A glance through cyber law v. cyber crime in Japan

nationalherald_2020-01_984c0a78-8df0-4375-acfd-0b31305f29d4_domesticviolence (1) — Image Source: https://rb.gy/fv2zvd

This article is written by Himanshu Goyal from SVKM’s NMIMS University, Bengaluru. This is an exhaustive article which deals with violence and the state of emergency in Ethiopia.

Table of Contents

Introduction

The term “state of emergency” refers to a legislative framework in which governmental institutions are given extraordinary powers to deal with existential threats to public order. In terms of human rights, states of emergency are critical because the suspension of legal orders frequently leads to systematic human rights breaches. “The same political pressures that lead to states declaring states of emergency also create strong incentives for states to violate their human rights obligations during emergencies.”

Under the Constitution, the Ethiopian government has the authority to declare a state of emergency, and it is required to consider the above major issues by following under the substantive and procedural requirements in the binding international and regional covenants, as well as the “non-binding,” if not weak and inapplicable, international soft law standards. Ethiopia’s government announced a state of emergency in Tigray on Wednesday after Prime Minister Abiy Ahmed authorized a military reaction to a deadly attack on a federal troop base by the region’s ruling party. The Federal Council of Ministers adopted the decree, “recognizing that illegal and violent acts within the National Regional State of Tigray are undermining the constitution and constitutional order,” according to Abiy’s administration.

About Tigray People’s Liberation Front (TPLF)

According to official records, the Tigray People’s Liberation Front (TPLF) is an ethnic nationalist paramilitary group, political party, and former ruling party of Ethiopia, that was founded on 18 February 1975 in Dede bit, north-western Tigray. It had developed from a handful of men to Ethiopia’s most formidable armed liberation force in just 16 years. From 1989 to 2018, it led the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of movements. It waged a 15-year struggle against the Darg dictatorship, which was deposed in 1991. The TPLF was at the forefront of Darg’s defeat, owing largely to its superior warfighting capabilities. Now Ethiopia’s Tigray region is ruled by the powerful Tigray People’s Liberation Front (TPLF). Ethiopian Prime Minister Abiy Ahmed made peace with Eritrea in 2018, for which he received the Nobel Peace Prize in 2019. Eritrea is regarded as an enemy by the TPLF. Abiy postponed the general elections to 2021 in August 2020, citing the COVID-19 pandemic. The TPLF accused him of usurping power and announced elections in Tigray in September 2020. This heightened the tensions.

Ethnic divide in Ethiopia

Ethiopians are ethnically diverse, with the most significant differences based on linguistic classification. The vast majority of languages are Semitic, Cushitic, or Omotic, and are all members of the Afro-Asian language family. A small number of languages are Nilotic, which is part of the Nilo-Saharan language family. Oromo make up 34.4 per cent of the population, Amhara make up 27 per cent, Somali make up 6.2 per cent, Tigray makes up 6.1 per cent, and others make up 26.3 per cent of the population.

All Ethiopian languages have official state recognition under the Constitution. However, Amharic is the federal government’s “working language,” and it is one of the two most widely spoken languages in the country, along with Oromo. Ethiopia’s population is made up of 43 per cent orthodox Christians, 34 per cent Muslims, 20 per cent protestants, 1.5 per cent traditional beliefs, 1 per cent Roman Catholics, and 0.5 per cent others.

Abiy Ahmed – from Nobel peace prize to leading the country to war

Abiy Ahmed took office as Prime Minister in 2018 at the age of 41, against the backdrop of anti-government protests. His youthful vigour and bright smile offered hope. In 2019, Ahmed was awarded the Nobel Peace Prize for his efforts to end hostilities with Eritrea. Abiy’s ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) coalition was in its third decade in power and had been dogged by allegations of repression and human rights violations. Opponents were imprisoned, and journalists were silenced. The EPRDF had presided over rapid economic growth, but many people felt excluded from its benefits.

This sense of exclusion, particularly among the country’s largest ethnic group, the Oromo, fuelled a wave of protests. Abiy, an Oromo, was promoted to the top job and immediately began addressing concerns during a frenzy of reforms. He freed thousands of political prisoners, relaxed restrictions on independent media, and welcomed the country’s once-banned opposition groups back from exile. He supported a woman for president, established gender parity in the cabinet, and established a peace ministry. The peace treaty with Eritrea and the reopening of the common border were the crowning achievements. Abiy toured the country and spoke about uniting the multi-ethnic nation. He also wanted to emphasize the importance of diversity. He was widely popular, partly as a result of the country’s dramatic changes, but his personal story also played a role in his appeal. In 2018, there were large rallies in support of the prime minister’s reforms. Born to Christian and Muslim parents in Beshaha, a coffee-farming district in southwestern Ethiopia, He was quickly regarded as someone capable of uniting a country that was becoming increasingly divided.

Long-simmering tensions that had been kept under wraps throughout the days of authoritarian leadership began to boil over once the enthusiasm of Abiy’s early days as Prime Minister faded. His efforts to promote togetherness while celebrating diversity ran into difficulties. Thousands have been killed as a result of ethnic confrontations and attacks on individuals based on their ethnicity. Nearly two million people had evacuated their homes and were residing in other parts of the country in 2019. Assassinations of important figures, which had previously been rare, began to occur with worrying frequency. In a single night, hundreds of miles apart, the army’s chief of staff and the leader of the country’s second-largest region were killed. Many other low- and mid-level officials suffered similar fates. And, to quell the escalating violence, Abiy reverted to previous governments’ strategies. Multiple times, the internet and phone lines were turned off. The suspects have been apprehended. Some were later released after being imprisoned for weeks or months without being tried.

The assassination of popular Oromo musician Hachalu Hundessa in the capital, Addis Abeba, a year ago, exacerbated ethnic tensions and prompted increased security measures. More than 200 civilians were killed in the ensuing violence in Oromia, the country’s largest region, and Addis Ababa. Prominent opposition figures have been detained on suspicion of inciting or escalating violence. Many Oromo activists accused the prime minister of attempting to eliminate meaningful opposition in Oromia as a result of this. Relations with another of the country’s ethnically based states, however, have tarnished his reputation.

Problems with Tigray People’s Liberation Front (TPLF)

The Tigray region’s President accused the Prime Minister of attempting to “side-line and even criminalize” the TPLF. Federal funding to the region was also significantly reduced, with resources flowing only to local governments to protect basic services.

Debretsion G. Michael, the region’s president, warned the public days before the federal forces’ assault that Prime Minister Abiy Ahmed was planning an attack to punish Tigray for its defiance. Although hard evidence is lacking, the TPLF is accused of being behind much of the internal strife and ethnic violence that has afflicted Ethiopia since the Abiy administration took power. Whether or not these reports are true, Ethiopian social media networks are rife with accusations that the TPLF has fomented conflict by organizing, training, and financing forces opposed to the federal government, primarily through surrogates and breakaway groups.

The democratic opening, he has created has yet to fully address the many ethnic grievances that had been bottled up under the TPLF, and sporadic ethnic flare-ups continue to occur across the country, even as the region struggles to cope with rising COVID-19 infection rates, with serious consequences for economic and social life. The war in Tigray is unfortunate and may have tragic consequences, including the loss of innocent lives. Both sides must take extra precautions to protect civilians.

State of emergency in Amhara and Tigray

Ethiopia’s government declared a state of emergency in Amhara and Tigray on 4 November 2018 after Prime Minister Abiy Ahmed ordered a military response to a deadly attack on a federal troop camp by the ruling party of the restive region. Tigray held regional elections in September, defying the federal government, which called the vote “illegal.” In recent days, the dispute has heated up, with both sides accusing the other of plotting a military conflict.

According to a statement issued by Abiy’s office, the declaration was made by the Federal Council of Ministers “recognizing that illegal and violent activities within the National Regional State of Tigray are endangering the constitution and constitutional order.”

According to the office of Prime Minister Abiy Ahmed, the Tigray People’s Liberation Front (TPLF) attempted to steal artillery and other equipment from federal forces stationed there. Many senior Tigrayan officials have been detained, fired, or side-lined since Abiy took power in 2018, in what the federal government describes as a crackdown on corruption but Tigrayans see as repression of dissent.

“With this morning’s attacks, the last red line has been crossed, and the federal government is therefore forced into a military confrontation. The goal was to prevent instability from engulfing the country and region. Heavy fighting, including artillery fire, has erupted in the northern region, which borders Eritrea, according to two diplomatic sources in Addis Ababa. According to the PM office, the federal government has declared a state of emergency in Amhara and Tigray for six months, which will be overseen by the chief of staff of the armed forces. According to Netblocks, an internet access monitor, the internet was shut down in the region, confirming reports that authorities had shut down telephony.

Previous emergencies in the country

Ethiopian Prime Minister Hailemariam Desalegn declared a state of emergency on Sunday, October 9, 2016. The declaration of a state of emergency allows the military to enforce security across the country. It also restricts freedom of expression and access to information. According to media reports, the state of emergency has been declared for six months. Under certain conditions, Ethiopia’s constitution allows for a six-month state of emergency. The government declared a state of emergency in response to massive protests by the Oromo and Amhara ethnic groups against the government, which is controlled by the Tigrayan ethnic group, a smaller ethnic minority. Ethiopia has declared a state of emergency for the first time in approximately 25 years. In March 2017, Ethiopia’s parliament voted to extend the state of emergency for another four months.

Other countries affected by the emergency in Ethiopia

According to the Tigray Agricultural Bureau, an estimated 1.3 million ha of crops were damaged as a result of the crisis’s land destruction and plundering. While farmers face difficulties in gaining access to agricultural land to cultivate, displacement and looting have resulted in the loss of livestock for pastoralists and agro-pastoralists. High mortality rates have also been reported due to endemic animal diseases such as Peste des ruminants, sheep and goat pox, and lumpy skin disease.

According to the most recent estimates from the United Nations Office for the Coordination of Humanitarian Affairs, approximately 5.2 million people (91 per cent of the region’s population) are in desperate need of assistance. While humanitarian needs continue to rise, access to humanitarian aid and essential goods remains limited in Tigray due to ongoing insecurity and significant disruptions to basic services.

There is also a risk that Ethiopia’s other regions, such as Benishangul-Gumuz, Oromia, and the Southern Nations, Nationalities, and Peoples’ Region, will see an increase in ethnic and intercommunal violence, as well as civil unrest. To date, restrictions have prevented a full assessment of the crisis’s true magnitude and severity.

Significant macroeconomic challenges, such as the Tigray crisis, currency depreciation, and high inflation, will continue to have an impact on people’s access to food as prices rise and purchasing power declines. Many of these issues are being exacerbated by the impact of COVID-19, particularly on markets, employment, and remittance access. These will almost certainly exacerbate the effects of the lean season in Belg and Mehr-producing areas (March-May and June-September, respectively).

Condition of refugees and civilians amid the war

The United Nations High Commissioner for Refugees (UNHCR) is deeply concerned about the escalating crisis in northern Ethiopia, where ongoing clashes between the Ethiopian federal government and Tigrayan forces are forcing thousands of people to flee, more than half of whom are children.

Since the violence began in early November 2020, over 14,500 children, women, and men have fled to Sudan in search of safety, far outnumbering the current capacity to provide aid. Meanwhile, services for 96,000 Eritrean refugees inside Tigray have been severely disrupted, with reports of an increasing number of Ethiopians being internally displaced. The UNHCR urges all parties to ensure the safety and security of all civilians in Tigray.

Fighting in Tigray moved closer to the Shimelba refugee camp in Ethiopia yesterday, raising fears of mass displacement from the camp, which houses 6,500 Eritrean refugees. UNHCR is preparing to receive refugees who have already begun arriving at the Hitsats camp, which is 50 kilometres away and is considering additional relocation options in the region.

General living and working conditions in Tigray are deteriorating, with power outages and food and fuel supplies becoming increasingly scarce. Communications have been disrupted, resulting in an information blackout. The number of refugees seeking refuge in neighbouring Sudan is rapidly increasing, with over 4,000 crossing the border in a single day. The majority have crossed the border at Hamdayet in Kassala State, while others have crossed at Lugdi in Gedaref State.

People are arriving with few belongings, indicating that they fled quickly. The children who arrive are exhausted and terrified. The majority are from Humera in Tigray, with others coming from Rawyan and Dima in neighbouring towns. UNHCR and its partners are increasing assistance, but the number of new arrivals far outnumbers available capacity. The Hamdayet border crossing transit centre has a capacity of 300 refugees but is already overcrowded with 6,000 people. Inadequate sanitation facilities harm hygiene.

State of emergency to curb transmission of coronavirus

Under Article 93 of the Federal Democratic Republic of Ethiopia’s Constitution, the government declared a 5-month emergency to limit the spread of the Coronavirus (COVID-19).

The Prime Minister announced the Government’s decision to declare the State of Emergency, stating that it was made to protect current and future generations. Proclamation 3/2020, also known as the “State of Emergency Proclamation Enacted to Counter and Control the Spread of COVID-19 and Mitigate Its Impact,” was approved by the Council of Ministers and passed through the House of Peoples’ Representatives on Friday, April 10, 2020. Furthermore, the House approved the establishment of a seven-member State of Emergency inquiry board to oversee its implementation under the Constitution. Anyone who fails to comply with the obligations faces up to three years in prison or a fine ranging from 1,000 to 200,000 Ethiopian Birr.

Conclusion

The war in Tigray is unfortunate and may have tragic consequences, including the loss of innocent lives. Both sides must take extra precautions to protect civilians. Abiy’s protests that this is a war against the TPLF, not the people of Tigray, will only be credible if the government also ensures the safety and well-being of Tigrayans in other parts of the country. Many are not affiliated with the TPLF or the war effort, but they may face unjustified retaliation. But, for the time being, fears that Eritrea will be drawn into the war or that the war will escalate into a regional conflict are unfounded or, at best, premature.

References

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Understanding police corruption

By

-

October 18, 2021

aw into their own hands — Image source - https://bit.ly/2VeeAHO

This article is written by Anwesh Panigrahi pursuing LLM from Kalinga Institute of Industrial Technology. The article has been edited by Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

Police as a law enforcing agency is an important institution for social control which exists in some form or the other in all societies of all ages. Police are an integral part of present-day society. A society in the present set-up, cannot live and progress without an effective, sincere and honest police force. Corruption exists in one form or the other in the police system. Corruption has infected every sphere of modern life. It has vitiated the moral values of society and the police force is not an exception. In fact, corruption of the police force is not a new phenomenon, but the irony is that the issue has seldom been seized by the organization with a sense of seriousness. In this article, I have discussed the types of police corruption that exist, the reasons for corruption and certain remedial measures to curb police corruption. The basis of the article is from secondary sources like police commission reports, e-books, e-magazines, articles and other sources.

Police corruption is the misuse of police authority for personal gain. Examples include extortion (for example, demanding money for not writing traffic tickets) and bribery (for example, accepting money in exchange for not enforcing the law). Police corruption carries high costs. First, a corrupt act is a crime. Second, police corruption detracts from the integrity of the police force and tarnishes the public image of law enforcement. Third, corruption protects other criminal activity such as drug dealing and prostitution. Protected criminal activities are often lucrative sources of income for organized crime. According to the rotten apple theory, corruption is the work of a few, dishonest, immoral police officers. Experts dismiss this theory because it fails to explain why so many corrupt officers become concentrated in some police organizations but not others.

It can also be noticed that unenforceable laws governing moral standards promote corruption because they provide criminal organizations with a financial interest in undermining law enforcement. Narcotic corruption, for example, is an inevitable consequence of drug enforcement. Providers of these illegal goods and services use part of their profits to bribe the police in order to ensure the continuation of criminal enterprises.

Types of police corruption

Essentially, police corruption falls into two major categories–external corruption, which concerns police contacts with the public, and internal corruption, which involves the relationships among policemen within the workings of the police department.

The external corruption generally consists of one or more of the following activities:

Payoffs to police by essentially non-criminal elements who fail to comply with stringent statutes or city ordinances; or, payoffs by those in particular need of police protection, who are willing to pass money to individual officers or groups of officers.

For example, businessmen dispensing liquor, businessmen located in high crime areas, individuals operating any type of business requiring a license, automobile towing operations, attorneys who represent those guilty of minor violations of the law where police testimony constitutes most of the state’s case, and individuals who repeatedly violate the traffic laws).

Payoffs to police by individuals who continually violate the law as a method of making money. For example, prostitutes, narcotics addicts and pushers, and professional burglars.

(3) “Clean Graft” where money is paid to police for services, or where courtesy discounts are given as a matter of course to the police.

These manifestations of external corruption often follow the established hierarchical structure of the police department. For example, a liquor shop owner who wishes to avoid arrest by members of police investigating violations of the liquor laws must be assured that his payments to a single officer will guarantee that the recipient either has the power to direct other officers not to bother the shop owner or shares the money with those who have command responsibilities. For this reason, the payment of money to the police by businessmen, who are particularly vulnerable to arrest for minor statutory violations, generally assumes a highly organized structure of distribution.

Where the method of distributing the proceeds of the collection becomes too burdensome, a more sophisticated method may develop. A commander of a district, who knows that collections can easily be extracted from liquor shop owners, may simply charge an officer who wants to be assigned to the police squad a fixed fee per month regardless of the amount actually collected. Similarly, those in charge of appointing commanders of districts may extract a monthly charge in exchange for awarding that position. Sophisticated methods of corruption also exist where the police receive money from organized crime. Because large scale bookmaking, narcotics peddling and other forms of organized criminal activity are highly structured, payments to the police tend to be highly organized. Thus, protection for a syndicate’s numerous wire rooms in a district might require payments to the commander who will direct his subordinates not to harass certain establishments. The commander will either have to pay his officers or allow them to keep a portion of the proceeds which they collect. In all cases of external police corruption, protection is the service bestowed, either in overlooking violations of the law or in providing some additional police aid or assistance. Because the police have broad discretion in enforcing the law, the establishment of an organized system of corruption does not require extensive covert activity. As those who pay are satisfied with the service, exposure is unlikely.

Internal corruption exists as a result of a desire of individual officers to improve their working conditions or to achieve higher status in the police department. It may include:

(1) Payment of money to join the police force.

(2) Payment of money to higher-ranking officers for better shifts or assignments.

(3) Payment for choice vacation time.

(4) Strict adherence to a code of silence concerning external police corruption.

(5) Payment for promotions.

(6) Payment for an assignment that will yield lucrative kickbacks.

Most types of internal corruption seldom are publicized and usually are not the subject of federal prosecution. However, because they are often interdependent, the elimination of external corruption may have the effect of eliminating many forms of internal police corruption. Thus, widespread investigations and prosecutions of external police corruption may have a potentially significant impact on all aspects of police corruption.

Reasons for police corruption

The historical analysis of police working has shown that corruption among the policemen in British India was widespread. The reasons may be different. In India, the recruitment policy of the government is defective. The first-rate person did not like to join in the initial stage of its development. The salary structures, nature and hours of duty, accommodation problems and certain administrative and organizational problems are the other factors responsible for police corruption. It is also due to the growing influence of unscrupulous public men and politicians.

According to a report, “the strength and the quality of the policemen have not kept pace with the demands of a rapidly expanding economy and administration. This has resulted in supervision becoming low and ineffective and in enlarging the scope of corruption proportionately”. Police have many limitations on the effective enforcement of legislation. The ambiguities in many of these legislations, coupled with the police discretion “to act or not to act” in respect of certain offences under them give ample opportunities to the personnel to resort to corrupt practices during the enforcement of such acts. For example, police discretion would prevail upon all other factors when a question is to be decided whether the provisions of the ‘Prevention of Sati Act – 1987’ can be brought against the relatives of a widow who committed Sati at her own will. The same is the case with a number of other offences like child labour, untouchability, immoral traffic on women, indecent representation of women, etc., which are brought under the ambit of a plethora of social legislations. An equally disturbing trend is the mounting incidence of corruption in police while dealing with gender issues like dowry deaths, exploitation of women, etc. Hundreds of unnatural deaths, which fall under the above categories, are closed without proper investigation. For instance, out of 714 unnatural deaths of married women below the age of 40 reported in Bangalore in 1997, 455 were deaths by burning. These cases were routinely classified as ‘stove burst’ or ‘kitchen accidents’ and subsequently closed as accidents without investigations.

The major source of corruption in the police is the vast power vested in a police officer in a day to day working. Today police corruption is a common feature in all situations where they have discretion and where they are in a position to use that discretion. One such example is the enforcement of prohibition laws. As the popular adage goes that “Power tends to corrupt, and absolute power corrupts absolutely” two cognitive features of police viz. power and discretion give ample scope for the police personnel to indulge in corruption. They enjoy wide powers while discharging the core functions of police viz. maintenance of peace and order and prevention and detection of crime and criminal activities. Similarly, police discretion is a double-edged sword that can be used or misused by the personnel on the mosaic of law and order situations. Though the personnel are bound to exercise these unique features strictly in accordance with the procedures that lay down processes and formalities, those intoxicated with tremendous powers and dominated by selfish motives can misuse them with a view to attaining private gains. Such “deviant behaviour” of the personnel appears in different forms in many areas of policing. Payments of bribes for postings and promotions are a well-known phenomenon in the Police department. As a result, the Policemen who have paid their way through try to recover the amount as soon as possible and corruption become a tool for getting a better return on “investment”. Corruption seems to have become a way of life in the country. Though the quantum of corruption in police is not as high as that in several other departments, its extent is quite widespread and the consequences are more serious.

The cancer of corruption in the police very often jeopardizes constitutional governance and acts as a catalyst in the violation of the Civil and Human rights of the citizens. The fact that bribe giver is often in distress and the capacity of the personnel to use or misuse their powers and discretion to extort bribes leads to the widespread propagation of the image of police as the most corrupt wing of the State. The lack of consonance between the empirical existential reality of police and its cognitive perceptions in the public mind also contributes to the crystallization of such an image, which to a great extent is the product of hearsay and media built stories. A police force whose image is corrupt and partisan is bound to evoke negative feelings among the public and cannot effectively enforce the role of the law in a democratic set-up.

Suggestions for controlling corruption

The corruption in the police can be controlled through the following ways:

Local policing : more responsive and accountable enforcement

There are several policing functions that concern the day-to-day life of common citizens and are very local by nature e.g. patrolling, traffic regulations, prosecution for offences like a public nuisance or eve-teasing. The enforcement of the law for these cases could be entrusted to a local force accountable to panchayat or citizen committees. This local force will have a small area under its jurisdiction, resulting in better interaction and involvement with citizens.

Making transfers and promotions transparent

Payments of bribes for postings and promotions is a well-known phenomenon in the Police department. As a result, the Policemen who have paid their way through try to recover the amount as soon as possible and corruption become a tool for getting a better return on “investment”. Also, transfers are also commonly used as a retribution tool against officers as a pressure tactic. However, if a system could be designed where postings are automatically generated by software after a given time interval for each employee, a big chunk of corruption can be eliminated. Similarly, the objective criteria for promotions could be articulated and publicized so that individual judgment plays a limited part in promotions. This will reduce the need for bribes in order to get promotions.

Use of information technology

Non-registration of complaints is the most common grievance of citizens interacting with the Police department. Since the registration of a complaint or FIR is the first step in justice delivery, citizens are forced to pay bribes. The use of technology for reporting and handling cases can play an important role in arresting corruption. Filling of cases could be done through the internet and if required, detailed information can be given later on. Case status could be made available online to bring in more transparency and make the Police force more accountable. FIR could be registered/ receipt issued through check posts or mobile vans.

Performance monitoring

Establishing a system for monitoring the performance of Police can substantially increase the accountability of the force. Objective performance and efficiency indicators can be chosen and tracked to monitor the performance of the Police force. This will lead to having clear improvement goals for the force on objective and measurable parameters.

Minimizing political interference : greater functional independence

As advocated by the National Police Commission a Chief of Police of a State should be given a fixed tenure of office so as to encourage functional independence. It has been commonplace in India for transfers and postings of officers to be used as a kind of reward and punishment, as a result of which, many chiefs of police have had allegiances to political parties. Also, the selection of Police Chief could be entrusted to an expert committee (maybe headed by UPSC chairperson). The committee may be given a pre-specified number of candidates, decided on the basis of seniority, to choose from.

Introducing greater accountability

In today’s scenario, there is very little accountability of the Police to the citizen with regard to satisfactory delivery of services e.g. if a Police officer refuses to register a complaint. Unlike in other services like electricity or telecom, where if a citizen is not satisfied with the complaint redressal by the department, it has the option of going to the independent regulator, there exists no such mechanism in the case of Police. It is very essential that the accountability of officials at different levels be defined and a degree of immediate proximity to the people and third party intervention introduced. Public hearings could be an effective tool for this purpose, as shown in experiments with other services. A system could be introduced where; a few complaints against police are picked up every month (or some pre-decided time interval) for public hearing. The public hearings could be conducted by a panel of retired judges and prominent citizens.

Conclusion

Unlike the other executive wings of the government, the police, which has maximum visibility in the society, their omissions and commissions rapidly attract public attention and spread like a wildfire through gossip and hearsay. As the police wear a mantle of defensiveness and many of their functions are shrouded in secrecy, there is a tendency to mythicise or sensationalize such lapses like corruption. The image of police so created in the minds of people always remains poor and sullied. No doubt, public awareness of policing has risen tremendously, but issues like corruption are such hidden areas were facts, fiction, myth, perception and reality are very intricately interwoven. The defaulting policeman becomes a symbol of the entire organization and his misconduct would be used as a powerful weapon to tarnish the image of the force. Thus the major task of the police in the new millennium is to refurbish its image for which reforms at and personnel levels are imperative. Ronald Segal aptly said that “Corruption like a sacrifice, starts at the top & percolates down, colours the whole society”. Hence, nationwide determination to combat corruption and a strategy of well-designed action and follow-up is needed to control the menace of police corruption in India.

References

Ravikanth B. Lamani and G. S. Venumadhava, “Police Corruption in India”, International Journal of Criminology and Sociological Theory, Vol. 6, No. 4, December 2013, 228-234 228
Afzal Qadri S M, “Police Corruption: An Analysis”, Indian Journal of Criminology, Vol.22 (1). Pp.5-8, 1994.
National Commission Report, 1980.
Thomas, “Corruption in Indian Police”. Available at: http://www.svpnpa.gov.inhtmlpublications (2004)OldJournalsupload Journals2004janjun.pdf.
Deccan Herald – July 9, 1999.
Rajan V N, Administration of Law and Order, Indian Institute of Public Administration, Jaipur. 1979.
(CMS Study 2005). India Corruption Study 2005. VOL. 9, ‘Corruption in the Police Department’. July 28, 2005. Centre for Media Studies. Transparency International India. New Delhi
“Herbert Beigel”, “The Investigation and Prosecution of Police Corruption”, The Journal of Criminal Law and Criminology (1973-), Jun. 1974, Vol. 65, No.2 (Jun. 1974), pp. 135-156

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Here is what you should know about the IP rights in food startups

By

Diganth Raj Sehgal

-

October 18, 2021

Distribute-free-food-to-the-poor-share-food-for-the-hungry-1129321635_web (1) — Image Source: https://rb.gy/yrqkeo

This article is written by Oishiki Bansal, a student of Symbiosis Law School, Noida. The article elucidates the different IP rights available for the food industry and how one can develop an IP strategy.

Table of Contents

Introduction

When some competitors tried to steal Willy Wonka’s creative recipes, the Oompa Loompas came to his rescue. However, neither does Willy Wonka exist, nor do Oompa Loompas in the real world to protect secret recipes and creative ideas from being stolen and losing an edge over competitors. Then how can one protect one’s creative and innovative food recipes in the real world? Yes, the very old and basic Intellectual Property Rights come to the rescue. Here is how Intellectual Property Rights can be used to protect innovative ideas in food startups.

IPR in food startups

Intellectual property rights aim to protect the creative and innovative interests of the human mind turned into a form that could have commercial value. Intellectual property rights that are applicable in the food industry are –

Patents are governed by the Patent Act, 1970. They are granted for 20 years as provided by Section 53 (amended by the Patents (Amendment) Act 2005), starting from the day of filing. For a patent to be granted, the following conditions are to be fulfilled –

Novelty – the innovation should be novel, i.e not known or used by anyone before.
Innovative – involves something that a skilled person can not do without knowing the inventive step.
Commercial applicability – the idea or product can be commercially used.

Trademarks are governed by the Trademark Act, 1999. They are granted for 10 years as provided by Section 25. A trademark, in simple terms, is any symbol, logo, design, or word that gives your brand a unique standing among the competitors.
Copyrights are governed by the Copyright Act, 1957. They are available for the lifetime of the creator and added 60 years after the death of the creator, as provided under Sections 22- 29 of the Act. They are given for any artistic or literary work that is original and creative.
Trade secrets are not covered by the statute of legislation in India but are enforced through the Indian Contract Act, 1870. Registration of a trade secret is not required and, contrary to patents, they protect the creations for an unlimited period.
Geographical indicators are enforced through the Geographical Indication of Goods (Registration and Protection) Act, 1999. They are granted for 10 years as provided in Section 18 of the Act and can be renewed from time to time. These aim to protect agricultural products, drinks, foodstuffs, etc that have a specified origin and they possess special qualities or reputation because of that origin.

Use of IP in food startups

Intellectual property rights can be used in the food industry in the following ways:

Patents

Patents that are allowed to the food industry are called utility patents. Generally, getting patents for new recipes is a difficult process, as it is hard to prove that the recipe is non – obvious for a person who is a skilled chef. However, this does not mean that patents cannot be filled in the food industry. One can file a patent for the process, new additives, packaging, labelling, and so on. Patents can be provided for a new usable step that is added to the process of making a food product, which enhances the quality of food products already being sold in the markets.

For example – if a person introduced a new process that could enhance bread’s longevity and add a few more days before it goes stale, the process can be patented, but the filer will have a problem in patenting just by saying that the bread he produced is the best bread ever!

The process of obtaining a patent is cumbersome and the patent holder only gets the right to protect its invention for 20 years, which cannot be renewed after the term ends. There are many categories in which a person can apply for a food patent. Some of them can be classified in the following:

Creating new ways of making special diets such as gluten-free food, vegan diet, or keto recipes;
Developing software apps for food-related products;
Increasing shelf – life of products or making new combinations, etc;
Developing a new kind of kitchen appliance or adding innovative ideas to existing appliances, and many more.

In the case of Mead Johnson & Company v. Hill man’s, Inc (1942), the district court of Illinois, while defining what all is included in the invention, stated that merely changing the shape, size or the steps of the procedure does not come under ‘invention’ and a patent cannot be granted for such change.

Trademarks

“I’m lovin’ it” by McDonald’s, “goodfood, good life” by Nestle, Amul’s “the taste of India”, Cadbury’s “Kuch meetha hojaye” are some most common and famous examples of taglines that have been trademarked by the famous companies. These taglines help the companies to differentiate their brand from that of competitors. Thus, every company needs to invest considerable time and investment in finding a unique brand name and logo. Trademarks help the companies to protect these symbols and identities that provide a unique standing in the market. While deciding on a trademark the companies should ensure that the brand chosen is-

Distinctive
Should not be descriptive – blueberry can be considered as a good name for a smartphone, but it can’t be trademarked for blueberries.
Should not be similar to or used by your competitor – recently, in the case of Starbucks Corporation v. Sardarbuksh Coffee & Co (2018), Starbucks sued an Indian food startup named Sadarbuksh for infringing its brand name and logo. The court ordered Sardarbuksh to stop using the green colour logo and not to use any words related to ‘bucks, baksh, buksh, star’ etc.

Therefore, while deciding on a trademark one should go through thorough research about the existing trademarks in the same industry. Toblerone and KitKat both applied for the trademark, but only Toblerone was granted one for its unique triangular chocolate bar based on mount Matterhorn peak, whereas KitKat was denied as it failed to prove uniqueness in the rectangle design to its wafer chocolate bar, even though it proved that the customers recognized the bar with nestle.

Copyrights

Through copyright, the creator can protect their literary/artistic work. Copyrights are generally not granted for recipes as it becomes difficult to prove who was the original creator of the recipe. It should be noted that merely identifying the ingredients needed for a specific dish is a statement of fact, and are not eligible for copyright, but the literary expressions involved can be copyrighted. In the food industry, one can protect the blogs, websites, cookbooks, a creative manner to present the dish, and much more. Copyrights protect for a much longer period than any of the Intellectual Property Rights do.

Trade secrets

Most food companies go towards acquiring a trade secret as there are no registration hassles and costs plus the trade secret is protected by the courts. They are chosen over patents as trade secrets can be exercised for an unlimited time, contrary to patents that become public after 20 years. The reason why coca-cola and KFC do not have competition is that they chose trade secrets over patents. However, trade secrets involve internal hassles such as confidentiality and non – disclosure agreements with their employees. These agreements are often in force even when the employment contract with the company ends. Trade secrets help the companies in protecting their unique recipes till they are not leaked to the public. Although there are legal consequences for leaking a trade secret in the market once the beans are spilt, there is no way back the company can stop competitors from stealing its secrets.

Geographical indicators

These rights are not often used by recipe creators but they come in handy when the food product involves some qualities that come from that region one can try going for protection under geographical indicators. For example – Darjeeling tea. Kashmiri apples etc.

How can an IP strategy be developed

Developing an IP strategy is important for a startup, as proper choices of Intellectual property rights help the companies establish brand image from the start. Many things such as the processes that need to be protected, the time requirement of a given IPR, how the competitors protect their innovations and creative ideas are to be kept into consideration while choosing the correct intellectual property.

Core assets need to be evaluated by food startups and the utility of the intellectual property to come with the correct investment choice. The reason why coca-cola chose trade secrets over patents to protect its formulae and making coke loved by everyone in the world, is to keep an edge over all the competitors in the market. Although the original formula of coca-cola is patented, no one knows about the changes made thereafter.

Various efforts have to be put in to know the market and your competitors so that no one can claim any intellectual property infringement. The infringement claim not only puts a financial constraint on the company but also affects the brand image and its reputation.

The new product that is created also faces many technical issues such as technical requirements related to appearance, functionality, packaging, taste, colour, or shape while procuring an Intellectual Property Right.

An Intellectual Property Right can add a lot of value to the food product or recipes, only if the entrepreneur is willing to take deliberate steps to protect, preserve, and properly monetize those rights. Proper steps are to be followed and due deliberation should be given to every asset that can be protected under the law.

The entrepreneur should be clear about what he needs to protect the most and come with new and creative ideas for intellectual property to be granted.

A good IP strategy involves the combination of two or more Intellectual Property Rights to protect all the interests vested by the startup. Today, we associate the big yellow ‘M’ sign with McDonald’s, the three-dot blue and red logo to Dominos, as they invested in trademarks and copyrights during the initial years. Trade secrets act as an important right when it comes to protecting formulas and recipes that give a competitive edge. However, there should be a strong non-disclosure and confidentiality agreement that a company should work on.

Conclusion

Intellectual property rights have always been an important tool for protecting inventions and creations of human minds. They protect the interest of the inventors to further invest in research and development to make new products that help in our day-to-day activities. With the rise in competition in the food industry, it has become important to protect the recipes and creative process, blogs, ideas, etc., to create an impressive and useful IP strategy. The entrepreneur should have a very strong knowledge of the market, the consumers, the competitors and of course his own business.

References

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The importance of traditional knowledge in wine and wine tasting

By

-

October 18, 2021

Wine — Image source: https://rb.gy/gd6ylo

This article is written by Suvigya Buch, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

Vineyards are an integral part of several cultures, especially French and Romanian cultural and heritage landscapes; they bring a second-degree approach of winemaking and tasting expertise which is also known as savoir-faire and savoir-boire respectively as presentative of their regional character. The appropriation of the heritage value is recognised as exceptional and has been one of the shared beliefs held in common by these two types of folklore representation: an independent appropriation through the dialogue of perception, touching, smell, and taste, and a collective appropriation through the acknowledgement of an identity and territorial community. For over 8000 years, wine has given people pleasure. Moreover, it has played an important role in human life long before even bread was invented. It is a product with a significant and widespread symbolic meaning. Many associations that we have with wine goes back 8000 years to the beginning of its manufacturing. Others may be more recent, but they are nonetheless crucial to how and why we enjoy wine and the process of making it. Knowing about these challenges is a vital antecedent to a more successful connection with the products.

Wine like several other food and drink items can be very specific to certain areas of the world. For example, France is one of the largest producers of wine in the world and French wine dates back to the 6^th century BC, when Greek invaders colonised Southern Gaul. With the creation of the Greek colony of Marseille, viticulture thrived quickly. Wine has been produced throughout the Mediterranean for thousands of years, but France has made it a part of their culture and considers winemaking to be an art form for over two thousand years.

Gaulish wines became well-known all across the world before long and the Roman Empire even started granting winemaking licences to regions in the south. Wine and the process of making the wine therefore qualifies as an essential part of the traditional knowledge of such regions. Hence, protecting such traditional knowledge is also of utmost importance and hence this paper seeks not only to understand the social significance of wine but also the importance of protecting the traditional knowledge related to the same.

The history and social significance of wine

Wine was discovered during the Neolithic period, a phase of the Stone Age when people began to grow crops and rear herds of domesticated animals instead of hunting. Wine’s mystique, as well as the pleasure it provides, makes it valuable. As a result, both the drink and the cultivated vine were introduced to new areas, frequently far from the wild grapevine’s native habitat. Proof of the same lies in the fact that eventually, the wine industry began to organise itself. In France, brokers became the King’s formal representatives, with an agreed-upon code of conduct. Early farmers had enough knowledge about their crops as part of the development of agriculture to replicate those that were more productive, more disease resistant, or more flavourful than others. This eventually happened with wild grapevines, and as a result, different grape varieties arose from one species, with clonal selection occurring within each variety to ensure the reproduction of the most useful vines.

It is widely believed that the art of winemaking began around 6000 B.C., and it is thought that this is the date for one of mankind’s most significant inventions because the people of these regions had succeeded in establishing permanent communities through the domestication of flora and fauna. Every culture and society had its own way of making wine.

For example, in France, Benedictine Monks helped spread awareness about wine even further because they utilised it as a part of their religious practices, specifically for Holy Communions. However, for those who wanted to consume wine for purposes that are not necessarily religious in nature, this wine was too watered down as it was meant only for use in church. As a result, the French aristocracy eventually took on the task of winemaking alongside the church. Bordeaux had previously rated the best red wines it produced by 1725, but it was not until 1855 that an official classification based on pricing was established. The wines were categorized into up to five classes or crus according to this categorization. All of this ended abruptly in 1789 with the start of the French Revolution, which ended in 1799 with the people in control. This was crucial for the development of wine, as now vineyards were in competition.

One of the most famous and important wines, with regards to the wine culture of France, is Champagne, sparkling wine from the region of the same name. This wine was created accidentally, and the bubbles were originally regarded as faulty. Temperature fluctuations across Europe hampered the fermenting process. Fermentation, the process by which wine is formed, was briefly interrupted by the cold. The fledgling spirits began to ferment again when spring arrived with warmer temperatures. This resulted in an oversupply of carbon dioxide in the wine bottles, causing the liquid to fizz. The excess pressure inside of the bottles resulted in them bursting and champagne being referred to as the “Devil’s Wine”. The difference between champagne and wine is that champagne undergoes a second fermentation process, which entails adding several additional grams of yeast and allowing it to ferment in the bottle. Because carbon dioxide is not particularly soluble, the carbon dioxide created by this second fermentation causes the bubbles (of carbon dioxide) to be expelled swiftly when the bottle is opened. Thankfully, Dom Perignon( brand of vintage Champagne produced by the Champagne house of Moët & Chandon,) chose to adapt to the new sparkling wine by using a variety of approaches. The first was to thicken the wine bottles’ glass in order for them to endure the pressure of the excess pressure formation. The other was his brilliant design of the wire collar, which not only helped the cork resist the pressure but also allowed monks to ditch the iron masks that they had to wear as protection while handling the Devil’s Wine. The wire collars and glass design are used even today and are an essential part of several celebrations that are toasted to by popping open a bottle of the “bubbly”.

The legal aspect

Wine tasting can often be a lonely and often futile practice if one is not an expert or does not have an expert to guide them through the process. A major reason for this is that wine tasting comprises several processes and technical terms that one must be familiar with in order to make the process fruitful. Even simple things like the basic stages of wine tasting such as analysing the taste through the wine’s appearance, its “in glass aroma”, “in mouth sensation”, and “finish” or aftertaste if not performed correctly, will affect the credibility of the wine tasting.

The EU, accounting for almost half of the world’s vineyards, is the largest wine-producing region in the world, responsible for over 65% of annual wine production. Owing to the vast economic and commercial importance of the wine sector, the wine market in the EU is heavily regulated. As discussed, wine tasting is a complicated process and involves several technical terms which are also referred to as Traditional terms (“TT”), which means certain expressions that traditionally are associated with specific wines bearing a designation or indication of origin. These terms are used in two main ways, first, to indicate the specific type of indication under which the wine production is protected, like a protected designation of origin (“PDO”) or protected geographical indication (“PGI”); or second, to describe product characteristics, like ageing processes, or production systems that are traditionally used to indicate the quality of the product.

In essence, two different types of TT’s exist. The first type is straightforward and basically expresses in the different languages of the respective States that these wine products are protected by a PDO or PGI. The terms used are, however, not identical to a PDO or PGI, but refer to different national schemes in the various countries that are reserved to indicate a product with a PDO or PGI. Well known national schemes that refer to wine protected under a PDO are appellation d’origine contrôlée (AOC) in France and denominazione di origine controllata (DOC) in Italy. Indications like the German term Landwein or the French Vin de Pays, on the other hand, refer to a product protected under a PGI.

For the second type of TT, words, phrases, initials or numerals are used to convey information about a specific production or ageing methods, or other characteristics of a product with a PDO or PGI. That can also be an event linked to the history of the product. Terms that originate in Château and/or Clos, in France, like “Vin jaune”, “Hors d’âge”, and “Rancio”, among others, indicate the production and ageing method that is used for a specific wine, the wine’s quality characteristics, its historical wine typology as well as the colour of the wine. It is therefore evident that the TT’s are essential in identifying wine and its main characteristics, which is also a major part of wine tasting.

As of 2020, 114 out of the total 337 TT’s are of the 114 of them are of the first category, which are phrases that allude to the appropriate national scheme in the nation’s own vernacular to indicate that a product is protected by a PDO or PGI. The second group has 263 phrases that describe the quality of wine or specific production techniques. The adjectives “young,” “old,” and “premium” are all protected terms, as are the names “tawny,” “ruby,” and “vintage”. The French term château refers to a historical expression that is related to a type of area and a type of wine, and it is reserved for wines coming from an estate.

Such terms are not particularly well-known, neither is the protection they enjoy. While they share similarities with geographical indications (“GIs”), they do not form part of the body of intellectual property (“IP”) rights. The TRIPs(Trade-Related Aspects of Intellectual Property Rights) Agreement does not cover TT, nor does the Intellectual Property Law of the European Union (EU). Additionally, Countries outside of the EU also do not protect such terms. TT is not considered a form of intellectual property. While standards of protection for GIs, and even additional protection for GIs for wines and spirits, are included in the TRIPS Agreement, TRIPS does not address TT. WTO Members hence are under no obligation to confer protection to these TT’s. However, this might be a mistake.

It is high time that countries and companies both understood the deep-rooted social relevance of wine across various cultures. With the passage of time, not only has the demand and love for wine increased but also the monetary incentives in dealing with the same. Consequently, people have started mixing wine and imitating labels, thereby misleading the consumers. While this may not necessarily affect big companies, it is important to keep in mind that wine is an indigenous product that is also made by not-so-wealthy people who in the process lose both money as well as their heritage. It is therefore important to ensure that such processes, labels, and TT’s are protected beyond the EU as this too qualifies as traditional knowledge. Protecting them in a similar manner is hence of utmost importance.

Conclusion

As discussed above, Vineyards are an integral part of several cultures, especially both the French and Romanian cultures, among many others. The protection of TT is therefore an important form of protection for wine products in the EU and around the world. But since they do not constitute intellectual property rights protected under the TRIPs Agreement, other countries in the world do not protect them. Nevertheless, when wine importers to the EU market want to use TT that are protected in the Union, they need to seek recognition from the EU.

Despite the fact that TT is not a type of intellectual property, the laws governing its protection in the EU are quite similar to those governing geographical indications. The protection objectives, treatment of identical phrases, trademark conflicts, the scope of protection, and enforcement measures are all very similar to geographical indications. The EU has been quite aggressive in pursuing third-country protection for its TT. It has done so by establishing bilateral agreements with a number of important wine exporting countries, as well as by enacting legislative provisions providing for the protection of TT from third countries. They differ in whether they offer mutual recognition of TT from both parties and establish protection standards in accordance with EU internal regulations, or whether they do not protect TTW at all and instead allow third countries to use TT protected in the EU on wine imported into the EU through derogations. However, it is not possible for the rich traditional knowledge to be preserved unless several countries start recognising the problem at hand. In order to ensure that the cultures, at the very centre of which lies, wine and wine tasting, are allowed to reap the benefits of their traditional knowledge. If no action is taken soon, it will leave the winemakers and tasters communities in a sour state.

References

Dr. Steve Charter, Wine and Society: The Social and Cultural Context of a Drink 34 (Elsevier Butterworth-Heinemann 2006).
Jackie Wynne, A History of Wine, Arena flowers https://www.arenaflowers.com/blogs/news/history-of-wine/ (last accessed on Oct. 1, 2021).
Richard Jennings, What Makes Champagne Special? A Brief History, Huffpost (Dec. 6, 2017) https://www.huffpost.com/entry/what-makes-champagne-spec_b_4278904 (last accessed on Oct. 1, 2021).
Kilien Stengel et al., Wine Tasting Discourse: Traditional Knowledge, and Practice, 4 Op. J. of Social Sciences (2016).
Moerland, A. & Bhadauria, R., The Protection of Traditional Terms for Wines in the EU and Beyond, in Chaisse, J., Dias Simoes, F. & Friedmann, D. (eds.), Wine Law and Policy: From National Terroirs to a Global Market, Brill Publishing, Chapter 12, p. 346 – 372 (2020).

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:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Right to information vs right to privacy

By

-

October 17, 2021

Right to information — Image Source - https://rb.gy/hsjx8u

This article is written by Kunal Jain, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

Right to privacy and right to information in India are the two most important rights to ensure that people can live their lives with dignity and integrity. These two rights are fundamental in maintaining the quality of life of an individual. While the right to privacy allows people privacy to their personal issues/affairs, the latter allows citizens to hold various government departments accountable for important public affairs. Most of the time, these two rights complement each other in holding the government accountable to individuals. But there is a conflict between these rights when there is a demand for access to personal information held by government bodies.

The relationship between right to privacy and right to information laws is currently considered the most important subject of debate around the world as various countries are adopting different types of concepts in relation to these laws and are making different legislations.

In India, in August 2017 the Supreme Court of India issued a landmark judgment recognizing the basic rights guaranteed by the Constitution of India as the right to privacy. The right to privacy was considered to be inherent in the right to life as stated in Article 21 of the Constitution of India. On the other hand, the right to information acquires the constitutional right of freedom of expression guaranteed to all citizens under Article 19(1)(a) of the Constitution. A bill stipulating various provisions for exercising this right was passed in 2005 and named the Right to Information Act, 2005.

What is known as the right to privacy?

If we try to understand privacy in the layman’s terms it can be stated as “No unwarranted public interference’’ it generally means to be free and alone without unnecessary public interference as one’s personal information is considered to be his personal property and he/she has the right to not disclose any such personal information. It may be said that privacy is the reversal of being public, if any private letter of one’s friend is published by anyone without his/her express or implied permission then his/her privacy would be violated.

The right to privacy is recognized internationally as well and the concept is present under various declarations and conventions which can be seen as:

Article – 12 of the UDHR (Universal Declaration of Human Rights):

There should not be any arbitrary interference in anyone’s privacy, family, home or correspondence nor should there be an attack upon the reputation and honour of any individual.

Article – 17 of ICCPR (International Covenant on Civil and Political Rights):

There should be no arbitrary interference in anybody’s privacy, family or home.

Article – 8 of the European Convention on Human Rights:

Every individual has a right to respect, his private and family life.

In India, earlier right to privacy was not granted as a fundamental right to its citizens, the sole credit goes to the judiciary for interpreting the concept of right to privacy because neither the Constitution nor any other legislation defined this concept. We can see the evolution of this concept through different cases which made it a fundamental right after several years of interpretation.

The first case was;

M.P. Sharma vs. Satish Chandrawas, before the Supreme Court of India, this case was in relation to search and seizure of documents of Dalmia group of companies, a search was carried out in 34 places belonging to the group and some of the private documents were also searched and evaluated due to which a writ petition was filed before the Supreme Court that the aggrieved parties’ fundamental rights were violated, here the court had the opportunity of considering the constitutional status of the right to privacy in the context of state’s power of search and seizure, but a very narrow view of constitutional provisions was taken in the case. The Supreme Court stated that the right to privacy is not a fundamental right and cannot be put into the domain of public law.

Furthermore in the case of;

Kharak Singh vs. State of Uttar PradeshThe petitioner was charged and tried for committing dacoity and he was subjected to domiciliary visits and surveillance by the police. The Petitioner filed a writ petition claiming that his fundamental rights under Articles 19 and 21 were violated, while determining the validity, the Supreme court also examined whether the right to privacy formed a part of Article 21 under personal liberty. Here the apex court while giving its judgment made the domiciliary visits unconstitutional and also stated that the right to privacy is not a fundamental right and right to movement under Article 19 infringes with physical restrictions.

Then a phase of cases came up where the Courts started recognizing the right to privacy and a judgment in the case of PUCL vs. Union of India, where the Supreme Court held that right to life and personal liberty includes the right to privacy and right to privacy includes telephone conversations as private at home or office and thus telephone tapping would be violative of Article 21.

In the year 2017, the Supreme Court in the landmark judgment of Justice K.S. Puttaswamy vs. Union of India, also known as the Aadhar case. It was in this case that the Right to privacy was first recognised as a fundamental right given under the constitution of India. The court held that the right to privacy is an integral part of the right to life and personal liberty as guaranteed under Article 21 of the Constitution. Due to this judgment, the Supreme Court interpreted that Aadhar is not violative of right to privacy and this judgment overruled the above other judgments where it was said that right to privacy is not a fundamental right.

Right to privacy has now be granted the status of fundamental right but is not an absolute right overall and is subject to certain restrictions or limitations that are:

National Security and Public Safety.
Public Interest.
Scientific or Historic Research.
Criminal Offences, etc.

Concept of data protection

Data protection generally is a set of policies and procedures that you can use to ensure the privacy, availability and integrity of data, sometimes known as data security or information privacy. In the digital age, data plays a huge role in our everyday lives, it’s present in lots of obvious ways. When we are shopping online for example and have to type in our name and address. Data collection can also be less visible, for example, take data brokers, we have probably never heard of them, but these businesses specialize in creating in-depth profiles of individuals for advertisers. A single profile may draw on up to 1,500 data points, this can include a person’s sexuality, browsing history, political affiliation and even medical records. Data protection is concerned with the ways in which third parties handle the information they hold about the public as to how it is collected, processed, shared, stored and used.

We can say that privacy and data protection are connected to each other, whereas data protection can also be termed as a part of privacy that holds a bigger place in an individual’s life. Data protection is defined more specifically than privacy but however, it depends on the legal structure of different countries and how it is applied in consonance with the privacy laws prevailing in the countries.

In India, the right to privacy was recognized after the Aadhar judgment under which the concept of data protection also came up. As India does not have a particular data protection law to protect data and information shared or received in any form, they can be interpreted through a mixture of legislations, rules or guidelines. The most important and prominent is the Information Technology Act, 2000 which is considered as the primary law dealing with cybercrime and electronic commerce, under this legislation and rules only the information exchanged through an electronic form is governed and not the non-electronic forms. However, the scope of this law is limited and majorly protects the sensitive personal data and information collected through computer resources through corporate entities. There is no legislation on data localization which is the major concern and reason for the ban of Chinese applications, in order to address this a comprehensive data protection law is needed. This has been brought up in the discussions related to the Personal Data Protection Bill, 2019 which was presented in the Lok Sabha and after some debates were given to a Joint Parliamentary Committee to examine the bill and give its report. The Salient features of the bill are:

Application of the Act to processing of personal data.
Categorizing the kinds of personal data into three major heads – Personal Data, Sensitive Personal Data and Critical Personal Data.
Obligations and limitations of the data collectors.
Restrictions on the transfer of Personal data outside India.
Exemptions or safeguards to Government agencies and other laws in relation to the processing of personal data.
Offences and penalties against the prohibited acts under the law.
Amendments to other laws as needed.

What is the right to information?

The right of access to information held by the government bodies provides that individuals have a basic human right to demand information held by the government bodies. It can be inferred from the right to expression to seek and receive information, and it is recognized as a human right throughout the world. Under this right, any person can claim information from a public body, and that body is legally bound to disclose such information unless there is a legal reason not to disclose such information. In a democratic country, RTI is an important tool for countering abuse, mismanagement and corruption to enforce essentials of economic and social rights.

In India, right to information can be derived from the fundamental right of freedom of speech and expression which is guaranteed under Article 19. Several incidents have proved that the right to information is an integral part of the Constitution of India and is a recognized right for all its citizens. As RTI is a constitutional right it has also been incorporated in legislation and is known as the Right to Information Act, 2005 which now deals with the disclosure of information by the government bodies for the needs of the community or individuals public interest. This has provided the appointment of designated officers to release information to the public, a complaint mechanism, a proactive disclosure by the government for specified types of information and this act also protects the privacy of both citizens and public figures. The development of the right to information can also be seen through various Supreme Court judgements also, as in the case of Bennett Coleman and Co. vs. Union of India, the right to information was held to be included within the right to freedom of speech and expression guaranteed by Article 19(1)(a). Then in the case of SP Gupta vs. Union of India, the right of the people to know about every public act and the details of every public transaction undertaken by public functionaries were described.

Thus, the right to information has been recognized and accepted as a law in India and is considered as a fundamental right through which the public can call for information by the government or public authorities which are in the interest of the public.

Conflicts between both the rights

It is very well-known that the authorities are the custodians of numerous non-public records of various citizens. The income-tax returns of a person, his clinical records, his biometric facts and so forth are his personal belongings of which authorities could have access. If such records are made subject to RTI, a large invasion with respect to the privacy of an individual. On the other hand, it additionally aims to ensure that no one puts on a facade of safety or privacy with the intention to protect himself against the disclosure of data which can be mandated through RTI. In instances wherein there may be a dispute concerning whether or not the data needs to be protected under Section 8(1)(j) or not, the applicant will have to satisfy the Public Information Officer that the data is for public interest and its disclosure will benefit the public as a whole. If the officer is satisfied, the data can be provided. Here, the general public interest surges in advance of the right to privacy of the individual. Thus, there may be a likely paradox among these rights. However, the question is whether or not these rights are so opposing in nature to the quantity that they can’t be reconciled? Many efforts have been made to harmonize these provisions and it has met with a fair amount of success. These rights may be complementary to each other and promote extra transparency and accountability from governmental authorities.

Conclusion

Both the rights are intended to help individuals in holding the government accountable and transparent. Most of the issues can be solved by following a defined and tested system that works as a due diligence mechanism for the protection of private information and regulation of public information. Right to privacy and right to information both are fundamental rights recognized by the Constitution of India and are interpreted in a way that provides protection to the citizens of India. These rights have evolved in the era of technological advancements which has laid down the need for a law in regards to personal data protection, also which is under the process and would be brought before the Indian citizens very soon with effective provisions.

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:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

United States business option for Canadians

By

Rachit Garg

-

October 17, 2021

competition lawyer — Image Source: https://bit.ly/38noF9V

This article has been written by Thayumana Sundaram.S.

Introduction

American Business Opportunities

The concept of business start-ups in the United States by Canadian entrepreneurs is not an uncommon Scenario. A lot of businesses operating in Canada want to establish their operations in the US or have already registered their existence in U.S markets, this is because of the U.S market capitalisation.

The U.S market capitalisation is one of the highest in the world due to its Purchasing powers and high consumption economy, which automatically tends to be an attractive location for many business formations, andCanadiansas residents of the neighbouring country , while trying to expand and prosper their business possibilities in the huge, free-market economy want to spread it in the U.S.

Canadian potential

Canada with a large reserve of natural resources in the North American continent and sharing the longest border with the U.S, due to their proximity as neighbours, highly educated population, and various bilateral treaties with the U.S, has created huge potential for Canadians to operate the business on both sides.

Historical backdrop

Volume of trades

This potential was proved from the history of trade made in the past, that is technically the U.S and Canada are constituting one of the world’s most intensive trading ties, which intends to generate millions of jobs in both countries. For simple math, the United States and Canada traded goods and services worth above $600 billion (USD) in the last year alone, both countries are each other’s largest export markets in a specific field, Canada is the top export market for 30+ U.S. states, Also Canada is the single largest exporter of energy to the United States.

Legal frameworks

The abovementioned, enormous quantity of trade and business is not possible without specialised legislative support, where comes the role of the United States-Mexico-Canada Agreement: The United States-Mexico-Canada Agreement (USMCA) entered into force on July 1, 2020, by replacing NAFTA as the free trade agreement for North America.

The primary objective of USMCA is to generate job opportunities, improve worker protections, increase agricultural trade, produce new investments in vital manufacturing industries, and also protect intellectual property rights, thereby creating enforceable labour and environmental standards, to enhance and extend digital trade protections. These are just a few key areas in which the new standard for U.S. trade agreements is set forth.

Moreover, they have collaborated with the G7 and G20 treaty of political and industrialised liberal economic forums, possibly bringing more future proof business agreements which makes both the countries as inseparable business and market utilisation with each other.

Possible business visa for Canadians

Now comes the crucial part of U.S immigration where the first and foremost step on forming the business in the U.S starts with selecting the right visa scheme based on your future goals and economic conditions, and due to their proximate relationships, there are specific and general visas available for Canadian citizens to start their business this is as follows;

Business and work-Related Immigration Visas to the US

US H1-B Visa: It is an Employer-sponsored employment visa where the foreign individual will work for the organisation and is highly competitive due to annual limits.
L1 Visa: specifically transferring executive, managerial or specialized knowledge employees to the US from an overseas “qualifying organization” of the US-based company.

E1 Visa: Special Treaty-based Trader Visas allow a citizen of a treaty nation to be admitted to the United States to engage in international trade and commerce.
E2 Visa: Special Treaty-based Investor Visas which apply to the citizens of a specific nation who entered into a bilateral agreement, and allowed them to invest in the U.S businesses.
EB2 Visa: This is also an employment-based green card visa that grants US Permanent Residence. professionals holding advanced university degrees and of exceptional ability in the sciences, arts, or business. A business owner may be able to qualify if the business will have a significant contribution to the economy.
EB3 Visa: This is also an alternate preference in employment-based (EB) green card visas to the U.S. It includes Professionals, skilled workers as well as unskilled labourers.
EB5 Visa: It is considered an Investment Green Card Visa. This allows starting a business in the US, with conditional green card issuance.

Popular visa scheme

So, it is possible for a person to qualify in any one of those extended immigration options to enter U.S jurisdiction, but the most common and even popular business visa schemes opted by Canadians are:

E-2 Treaty Investor Visa for Canadians
EB-5 Green Card for Canadians
H-1B Visa for Canadian Entrepreneurs

The E-2 (Investor Treaty Visa for Canadians)

Step By Step Guide Before Applying for an E-2 visa

To start a U.S. business and to qualify for an E-2 visa, then first the Canadian investor needs to put full investment into the U.S. enterprise. That legally means –

Setting up a legal business structure (such as an LLC, C-Corp, etc.),
Getting a Federal Employer Identification Number (EIN).
Opening a business bank account. Depending on the need of business.
It may also mean obtaining required permits, inspections and licenses.
The Small Business Association is a forum that contains a good resource for launching your business.

Invest in the active commercial enterprise:

To qualify for an E-2 visa, Canadians need to invest in purchasing an existing business or start a new business. In the area of active bonafide business, means that the business must be involved in the production of goods or service. Examples of E-2 business include:

Any Manufacturing or Service company such as
A Tech company
Restaurant
Transportation
Wholesale or warehousing
Retail or convenience store
Gas station
Medical clinic
To a beauty salon. Etc. whichever it should actively engage,

The business cannot be passive, idle or speculative in nature. The Canadian citizen’s investment should be real and active participation in economic activity. E2 investment doesn’t include the real estate investment, such as buying and flipping real estate; or financial investment, such as buying and selling stocks etc, these do not qualify as a business category.

E2 Investor visas are available only to Citizens of treaty nations. The E2 program is based on the U.S international treaty, and thus visas are available only to that nation citizen which the U.S. has such bilateral treaties.

Notable Remark –

One should invest their money in businesses before applying for the visa, that is, the U.S Department of State requires all E-2 applicants to put their investment at risk before applying. In other words, the business must be purchased or fully set up before submitting its E2 application. But the visa is not guaranteed only because of your investment, if you have $100,000 in a bank account and you intend to purchase or start a business, this will not be sufficient to qualify for an E-2 visa.

The EB-5 VISA

Developing from the simple words stated earlier, the EB-5 was an Investment cum Green Card Visa. This allows them to start a business in the U.S and run it as a green card holder .

Visa requirements

The EB5 programme requires the visa applicant to:

Preliminary condition – Need to invest at least near to $1 million in a business on Targeted Employment Area or more than $1 million in a new commercial enterprise outside target employment location.
Maintaining condition- create and sustain full-time jobs for 10 Americans employees at least to get qualifying conditions.

Failure to comply with these requirements can potentially cause the Green Card to terminate due to its conditional nature (two-year conditional green card) issued with the EB5 qualified applicants.

Duration and permanency

The EB5 programme provides a direct path to permanent residency, which is supported by a green card. A green card holder can stay in the United States forever, provided they maintain their visa condition timelines and permanent residency status or apply for citizenship.

Politics

The EB5 Immigrant Investor Programme is generally viewed more favourably than the H1B program by Americans Because the EB5 programme creates thousands of American jobs and brings billions of foreign investments, whereas the H1B visa often seems a threat to the US native labour force. For that reason, the EB5 programme is not included in the presidential campaigns on “immigration ban” policies as the H1b visa faced during the Trump administration.

EB5 visas are subject to an annual cap. Because EB5 visas are subject to annual intake limits, it is competitive to qualify for an EB5 visa, due to the long waiting period after applying to get the visa.

Similarities of E-2 and Eb-5 visas

Both the EB5 visa and the E2 investor visa allow foreign nationals to enter the United States by their substantial investment in a United States business. However, there are some significant similarities and differences between the two programs, on grounds of eligibility, duration, finance, applicable to the investors They are discussed below;

Key takeaway – Legal Status of EB5 vs E2

The Major difference is the legal status achieved from that both visas that are The EB5 visa is considered as a permanent resident (“green card”) visa,

whereas the E2 Investor program is a temporary visa. However, the E2 visa can be renewed unlimited times, till the visa holder qualifies the eligible condition.

Other Eligibility for EB5 and E2 Investor

Both types of visas require a substantial investment in a U.S. business. For purposes of an EB5 visa, the minimum investment is either $500,000 or $1,000,000, depending on the operation area in which the investment is made. However, the investment is more flexible for E2 visas where the investment is determined based on specific business requirements, which is derived by the regulatory board.
Job creation. However, the requirement for E2 visa applicants is again more open-ended. While the EB5 visa requires a minimum of creation of 10 full-time jobs for Americans.
Active business. This is the one area where the E2 visa applicant is held to a higher standard. All E2 visa holders must engage in the active role of their business, whereas the activity requirement is relaxed for EB5 applicants whose investments are done through the regional centre.

6.4 Key Remarks

Even many of the requirements for an EB5 and an E2 Investor visa are similar. But generally, the requirements and investments are a little higher for the EB5 visa, due to its option of green card status.

The H1B VISA

Visa requirements

The requirements of the H1B visa and the other Investment visa are very different. The H1B programme is focused on employment.

H-1B program allows companies and employers in the US to temporarily employ foreign workers in occupations that require the theoretical and practical application of highly specialized knowledge and higher education in the specific field, some of the key requirements for H1B include,

that no Americans currently available to fill the specific job;
The applicant holds a bachelor’s or higher degree (or an equivalent to the U.S)
12 years of work experience.
Or a combination of both work and studies in a specific field.

Duration and permanency

The H1B visa is a temporary non-immigrant visa that is initially valid for three years and can then be extended for another same period of years. After the expiration of the maximum time of stay, the foreign employee is required to leave the United States or obtain different immigration status.

Politics

Here comes the Sensitive area of immigration. This visa alone constitutes a huge political debate and even runs presidential election campaigns, yes the H1B visa is always under the scrutiny of job security for Americans. There may always be tight restrictions on the H1B visa entry. During Trump’s administration, it was proposed to reduce one-half of intakes with America first policy, but Bill doesn’t pass to become act as of now.

Alternative L1 visa

The L-1 visa offers similar facilities to the H1B visa without an annual cap. The L-1 visa is for specifically transferring executive, managerial or specialized knowledge employees to the US from an overseas qualifying organization of the US company, that is inter-company transfers due to the requirement of a highly qualified person.

An applicant must set up a new US office and move there to manage that office on the L-1 visa. The existence of business in the U.S is the major condition to transfer with the L1 program.

Conclusion

Key considerations

Finally, the big business opportunity of Canadian-American comes with few technicalities, starts from whether you are interested in pursuing an EB5 or E2 visa and enter the U.S as an investor or else looking to obtain an H1B visa and thereby start working on your business, everything purely depends on your business goals and requirements, but before opting for any schemes, one should go through the intensive research about visas in the following aspects:

Analysing pros and cons of each visa.
Assessing your eligibility for each type of visa.
Business priority and Goals.
Economic condition for next 5 years.
Assembling the comprehensive documents requirements.
Assessing the state protocols and timelines.

Selecting the appropriate visa for you and your business will be half a success in the business immigration process, so research well and consult with U.S immigration lawyers or similar Canadian communities who have already gone through every stage so that they can guide you in the process of creating a successful U.S business entity.

Sources

Government Immigration and Citizenship Data: https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data

U.S. Relations with Canada – United States Department of State: https://www.state.gov › us-relations-with-Canada
visa state requirements: https://canadiansinusa.com › investing-in-the-us ›

Expand or relocate a Canadian Business to America: https://toughnickel.com/starting-business/Canadian-Business-in-America

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:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

All you need to know about the Cybercrime Prevention Act in the Philippines

By

Rachit Garg

-

October 17, 2021

https://t.me/lawyerscommunity

This article has been written by Sanjay Kumar, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. It has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

The Philippine Congress enacted Republic Act No. 10175 or “Cybercrime Prevention Act of 2012” which addresses crimes committed against and through computer systems on 12 September 2012. It includes penal substantive rules, procedural rules and also rules on international cooperation.

Amendatory bills on cybercrime investigations are under work in the Philippines, with new provisions being introduced on procedural powers, responsibilities, and extradition. The aim is for the amendments to provide a structured approach for prosecutors and investigators on cybercrime investigations and to further align national legislation with the Budapest Convention.

In India, The Information Act, 2000 was enacted to regulate cyber crimes. The Act is based on the United Nations Model law on electronic commerce, 1996 recommended by the General Assembly of the United Nations in the year 1997. The Information Act, 2000 was later amended in the year 2008to improve certain provisions of the original Act.

Cybercrime Prevention act of Philippines

The Fundamentals of the Act

Cybercrime also called computer crime is the use of a computer as an instrument to further illegal ends such as committing fraud trafficking child pornography, intellectual property violations, stealing identities or violation of privacy. The difference between traditional criminal offences from cybercrime is the use of the computer in committing such offences. Majorlycybercrime is an attack on the information of Individuals, governments or corporations.

To combat and prevent cybercrime, the government of the Philippines introduced the Republic Act No.101175 or Cyber Prevention Act of 2012. This Act was signed by the President of the Philippines Mr. Benigno Aquino on September 12^th of 2012. The original goal of this Act was to penalize acts like cybersex, child pornography, identity theft etc.

The key provisions of the Cybercrime Prevention Act of 2012

There are sixteen types of cybercrime covered under the Cybercrime Prevention Act of 2012. They are:

Illegal Access:

Access to a computer or any application without permission.

Illegal Interception:

Interception of any non-public communication of computer data to, from, or within a computer system by an unauthorised person.

Data Interference:

Unauthorized tampering with, destroying, deleting, or deteriorating computer data, electronic documents, or electronic data messages, as well as the introduction or transmission of viruses. This provision can also cover authorised activity if the person’s behaviour went beyond the agreed-upon scope and resulted in the damages listed in this provision.

System Interference:

Unauthorized interference with the operation of a computer or computer network, including the introduction or transmission of viruses, by inputting, transmitting, damaging, deleting, deteriorating, altering, or suppressing computer data or programmes, electronic data messages, or by deleting, deteriorating, altering, or suppressing them. This provision can also cover authorised activity if the person’s behaviour went beyond the agreed-upon scope and resulted in the damages listed in this provision.

Misuse of devices:

Unauthorized use, possession, production, sale, procurement, importation, distribution, or otherwise making available of gadgets, computer programmes, or other materials developed or adapted for committing any of the acts listed in Republic Act 10175. Unauthorized use of a computer password, access code, or similar data that allows the entire or a portion of a computer system to be accessed with the intent of using it to perpetrate any of the offences listed in Republic Act 10175.

Cybersquatting:

Acquisition of a domain name in bad faith on the internet to profit, deceive, harm reputation, and prevent others from registering it. This includes trademarks that were already registered at the time of registration, names of people other than the registrant, and trademarks that were purchased with intellectual property interests in them. Those who get domain names of prominent brands and individuals who in turn are used to damage their reputation can be sued under this provision. Note that freedom of expression and infringement on trademarks or names of persons are usually treated separately. A party can exercise freedom of expression without necessarily violating the trademarks of a brand or the names of persons.

Computer related Forgery:

Unauthorized input, alteration, or deletion of computer data that results in inauthentic data with the intent that it be considered or acted on for legal purposes as if it were authentic, regardless of whether the data is directly readable and intelligible; or the act of knowingly using computer data that is the product of computer-related forgery as defined here to perpetuate .

Computer-related Fraud:

Unauthorized access to, alteration of, or deletion of computer data or programmes, or interference with the operation of a computer system, with the purpose to cause damage.

Computer-related Identity Theft:

Unauthorized acquisition, use, abuse, transfer, possession, change, or deletion of an individual’s identifying information, whether natural or legal.

Cybersex:

For favour or consideration, willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious presentation of sexual organs or sexual activity via a computer system.

Child Pornography:

Unlawful or banned activities conducted through a computer system, as defined and punished by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009.

Libel:

Acts of libel that are illegal or forbidden under Article 355 of the Revised Penal Code, as amended, and are committed using a computer system or any other similar means that may be created in the future. Penal Code Revision According to Article 355 Libel is defined as defamation of character by writings or other means. Libel committed by writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any other similar means is punishable by prison correctional for the minimum and medium periods, or a fine ranging from 200 to 6,000 pesos, or both, in addition to any civil action that the offended party may bring.

Aiding or Abetting in the commission of cybercrime:

Anyone who knowingly assists or abets the conduct of any of the offences listed in this Act will be held accountable.

Attempt in the commission of cybercrime:

Any person who willfully attempts to commit any of the offences enumerated in this Act shall be held liable.

All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act.

Corporate Liability:

(Section 9): When any of the punishable acts herein defined are knowingly committed on behalf of or for the benefit of a juridical person by a natural person acting either individually or as part of an organ of the juridical person who has a leading position within, based on: (a) a power of representation of the juridical person provided the act committed falls within the scope of such authority; or (b) an authority to make decisions on behalf of the juridical person. It also includes the commission of any of the penal acts made possible due to the lack of supervision, provided that the act committed falls within the scope of such authority; or(c) an authority to exercise control inside the juridical person.

Advantages and Disadvantages of the Cybercrime Prevention Act of 2012

Advantages

Cybersex, Cyberbullying, Child pornography are now offences and such offenders can be punished. The children’s rights are protected by this Act.
All kinds of businesses using the internet as a medium are protected by this Act.
Provisions of this act now define the offence of cybersquatting and this deters people from the act of cybersquatting.
Provisions that penalizes online identity theft. This provision protects the individual’s privacy and its protection.

Disadvantages

Ambiguity in the terms given in the Act such as the term online libel is not defined anywhere which can lead to different interpretations. Ambiguity can be seen in the provision of real-time data collection.
The ambiguity in the Act may lead to the freedom of speech. The ambiguities like the absence of a proper definition of online libel may lead to confusion. Sometimes the expression of some truth may be misinterpreted as Libel. People may be restrained from expressing themselves.
The implementation and execution of this Act yearly cost a huge cost to the government.

Will new Cybercrime Law harm free speech?

A new Philippine “cybercrime” law drastically increases punishments for criminal libel and gives authorities excessive and unchecked powers to shut down websites and monitor online information, Human Rights Watch said today.

The criminal penalties and other restrictions of the law are a serious threat to free expression in the nation. Several legal cases have been filed in the supreme court of the nation and demanded that this law be declared unconstitutional because it violates guarantees to free expression contained in the constitution of the Philippines and Human Rights treaties ratified by the nation.

Brad Adams, executive director of Human Rights Watch’s Asia Division, said “The cybercrime law needs to be repealed or replaced, “It violates Filipinos’ rights to free expression and it is wholly incompatible with the Philippine government’s obligations under international law.”

Conclusion

A comparison between the cybercrime prevention acts and the policies of Philippines and India shows similarities to some extent and at the same time there are slight differences. If the provision of cyber libel in both countries are compared, it can be seen that both countries included this provision and immediately attracted the difference of opinion from the netizens. In India, the Information Technology Act of 2000, Section 66A, defines the penalty for sending “offensive” messages through the computer, mobile phones, or tablets. Because the government failed to define the term “offensive,” it began to be used to suppress freedom of speech. In the year 2015, the Supreme Court overturned this law. In the Philippines, the same uproar from the netizens was heard when the cyber libel was introduced as an offence under the cyber prevention Act 2012. In Disini v. Secretary of Justice, the validity of the rule on online libel was challenged (G.R. 203335, 11 February 2014). The Supreme Court, on the other hand, determined that libel is not protected speech under the Constitution. As a result, the internet libel is not unconstitutional. There may be different approaches to the provisions of the Act by different countries, nevertheless to say that strict enforcement of the cyber law is essential to combat cybercrimes. Technology crimes are not just limited to a geographical region but it is a global phenomenon and stringent cyber laws are essential across the globe.

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:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Everything you need to know about insolvency in the aviation sector with emphasis on India’s new Cape Town Convention Bill

By

-

October 17, 2021

This article is written by Rishabh Govila, pursuing Certificate Course in Insolvency and Bankruptcy Code from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Indian aviation and insolvency

The Insolvency and Bankruptcy Code, 2016 (“the Code”) is unique legislation that was enacted by the Government of India (“GoI”) in order to streamline the process of winding up, liquidation, and resolution of debt-ridden companies. This legislation has been an important development to further the mission of “Ease of Doing Business”.

The Code provides that on the occurrence of a default, the Creditors of the company can file an application in the Hon’ble National Company Law Tribunal which is the Adjudicating Authority (“AA”) under the Code. The applications under the Code can be filed under Section 7 of the Code by the Financial Creditors of the Company, under Section 9 of the Code by the Operational Creditors of the company and by the Corporate Debtor itself under Section 10 of the Code.

One of the important provisions of the Code is Section 14 which provides for the implementation of Moratorium once the said application against the Corporate Debtor is admitted by the AA. The period of Moratorium begins from the admission of the application by the AA till the completion of the Corporate Insolvency Resolution Process (“CIRP”) or the completion of 180 days, whichever comes earlier. During the moratorium, no judicial proceedings for recovery, enforcement of security interest, sale or transfer of assets, or termination of essential contracts can take place against the Corporate Debtor. It is important to note that if a Resolution Plan is not received within the CIRP period, the AA shall mandatorily order the liquidation of the Corporate Debtor in respect of whom the application under the Code was filed.

The Indian Aviation sector is also covered by the Insolvency Laws in India. It must be noted that the Indian Aviation sector is also one of the most capital-intensive businesses which require the infusion of a huge financial capital with only marginal returns for the investors in case of efficient functioning.

In FY 2021, the domestic aviation industry witnessed a YoY(Year on Year) decline of ~73% in its capacity, as measured by the available seat kilometres (ASKM). Coupled with the restrictions on capacity deployment by the Ministry of Civil Aviation (MoCA) to contain the spread of the Covid-19 virus and various state-specific restrictions and quarantine regulations, this will result in a 60% YoY decline in domestic capacity in FY 2021.

It is also important to note here that one of the most important cost factors for the airline operators is the cost of leasing the airlines by the fleet operators. In India, almost 80% of the total fleet being operated by the airline companies are leased, with Avolon, GE Capital Aviation and BBAM being the top three fleet lessors in India.

The introduction of the Cape Town Convention Bill and its effect on insolvency

The Convention on International Interests in Mobile Equipment and Protocol on Matters Specific to Aircraft Equipment was ratified by India on 1^st July 2008. Subsequently, on 8^th October 2018, the draft of the proposed bill, i.e., the Cape Town Convention Act, along with the Cape Town Convention and Protocol was uploaded on the website of the Ministry of Civil Aviation inviting comments from the general public.

The explanatory notes for the proposed bill define the legislative intent behind proposing the draft bill. It states that one of the objectives of introducing the bill is to achieve efficient financing of various equipment like engines, helicopters, and airplanes. It is clear from this statement that the main intention to ratify the above convention and propose the draft bill is to reduce the overall cost of airline financing, which means, to reduce the cost of leasing the aircraft and other equipment like engines and helicopters.

One of the major issues faced by the Indian Aviation Industry is the huge amount of lease which needs to be paid to the lessors. This cost is related to the risk which the lessors undertake in order to lease equipment to the airline’s operators. According to the Insolvency and Bankruptcy Code, 2016, the lessors of any property are prohibited from recovering such property from the possession or occupation of the Corporate Debtor during the CIRP. This provision of the IBC has led to a major roadblock for the lessors from being able to de-register the aircraft and equipment from the possession of the operators which consequently leads to a high depreciation of the equipment.

The Cape Town Bill gives a respite to all the stakeholders from the negative impact of the Code. The bill also contains some basic default remedies such as deregistration and export of aircraft back to the lessors even during the moratorium period as a measure of speedy interim relief. Hence with the introduction of the bill, the lessors of the aircraft and other mobile equipment will involve lower risks as a result of which, the amount of lease charged by the lessors will be lower and the benefits of these lower costs will finally be transferred to the passengers or the end-user of the product.

Overriding effect of the Cape Town Convention Bill

For the effective implementation of new legislation, it is important that some necessary changes are also made in other effective laws in the country which impact the same industry. The implementation of the Cape Town Bill would require India to make changes in other laws like; Code of Civil Procedure, 1908, The Companies Act, 2013, The Insolvency and Bankruptcy Code, 2016 etc that impact the functioning of the aviation sector. Interestingly, the provisions of the Cape Town Bill have been given an overriding effect over the provision of other laws which impact the functioning of the Aviation Industry, which is important because once the bill is implemented, Section 14 of the IBC, as discussed above, could prove to be a major hindrance in achieving the purpose of the Cape Town Bill.

While ratifying the Cape Town convention along with the Protocol, India has chosen to apply the first alternative, i.e., alternative A of Article XI of the Cape Town Convention. India will apply Article XI, Alternative A, of the Protocol in its entirety to all types of insolvency proceedings, and that the waiting period for the purposes of Article XI(3) of that Alternative shall be two (2) calendar months. (General declaration under Article XXX(3) in respect of Article XI providing for the application of Alternative A in its entirety to all types of insolvency proceeding). In the given alternative, during the CIRP of a Corporate Debtor, the Resolution Professional shall, either cure all the defaults of the Corporate Debtor as per the agreement prior to the commencement of the CIRP or give back the possession of the aircraft to lessor within 60 days() from the commencement of CIRP or on any such date when the Lessor becomes liable to such possession of the aircraft or the aircraft object as per the agreement, whichever is earlier. It is pertinent to mention here that if the defaults of the corporate debtor other than a default constituted by the opening of insolvency proceedings have been repaid by the Corporate Debtor within 60 days from the commencement along with the undertaking to diligently perform all the future obligations that may arise[8] then a second waiting period shall not apply in respect of a default in the performance of such future obligations.

Opinion

The Cape Town Bill brings relief to the lessors and owners of the fleet which are leased to the Indian airline companies. Aircraft and other equipment that are used by the industry are expensive due to which it is important that such assets are utilized in the most optimum manner by the lessees. However, with the introduction of the Code, once an application under Section 7, 9 or 10 was admitted by the AA, it is next to impossible for the lessors or the owners to regain possession over such equipment due to the moratorium in effect under Section 14 of the Code. This leads to high depreciation of that costly equipment as the lessees or the Insolvency Professional, as the case may be, are unable to maintain the equipment and ensure optimum utilization of the assets. The Cape Town Bill, once it is implemented by the GoI, will ensure that lessors either receive the amount due to them by the Corporate Debtors within a period of 60 days from the date of commencement of the CIRP or rightfully de-register the aircraft or any other equipment leased and take possession of such aircraft or equipment. The overriding effect which is given to the bill over current laws will ensure that the provisions of the Bill override the provisions of the Code and hence, it will nullify the effect of the moratorium period over the airline equipment leased by the Corporate Debtor and thus it will ensure effective implementation of the bill post its introduction.

References

[1] Kunal Godhwani, Moratorium under the Insolvency and Bankruptcy Code, 2016 – Impact on Pending Proceedings.

[2] Indian Aviation Industry, Industry to report a net loss of ~Rs. 210 billion in FY2021; to require additional funding of Rs. 350-370 billion over FY2021 to FY2023, December 2020.

[3] Pg. 12, PWC, Aircrafts leasing in India: Ready to take off.

[4] Explanatory note for the proposal for enactment of the Cape Town Convention Act, 2018 for implementation of the Cape Town Convention/Cape Town Protocol in India.

[5] Section 14(1)(d) of the Insolvency and Bankruptcy Code, 2016.

[6] Explanatory note for the proposal for enactment of the Cape Town Convention Act, 2018 for implementation of the Cape Town Convention/Cape Town Protocol in India.

[7] Point 6, Explanatory note for the proposal for enactment of the Cape Town Convention Act, 2018 for implementation of the Cape Town Convention/Cape Town Protocol in India.

[8] Paragraph 7, Article XI-Remedies on Insolvency, Protocol to the convention on international interests in mobile equipment on matters specific to aircraft equipment.

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:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The Indian Constitution of 1950 and that of 2021 : a long journey

By

Rachit Garg

-

October 17, 2021

This article is written by Arya Mittal from Hidayatullah National Law University. The article seeks to make a comparative analysis of the Indian Constitution at its inception and in contemporary India.

Table of Contents

Introduction

Did you know that nearly two thousand changes were made in the draft Constitution before it was finalized? It took the efforts of three hundred and eighty-nine members of the Constituent Assembly for two years, eleven months, and seventeen days to prepare the longest written Constitution in the world. It has been nearly seventy-one years since the Indian Constitution has been enforced. Ever since its enforcement, it has been trying to serve the needs of a diverse country such as India. The framers of the Constitution played a crucial role in drafting a Constitution inclusive of provisions to cater to the needs of India’s diverse population. However, with the passage of time, certain amendments were brought about in the Constitution. Many of these changes have been applauded and criticised simultaneously but the Indian Constitution has enforced rule of law through all these changes. Some of the important amendments that have been brought in the Indian Constitution have been discussed in this article.

Brief background of the Indian Constitution

The Constitution of India is the world’s lengthiest written constitution. It was enacted on November 26, 1949, and enforced on January 26, 1950. It contains 448 articles divided into twenty-five parts and twelve schedules. Initially, it contained 395 articles divided into twenty-two parts and eight schedules. It took one hundred and four amendments for the Constitution to evolve to its present form.

Analyzing the differences between the Indian Constitution of 1950 and 2021

Preamble

The Preamble of the Indian Constitution is often referred to as the introduction letter to the Indian Constitution. It is ironic how the world’s longest written constitution has just sixty-three words in its Preamble. Even the Preamble that we have today is not the same as that of 1950. The current Preamble declares India as a Sovereign Socialist Secular Democratic Republic. Initially, the words socialist and secular were not a part of the Preamble. They were incorporated during the emergency in 1976 via the Constitution (Forty-second Amendment) Act, 1976.

Article 16

One of the major changes in the Constitution has been brought in Article 16 through a series of amendments. The provision deals with equal opportunity in public employment. The first in this series was the Constitution (Seventy-seventh Amendment) Act, 1995 which was introduced to nullify the effect of the Indira Sawhney case (1992) so that reservations could be allowed in promotions. By this amendment, Article 16(4A) was inserted. Later two amendments relating to reservations were brought in the same year, one of which involved Article 16. Article 16(4B) was inserted which allowed the government to carry-forward the vacancies of the previous year even beyond the fifty percent limit through the Constitution (Eighty-first Amendment) Act, 2000. The year after that, the Constitution (Eighty-fifth Amendment) Act, 2001 was passed to amend Article 16(4A) and as a result of the amendment, consequential seniority was introduced for promoted SC/ST candidates. Recently, Article 16(6) was introduced through the Constitution (One Hundred and Third Amendment) Act, 2019 which provided for ten percent reservation in favor of economically weaker sections of the society.

Article 21A

Article 21A did not exist in the Indian Constitution adopted by the Constituent Assembly. It was only in 2002 that the provision found its place in the Indian Constitution through the Constitution (Eighty-sixth Amendment) Act, 2002. The provision makes it a fundamental right to have access to free elementary education for children aged six to fourteen years of age and it is the duty of the State to provide so. Nevertheless, one must know that education was earlier provided in Part IV under Article 45.

Article 31

Article 31 dealt with the fundamental Right to Property. The provision was later removed by the Constitution (Forty-fourth Amendment) Act, 1978, and Articles 31A, 31B, 31C, and 300A were inserted. Though the first three provisions are a part of Part III of the Constitution yet they did not provide any fundamental right to own property, rather they were the imposition of restrictions for owning a property. Currently, the Right to Property is only a legal right under Article 300A.

Article 246A

Article 246A was not initially present in the Constitution. Since the governments did not have the power to levy and collect goods and service tax, the Constitution (One Hundred and First Amendment) Act, 2016 was passed to give power to the Central and state governments to collect Goods and Service Tax (GST) on its supply. GST was made applicable from July 01, 2017. Many of the indirect taxes have been subsumed under GST. It has been beneficial legislation that has been fruitful in reducing compliances of businessmen and tax burden on end-users. It will prove to be even better in the future.

Article 326

We all know that India is a democratic country and we vote our representatives to the central and state legislature. Article 326 provides that voting in elections of Lok Sabha and various state legislatures is done by adult suffrage i.e. citizens of India aged above eighteen years of age. However, it was not before the Constitution (Sixty-first Amendment) Act, 1988 that the age for voting was reduced to eighteen years. Prior to the amendment, an eligible voter had to be of twenty-one years of age which was later reduced to the age of eighteen years in 1988.

Article 338

The original Article 338 provided for the Constitution of the National Commission for Scheduled Castes and Scheduled Tribes for safeguarding their rights and assuring their welfare since the people belonging to SC and ST communities were in a miserable state after independence due to the discrimination and torture they had to face. Earlier, a special officer was appointed for this purpose which was later replaced by a multi-member commission through the Constitution (Sixty-fifth Amendment) Act, 1990. Later, an amendment was brought to bifurcate the commission for Scheduled Caste and Scheduled Tribes.

Article 338A

As mentioned above, an amendment was introduced to bifurcate the commission. By virtue of the Constitution (89th Amendment) Act, 2003, Article 338A was introduced and the National Commission for Scheduled Tribes was formed. Therefore, post-amendment, Article 338 exclusively dealt with the National Commission for Scheduled Castes and Article 338A exclusively dealt with the National Commission for Scheduled Tribes. This bifurcation and multi-member commission was not prevalent in the Indian Constitution in 1950 and was only introduced in later years through amendments.

Article 338B

Article 338B was introduced a couple of years back by the Constitution (One Hundred and Second Amendment) Act, 2018 which formulated a National Commission for Backward Classes. The amendment came in 2018 after the National Commission for Backward Classes was provided with a Constitutional status under the Ministry of Social Justice and Empowerment.

Article 370

Article 370 was a temporary provision in the Indian Constitution that gave special status to the state of Jammu and Kashmir in terms of autonomy in the formation of its own Constitution and laws. However, in 2019, the Constitution (Application To Jammu And Kashmir) Order, 2019 was made by the President and Jammu and Kashmir Reorganisation Act, 2019 was passed by the Parliament in order to amend Article 367 of the Constitution, which had earlier created a deadlock. Consequently, Article 370 of the Constitution was abrogated.

Part IVA

As stated earlier, the Indian Constitution of 1950 had only twenty-two parts. Later, three parts were added through amendments. One of them is Part IVA of the Indian Constitution which deals with fundamental duties. Part IV-A was added to the Indian Constitution through the Constitution (Forty-second Amendment) Act, 1976. Part IVA has just one provision i.e. Article 51A which deals with the fundamental duties of the citizens. These fundamental duties were incorporated in the Constitution with the aim of curbing unconstitutional and disruptive activities. It lays down certain fundamental duties which every Indian citizen should obey which are moral obligations and are not enforceable in a court of law.

Seventh Schedule

The Seventh Schedule deals with three legislative lists i.e., Union List (List I), State List (List II), and Concurrent List. (List III). Initially, the Union List contained ninety-seven items. Thereafter various entries were added and omitted through different Constitutional Amendments. Currently, the List has one hundred entries. Further, List II contained sixty-six times in the beginning. Thereafter, five entries were transferred from List II to List III through the Constitution (Forty-second Amendment) Act, 1976. In between, various amendments also took place to change the wordings of different entries.

Eighth Schedule

Initially, the Eighth Schedule contained fourteen languages in 1950. Later, Sindhi was added through the Constitution (Twenty-first Amendment) Act, 1967. In 1992, Konkani, Manipuri, and Nepali were added through the Constitution (Seventy-first Amendment) Act, 1992. Lastly, Bodo, Dogri, Maithili, and Santali were added through the Constitution (Ninety-second Amendment) Act, 2003. It was important for the representation of many other linguistic committees for commission formed under Article 344 of the Constitution.

Tenth Schedule

The Tenth Schedule deals with anti-defection laws. These were incorporated in the Constitution to ensure that politicians do not change their parties frequently for their personal interests. The Schedule prescribes certain disqualifications on grounds of defection. As discussed above, the Indian Constitution only had eight schedules in 1950 during its enforcement. Hence, it makes it evident that the Schedule was added by an amendment. The Constitution (Fifty-second Amendment) Act, 1985 was introduced to incorporate the Tenth Schedule. Thereafter, certain changes were brought in the Schedule through the Constitution (Ninety-first Amendment) Act, 2003.

Conclusion

Though these are not the only significant amendments in the Constitution, since every amendment is significant in its own sense, an attempt was made to understand the long journey that our Constitution has travelled over the years. It has been able to cater to the needs of a diverse country such as India with one hundred and four amendments in the past seventy-one years. Different amendments have been passed in these past seven decades to address economical needs, social needs, political needs, etc. In the process, the Indian Constitution has tried to become more just and equitable. It has led a long journey to secure justice, equality, liberty, and fraternity for all its citizens as mentioned in the Preamble of the Indian Constitution.

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: