermal energy uses heat from the center of the earth to heat water, which is then used to heat buildings or generate electricity. Many waste power plants operate with a total capacity of 168 MW. The biogas and biomass programs aim to use more biowaste to generate energy.

From the data mentioned above, it can be observed that all the sources of energy depend on natural resources. We pump or dig these resources from the earth and utilize it to generate electricity. We also use sunlight, wind, earth’s heat, or the flow of rivers to generate electricity. Energy is therefore not a miracle product. Instead, whenever we generate energy, the core component is part of nature. More importantly, because most of our energy comes from non-renewable sources, we are not simply using nature but we are consuming nature.

Environmental impact of energy production

Non-renewable energy sources—coal, oil, and natural gas—have a series of environmental impacts. These are mainly the result of the emission of harmful pollutants into the air due to the burning of these fuels, but they also have an impact on the land and water.

The biggest concern at this point is that the burning of coal, oil, and natural gas produces a huge amount of greenhouse gas emissions. Coal and oil emit large amounts of carbon dioxide. In addition, the extraction of natural gas causes transient emissions of methane that have a much greater impact on the environment than carbon dioxide. In terms of per capita greenhouse gas emissions, India remains at the bottom half of the scale which is at 140th place, with approx. 2 tons per capita CO2 equivalent emissions in 2019. The Washington Post predicts that India’s absolute emissions will increase due to urbanization, industrialization, and increased car penetration.

In addition to the impact of climate change, the combustion of these fuels also produces nitrogen oxides, sulfur dioxide, and particulate matter, which are harmful to humans and the environment. For example, nitrogen oxides and sulfur dioxide emissions react with atmospheric gases to form acidic compounds, which eventually lead to acid rain. Particulate matter is related to various respiratory and cardiovascular diseases, plant growth problems, smog, and other visibility problems.

The environmental impact of coal mining, especially mountaintop mining, has become the subject of numerous lawsuits and has become the focus of recent efforts by the Environmental Protection Agency because of its impact on water quality.

The extraction of natural gas and oil produces many harmful by-products. “Produced water”, which usually contains harmful substances such as metals, hydrocarbons, and other organic substances, therefore it is necessary to treat it before being discharged into bodies of water. Most refineries generate air, water, and solid waste that must be disposed of according to different environmental laws. Also between extraction and combustion of fuel, the oil is refined, and this process of refining also has a variety of effects on the environment.

Compared to fossil fuels, nuclear power has obvious advantages in climate change because it emits very little, which is why some consider it a cleaner source of energy. Unfortunately, the disaster in Japan vividly illustrates the many effects that nuclear power can have on the environment when radioactive materials enter the environment.

Renewable resources are widely regarded as the most environmentally friendly source of energy, but it is not without an environmental impact. Solar, wind, and hydropower require more land area than coal or gas power plants. Hydropower requires the construction of a dam and also setting aside space for a reservoir behind the dam. These reservoirs cover important natural areas, agricultural land, and archaeological sites, and cause people to relocate. The impact of the dam is more far-reaching. The dam will interrupt the migration of fish, especially those that lay their eggs upstream. In addition, the operation of reservoirs and dams will also change the natural water temperature, chemical composition, flow characteristics, and silt load, all of which can lead to significant ecological (biological and environmental) and physical changes. Wind power also consumes land area.

The biggest environmental problem of wind turbines is their impact on flying species, especially bats and birds that are at risk of extinction. In addition, large solar installations also cause environmental problems. First, birds and insects can be injured or killed by flying in concentrated sunlight. Secondly, solar panels can cause harmful habitat disturbance, especially when the facilities are not properly designed, which can damage the surrounding ecosystem.

In short, all power generation options have environmental consequences. Some power generation options, such as coal-fired power plants and gasoline-fueled cars and trucks, are more destructive, especially when it comes to climate change. However alternative energy is not without its environmental impact. Therefore, the question is how we develop an energy strategy that takes into account our energy needs and the environmental impact of each energy source. Since all energy starts as a kind of natural resource and then is converted for energy production, it will produce by-products that affect nature, therefore it is significant to try to balance the impact of energy production on the environment.

India’s energy policy

The country’s energy policy is largely determined by the country’s growing energy deficit and rising emphasis on the development of alternative energy sources, particularly nuclear, solar, and wind. In 2017, India achieved overall energy self-sufficiency of 63 percent.

After China and the United States, India has had the world’s third-biggest overall primary energy consumption since 2013. After China, India is the world’s second-largest coal consumer in 2017.

After the United States and China, India ranked third in terms of oil consumption in 2017, with 221 million tonnes. In 2019, India would be a net energy importer, importing about 47 percent of its total primary energy.

India’s primary energy consumption increased by 2.3 percent in 2019, putting it third in the world behind China and the United States with a 5.8% share. [4] [5] In the calendar year 2018, total primary energy consumption totalled 809.2 Mtoe (million tonnes of oil equivalent), which includes

Coal (452.2 Mtoe; 45.88 percent )
Oil (crude) (239.1 Mtoe; 29.55 percent )
Gas (natural) (49.9 Mtoe; 6.17 percent )
Nuclear power (8.8 Mtoe; 1.09 percent )
Hydroelectric power (31.6 Mtoe; 3.91 percent
Renewable energy (27.5 Mtoe; 3.40 percent) (excluding traditional biomass use).

India is one of the world’s fastest-growing energy markets, and it is predicted to become the second-largest contributor to the rise in global energy demand by 2035, accounting for 18% of the increase.

Given the country’s expanding energy demands and limited local oil and gas sources, India has huge ambitions to increase its sustainable energy and nuclear power projects. India has the fourth-biggest wind power market in the world, with ambitions to build 100,000 MW of solar generating capacity by 2022.

Within 25 years, India wants to raise nuclear power’s contribution to overall energy generation capacity from 4.2 percent to 9 percent.

India‘s climate policy is based on two pillars, first is the National Action Plan on Climate Change (NAPCC) which was launched on June 30, 2008, and the second is the INDC submitted to the UNFCC. NAPCC focuses on planning at the national level. At the same time, INDC is India’s declaration of intent and a global commitment announced at the Paris Climate Change Summit.

NAPCC addresses India’s pursuit of environmentally friendly development and the steps it will take to achieve this goal. It recognizes the importance of climate change and energy stability. India is on the path of its energy transition, which describes a successful transition from its current dependence on fossil fuels to green and clean energy. Such measures will improve India’s energy security and help reduce the risks of climate change. The INDCs integrate the top-down device of a United Nations climate agreement with the bottom-up system, through which nations propose agreements based on their national capacities, conditions, and priorities to reduce greenhouse gas emissions.

Many states have also begun to enact and develop their State Action Plans on Climate Change. Uptill now, 33 states and territories have established SAPCC to deal with climate change issues in their planning processes. SAPCC builds on current state government policies with the consideration of ongoing plans and projects at the state and NAPCC levels. SAPCC focuses on the state-by-state assessment of the vulnerability to climate change and related threats and the impact of climate change. SAPCC should recognize adaptation and mitigation strategies that will reduce the country’s vulnerability in the short, medium, and long term.

National Mission on Electric Mobility– India has developed a national road map to accelerate the adoption of electric vehicles and their manufacturing, to achieve 30% of electric vehicles by 2030. Under the National Mission on Electric Mobility, in April 2015 the Faster Adoption and Manufacturing of (Hybrid &) Electric Vehicles (FAME) scheme were launched to promote, manufacture, and sales of EVs. Until May 2021 under the FAME Scheme, the EVs sale had reached 73,269. This had resulted in (i) saving 19 million litres of fuel and (ii) reducing 47,712 tons of carbon dioxide. Maharashtra is currently leading the adoption of electric vehicles, followed by Rajasthan and Delhi.

Developing a hydrogen strategy- The government of India has recently announced that it will soon launch a new hydrogen energy mission and a new roadmap for the country. Its objective will be to promote the development of green hydrogen technology and promote the commercial application of hydrogen in transportation, power generation, and industry. A pilot project has been launched by Indian Oil Corporation Limited (IOCL) to test hydrogen-enriched compressed natural gas (HCNG) for transportation applications. In terms of reducing emissions, H-CNG is more environmentally friendly than CNG and has shown promising results and. Other oil companies, such as Hindustan Petroleum and ONGC, are also studying hydrogen technology. “Green” hydrogen has the potential to reduce pollution. The Energy Research Institute (TERI) has predicted that by 2050 the share of green hydrogen will reach 80%.

Taking the International Solar Alliance forward- As of January 2021, 89 member states have signed the ISA framework agreement, of which 72 member states have submitted ratifications. India and France have jointly launched two new initiatives: the “World Solar Bank” and the “One Sun, One World, One Grid Initiative”.

Strengthening bilateral climate partnerships- India is taking a firm step in mitigating climate risks by establishing partnerships with like-minded countries. For example, India’s alliance with the United Kingdom accelerates the production, consumption, and distribution of green energy, including green hydrogen; protection of forests; and the development of resilient infrastructure for climate-vulnerable countries. The EU Smart Cities Knowledge & Innovation Program has expanded its support for India’s smart city mission. The European Investment Bank has funded approximately 2 billion euros for the implementation of metro projects.

Relationship between Energy and Environmental Law

The effect that the field of energy, i.e. subjects of energy, have on the environment reflects the relationship between energy and environmental legislation. The reality is that energy operations (creation, transportation, use, and conservation) disrupt the environment regularly.

The relation of energy use and the negative impacts that these actions get during normal operating conditions, which are occasionally accepted for financial or other causes, but may have long-term negative consequences. On the terms, origins, and ideas of these two bodies of law, the connection between energy law and environmental law is examined.

The task of environmental and energy law is extremely distinct. They have various goals: energy laws, financial growth; environmental policy, conserve resources, and protection of public health.

Energy legislation assures plentiful supply at a reasonable price, which means a competitive market pricing under today’s federal regulations. Environmental laws are designed to protect humans and environments from the most immediate and significant harms while also reducing the risk of other harms and risks to public health and the environment, typically while evaluating the benefits and costs of doing so.

Environmental laws frequently seem to be doing treatment; they are the comparison of an ER or Urgent Care reaction to environmental problems.” Similarly, whether it’s Enron or climate change, energy law is frequently playing catch-up with the newest disaster. Ultimately, energy and environmental laws are mostly concerned with the short to medium term. Although environmental law was intended to make civilization more sustainable, it frequently fails to consider coming generations.

Despite their divergent objectives, environmental and energy legislation share certain parallels. They’re both divided, each focused on a different aspect of the environmental and energy issue. They’re both reactive in their approach.

Conclusion

When analyzing the laws of one area of law with those of another, it is concluded that the legal acts that govern the domain of energy highlight the need to follow environmental regulations, indicating a link between the two fields of study.

In this respect, when the appropriate government makes decisions relating to one of the aforementioned domains, it must keep in mind, i.e. consider laws from another area as well, indicating the necessity for a holistic approach.

Undoubtedly, the energy sector is not the sole cause of pollution in the environment, but the overall impact of primary and secondary sources of pollution in this sector, which are the result of the need for energy production and consumption, is not insignificant.

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

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

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Judicial process and interpretation of statute

By

Diva Rai

-

October 30, 2021

0

This article has been written by Priyanka Sharma pursuing LLB from Symbiosis Law School, Pune and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

The judiciary play a crucial role in interpreting the Constitution’s provisions. The court serves as the sole interpretator, protector and caretaker of the Constitutional’s supremacy. The judiciary must play a crucial role in interpreting and enforcing the country’s human rights, which are codified in the country’s fundamental law. As a result, it is important to understand the judiciary’s approach to constitutional interpretation, and a judiciary must formulate realistic wisdom after adopting an innovative and purposeful approach to the interpretation of various constitutional rights.

The issue arises if more time has elapsed for such laws to become outdated and no longer relevant this is where judicial imagination comes into play. The spirit of the law that is applicable to the moment and, more importantly, relevant to the facts of the case is given interpretation by judges using their knowledge and natural sense of justice.

The Judicial system experienced a revolutionary change in terms of abandoning its conventional approach and establishing a new frontier of diverse judicial activism with many aspects and dimensions, paving the way for an activist liberal judicial mechanism based on the Constitution.

Statement analysis

As a casual observer, many consider law to be the laws and regulations enacted by the government. Judicial creativity can be viewed as the flexible part of the law. As when required the laws are not been rigid and judgments are delivered on the basis of the facts by the judges using their wisdom.

The courts in Kesavananda Bharati exercised their creativity to ensure that the foundations of the constitution are preserved and that the ultimate goal of democracy is preserved by creating a basic structure doctrine. The constitutional rights, judicial review, and other aspects of our Constitution is embodied in this doctrine.

Validity

At times the validity of the decisions might be questioned. When the society revolts against the judiciary’s judgments, the issue of the judiciary’s legitimacy arises, since it lacks common approval. That is why renowned legal scholars have advised the judiciary to exercise extreme caution when ruling legislative acts unconstitutional. The judicial override must only be used in situations where there is “no space for reasonable doubt.”

No legislature can predict future events with a fair degree of accuracy, and any enacted statute will inevitably expose some holes that the judiciary will be required to fill. This is referred to as judicial legislation. Although acknowledging this self-evident fact, Justice Oliver Wendell Holmes observed:

“… I recognise without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.”

In the case of Seaford Court Estates Ltd. v. Asher, According to the judge the people who have made the law cannot be blamed for not making laws required to the current situations but the laws can be introduced or altered keeping the basic structure the same as when required on the basis of the facts of the case.

Like it was done in this case when the landlord proved the valid reason to increase the rent of the apartment as he was providing the extra facilities to the tenant.

Language of interpretation

The term “judicial interpretation” might refer to many different things. This word applies to any idealisation of a normative concept to a norm-formulation in its broadest sense. When interacting with legal words and language, this sense of “interpretation” is making the use of the language in a particular context.

The English language is technical jargon and interpretation becomes difficult.
Many legal interpretation issues occur as a result of a misalignment seen between structure of our universal grammar and the objectives of a context in rule of law.

This conflict is an unavoidable result of the human experience. To add to the linguistic intrigue, the legislation has been known to incorporate linguistic concepts as constitutional concepts in order to overcome linguistic vagueness.

With so many moving pieces, it’s no surprise that the legal system struggles to overcome linguistic ambiguity. The fact that judges have started to include linguistic context to analysis in their array of interpretive resources should be beneficial to the linguistic system.

Indian perspective

In India, the concept of judicial creativity has been implied as the judges have been delivering the judgments in the spirit of laws and interpreting them in context of the facts. The judges are using their wisdom and natural sense of justice and not just the literal meaning of the stated law. It is very important to do so or else it would be difficult to make the right judgments. It’s been a while where judges alter and introduce the law as and when they are required to update the system by making it more efficient in current time.

For example:

“Article 21 – Protection of Life and Personal Liberty – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”.

The Supreme Court of India’s judicial activism, a slew of privileges have been held to be derived from Article 21. However, some of these orders can raise serious concerns.

For instance – Rape has been declared a violation of a person’s right to a fundamental life protected by Art. 21. The right to life includes the right to live with dignity. As a result, the right to life will include all facets of life that contribute to making lives better, effective, and worthwhile.

Rape is therefore not only a crime against a woman’s individual (victim), but also a crime against society as a whole. It devastates a woman’s entire psyche and drives her into intense emotional turmoil. Only through her sheer willpower does she rehabilitate herself in a world that, upon learning of the abuse, looks down on her with scorn and disgust.

As a result, rape is by far the most despised crime. It is an offence toward basic human rights, as well as a violation of the victim’s most prized civil right, the right to life and dignity enshrined in Art 21.

The punishment for rape has not been standard or rigid. They all have differed on the basis of the facts of the cases and Judges practice judicial creativity and interpretation.

Critical appraisal

The judiciary plays an important role in a country’s citizens’ rights being upheld and promoted. Judicial advocacy refers to the judiciary’s active role in protecting citizens’ rights and maintaining the country’s constitutional and legal framework. This means, on occasion, intruding into the executive’s domain.

Judicial activism establishes a system of checks and balances for the government’s other branches. It emphasizes the importance of necessary creativity in the form of a solution. It encourages judges to use their own judgment in situations where the law fails to provide a balance. It builds the faith in judges and offers information about the issues. Judge’s oath of giving justice to the nation should not alter as a result of judicial activism. It just encourages judges to do what they think is appropriate within reasonable bounds. As a result, the confidence in the justice system and its decisions has been implanted. It aids the judiciary in reining in the state government’s abuse of power as it interferes with and hurts citizens. In the case of a plurality, it aids in the quick resolution of issues where the legislature is unable to take action.

Judicial activism and judicial restraint

“Judicial activism, is the exact opposite of judicial restraint. The two words used to characterize the ideology and purpose behind certain judicial decisions are judicial activism and judicial restraint. At its most basic level, judicial activism refers to a philosophy of judgment that considers the spirit of the law as well as the social changes. Judicial restraint, on the other hand, is based on a strict reading of the law and the value of precedent.”

Judicial activism and Parliament

Where there are any holes, ambiguities, or inconsistencies, the judges attempt to fill them in creatively, describe the complexities, and explain the ambiguity. While practicing that, the judges are acting as both an interpreter and a legislator. This position is evolving and taking on new facets. The judiciary is not only monitoring the abuse of authority by other state institutions, but it is also acting as a “activist.” The more ambiguous a statute is, the more room there is for judicial discretion in making decisions. Many new ideas have emerged as a result of judicial ingenuity that are not contained in any particular provision of the Constitution but are critical to its significance. To fill in the gaps the judiciary needs to step in.

Judicial activism and public interest litigation

In a welfare state ruled by the rule of law, where personal and group rights are protected and enforced, public interest litigation is a valuable impetus of judicial activism. The Supreme Court considered a document written by two law professors arguing that the residents of a protective home were living in inhumane conditions as a writ petition in Upendra Baxi v State of Uttar Pradesh. As a result of their precarious situation, such prisoners were unable to seek legal relief in the courts.

The court not only considered the letter as a writ petition, but also gave two law professors standing to continue the case.

As a direct consequence, the goal of public interest litigation is to ensure justice for the poorer members of society, while judicial advocacy is an attempt to ensure justice for all members of society. Ever since emergency, the Supreme Court and the High Courts have issued judgments in a variety of fields, including human rights, governance, and so on.

Judicial activism and human rights

“The basic requirement for a healthy functioning of the judicial process is the right consciousness amongst the people whereby all possible interests in the society are pressed upon the judicial system and the courts are able to strike a balance between these interests in the framework of the social objectives. The social acceptance of judicial process as an objective and rational agency of social orderings depends upon the intrinsic merit of the judicial pronouncements and their social consequences.

Actually, the judiciary draws strength from the people’s confidence that the judiciary shares the widely held values in the society and its policies are geared to the achievement of social goals. The right to access to justice is the most important of all human rights. By easing the rule of locus standi, the judiciary has attempted to alleviate the sufferings of a vast number of illiterate and disadvantaged citizens via the innovative mechanism of Public Interest Litigations (PILs).”

Conclusion

There are instances where a decision made one way or the other would have long-term consequences, advancing or delaying the progress of the law in a reasonable direction by a significant amount of time or a small amount of time. The judge has an ability to shape the law in these kinds of scenarios, where the judge must leap into the core of legal darkness, where the lights of tradition and common law values flicker and disappear and that the court is given the chance to form and guide the law.

Judges should not need to be embarrassed or apologetic about the law establishing positions. It is the court’s job to give sense to what the law has said, and it is this phase of interpretation that makes a court’s job the most innovative and exciting. The Supreme Court became a sign of hope for the Indian people in recent years as a result of its judicial activism.

Judicial activism has contributed in various areas as mentioned above and has led to deliver justice in the spirit of law.

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Tax on agricultural income in India : overview

By

Rachit Garg

-

October 30, 2021

0

Protection of Plant Varieties and Farmers Rights Act, 2001

This article has been written by Aditi Diwan from Hidayatuallah National Law University and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders).

Table of Contents

Introduction

India is a country, where more than half of the population relies on agriculture for their livelihood. The agricultural sector is the most important part of the Indian economy, thus, is the main source of income in India. In 2013, India was the 7^thlargest agricultural exporter worldwide by exporting $38 billion worth of agricultural products. However, the income derived from agriculture is exempted from income tax. The presence of a huge untaxed agriculture sector has created simple ways of avoiding taxes. The growing evidence of increasing prosperity of the rural rich who are perceived to be the major beneficiaries of the ‘tax-free’ status of agriculture, is a significant inequity of the tax structure. The fact that a major portion of the economy is essentially ‘tax-free’ has led to a deeply unfair tax system which has led to significant distortions with an overall negative impact on the economy. There are several administrative and political explanations for the removal of the exemption of income tax on agricultural income in present times.

History

The history of agricultural tax can be traced back to 1860. It applied to income from all sources including agricultural income even when it was under high taxation by land revenue. It was active for 5 years and then repealed. Later, it again came into effect from 1869 but again repealed in 1863. Finally, it was imposed in 1886 but this time agricultural tax was excluded and the exclusion has stayed ever since.

The reason for its exemption was that agriculture was already subject to a major tax in the form of land revenue. The Indian Taxation enquiry committee made a concerted attempt in 1925 to bring agricultural tax into the framework of income tax. It observed that, “There is no historical or theoretical justification for the continued exemption from the income tax of income derived from agriculture. There are, however, administrative and political objections to the removal of the exemption at the present time.” But still, it remained unimplemented.

In 1935, the Government of India Act came into effect. It took away the central government’s power to impose tax on agriculture and gave it to the provincial governments.

The Indian Constitution in its seventh schedule, which defines and specifies the allocation of powers and functions between the union and the states, in its union list in entry 82 gives power to the centre to levy taxes on income other than agricultural income.
In the same schedule, under the state list, entry 46 gives powers to states to levy taxes on agricultural income.
Agriculture is exempt from income tax under Section 2(1A) of the Income Tax Act which defines agricultural income as “rent/revenue from land, income derived from this land through agriculture and income derived from buildings on that land”.
Section 10(1) of the Income Tax Act, 1961, a Central Act, excludes agricultural income from the computation of total income. This exemption would, however, be available only in cases where the income in question constitutes agricultural income within the meaning of Section 2(1A).

The Supreme Court, in the case of, The Commissioner Of Income Tax vs Raja Benoy Kumar Sahas Roy¹defined the term agricultural land as,

“The expression ” agricultural land ” means any land used as arable, meadow, or pasture ground only, cottage gardens exceeding one-quarter of an acre, market gardens, nursery grounds, orchards, or allotments, but does not include land occupied together with a house as a park, gardens other than as aforesaid, pleasure grounds or any land kept or preserved mainly or exclusively for purposes of sport or recreation or land used as a race-course.”

In 1935, Bihar was the first province to levy agricultural income tax which was later followed by Assam and Bengal in 1944.

The Raj Committee on Agricultural Wealth and Income presented its report in 1972, which is perhaps considered the most detailed report on agricultural taxation. The Vijay Kelkar Committee also raised the problem in 2002, stating that a resolution allowing the centre to pass a tax on agricultural profits that would then be delegated to the respective states should be assigned to the states.

Presently, six states have agricultural tax legislation on the books. They are Kerala, Tamil Nadu, Assam, Bihar, West Bengal and Odisha. But the implementation varies substantially, from taxes not being levied at all to being levied only upon income from plantations. A number of other states such as Rajasthan and Uttar Pradesh have reversed their policies on the issue over the decades, introducing and then rolling back agricultural tax.

The administrative objections to the removal of the exemption of income tax on agricultural income at the present time are as follows:

Small tax base

The agricultural census showed that there were 138 million holdings in India in 2010–11, of which 118 million were held by marginal and small farmers (93 million marginal and 25 million small). The income of small and marginal farmers is very low, they can hardly earn for a living and thus are left with either no savings or with a very small amount. Around 95% of the total assets are owned by such farmers which means only 5% of the farmers will be liable to pay the tax. Therefore, it will not have major revenue potential. So, the tax income would be very limited and it is not worth consideration.

Low credit facilities

If agricultural tax is imposed on farmers, it will reduce their chances of getting significant credits and it will lead to credit flowing only to rich farmers, as they’ll have a higher income to show. In present times, most of the small farmers take the money they need, from the local moneylenders which they(moneylender) provide without proper enquires. On the other hand, Banks pay attention to numerous things before providing a person with the loan, like occupation, income, work experience, repayment period etc. Small farmers who comprise a significant portion of the farmers’ population have a very poor income as they have very small lands, so they will not be eligible for the needed credit. Farm produce also fluctuates every season so they don’t have a fixed income which will make it difficult for them to repay the loan.

Lack of clarity on land title

The imposition of agricultural tax will lead to the documentation of assets and access to formal lending of credit. The small farmers are usually illiterate and uninformed and thus they are unaware of the procedure to make proper documentation of their land. Also, they do not maintain systematic books of accounts regarding their production and income. Therefore, they will not fulfil the requirement of banks for lending credit.

Less productive farming techniques

Farming techniques have evolved over time and the latest machinery is used for various farming processes. But, the case in India is different. More than 50% of the workforce comprises farmers and 95% of them are small and marginal farmers which make it difficult for them to purchase such expensive machinery. Although there are many government subsidies many of them still cannot avail themselves. This leads to low productivity which in turn leads to low income and with much less income they cannot afford to pay taxes.

Agrarian distress

The agrarian distress has been deepening, and there has been a rise in farmer suicides. With so many farmers committing suicide because of pending debts, low productivity and small income, imposing agriculture tax will certainly increase the suicide rate.

Also, the rural areas are developing at a high pace which has led to the privatization in these areas making expenses high. The expense of rural households has been raised by education and health privatization, and the burden of all this has affected agricultural households. The government provides services either at a very low cost or free of charge but, the private services cost way more than the government ones. So, the expenditure increases and the farmers are left with no savings and more debt. This way it is impossible for them to pay taxes.

Informality of agriculture

Agriculture is an informal sector. Almost all the payments are made in cash which makes it difficult to keep a track of income and expenditure. Assessing their true income or income earning potential becomes a burdensome task and if proper revenue is not known, ascertaining the tax amount will get problematic.

Price fluctuation of agricultural produce

There is a large fluctuation in the annual income of farmers. Harvests are unpredictable as they are affected by weather, disease and pests. A majority of farmers are dependent on monsoons. Also, most of the agricultural products are perishable, their price fluctuates every now and then, so the farmers’ income varies every season. Therefore, some years there may be adequate produce while others can see poor production. Fluctuation in agricultural produce results in low income which again is a situation of distress for the farmers.

Disincentive for the farmers

Imposing an Agricultural tax may discourage the farmers because of the extended expenditure. This will lead to a decline in production which will badly affect food security. Due to the lack of food security, the country will essentially depend on imports which in turn will lead to Forex reserves going down leading to food inflation. The Public Distribution System will be affected badly. Thus, it has a long chain of disadvantages.

Economic grouping is difficult

People often argue that farmers can be divided into various economic groups, in terms of their income and the tax can be implemented likewise. But, they do not keep in mind the fact that agriculture is an informal sector, the illiterate farmers do not even have a record of their landholdings, having conformity regarding their income is a farfetched thought. They don’t have the required documents with regards to their land and thus the resources and income they have cannot be ascertained. Thus, it is not an easy task as it looks from the outside.

Agriculture is already taxed with several regulations. It is important to eliminate several regulatory barriers that hinder farmers’ opportunities. For example, when foreign prices are high, sudden export restrictions on agricultural goods mean a tax on the income of farmers. In India, regular export bans on multiple commodities are well known. Similarly, there are domestic trade limits. And as the government is preparing a common national market now. In many states, mandi taxes are also high.

The political objections to the removal of the exemption of income tax on agricultural income at the present time are also taken into account below:

In addition to the administrative reasons, there are some political reasons also, which are responsible for the non-implementation of agricultural tax in India, which are as follows:

No government wants to antagonise such a large population

The farmers in India constitute 61% of the total population. They establish a strong political group and no government would want to upset these many people. It can be understood with the help of the recent Farm Bill.

The Farm Bill received the President’s assent on 24^thSeptember 2020. It was brought up with an aim to increase the farmers’ income and sell their agricultural produce wherever they want. The States of Punjab and Haryana have the maximum farmers in the country and they export large quantities of agricultural products worldwide. The act due to certain reasons

aggravated them and they started protesting in the Singhu Border. Today, it’s been two months since they are protesting and that too at the time of the pandemic (Covid-19) and extreme cold. The government is unable to convince the farmers and also there are many opposition parties to lead them on the wrong path. The farmers have asked the government to take all three bills back and are ardently stuck to their decision. This has led to a stressful situation for the government, farmers and people all over the country.

Similarly, the farmers won’t be happy if the agricultural tax is introduced in the country and it will lead to the same or even more stress and turmoil than it had led with the introduction of the Farm Bill.

It will affect the vote bank

As mentioned above, the farmers constitute a major proportion of the country’s population and thus they form a major political group. The introduction of the agricultural tax will include an additional expenditure to their total expenses. This will make them oppose the existing government and the chances of them coming into power again will reduce at a high pace. It is obvious that no government would want to upset such a large population and end their chances of remaining in power. As it is evident, the governments in the state and centre have always favoured the farmers and rarely have passed a law to augment them. Therefore, it is a major reason for the non-introduction of Agricultural Tax in India.

Politicians themselves are a beneficiary of exemption of agricultural tax from total income

For the last 70 years, agricultural income has been used as a method to turn black capital into white currency. The “agricultural income” path is misused by most politicians and the citizens sponsored by these politicians to turn their black capital into white money. The Department of Income Tax and the officers in the Department of Income Tax are well aware of this abuse of the agricultural income tax exception, however, for political reasons, they choose to stay quiet on this tax chaos. When a decent officer attempts to scrutinize the agricultural income tax exemption, the whole political structure starts to threaten him and persecutes, suspends, and even dismisses the officer involved from the operation.

Conclusion

Thus, we can say that the decision to implement the agricultural tax in India will be a tough one. India is a country with a huge population and many problems, like, illiteracy, unawareness, misuse of political powers and many more. Implementing the agriculture tax on such a country with a high proportion of farmers would be very difficult. However, the government can take various measures to differentiate the farmers into economic groups and then implement the tax on rich farmers and also the central government should take the powers in their hands to implement the agricultural tax so that when the time comes, they have the authority to do so. Implementation of Agricultural tax is important in the present times as the agricultural sector has become a veil for hiding loads of black money. But, still, a decision cannot be made until and unless we resolve all the administrative problems that we are going through in the present times.

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