An overview of export marketing entry strategy

By

-

October 15, 2021

This article is written by Ms. Nikara Liesha Fernandez from School of Law, Christ University, Bangalore. This article deals with the various types of export marketing entry strategy and the elements of export marketing mix.

Introduction

Marketing is one of the most crucial processes for a commercial concern. The market strategy adopted by a firm can either make or break the success of the product. It is only through effective marketing that a manufacturer can hope to gain the due recognition for his/her product in order to make up for the costs involved in producing the product. Additionally, he/she can also garner a significant profit for the same which is indicative that the public or the target market has appreciated his/her product in the right sense and is responding positively towards the same to sustain a continued business venture for the entrepreneur. This facilitates a type of mutual gain for both the manufacturer as well as the individuals of the target market.

Global or international marketing is the process by which an organization decides to take their products beyond domestic markets into the international arena which has many pros but also a significant number of risks as well. Philip Kotler, one of the world’s most famous marketing authors has defined global marketing as being ‘concerned with integrating and standardizing marketing actions across a number of geographic markets.’

The benefits and risks of global marketing

The benefits of global marketing are access to a broader market. This refers to an international population which is not only restricted to the geographical borders of a country. Global markets enable an organization to increase their market share and customer base, providing them with limitless networking opportunities, both in cases of new customers as well as new business partners. This opens the door for future business opportunities and boosts a brand’s reputation, image and credibility. Customers are more likely to prefer a brand that is known internationally as they perceive a certain superiority of it over brands which are limited to domestic boundaries.

On the flipside, global marketing also poses an organization with a high level of risk especially with regard to costs and investments involved, greater competition as the brand enters a market that is not part of its motherland and so cultural, differences, preferences of foreign customers, changes in government rules and regulations and communication difficulties due to language barriers.

Export marketing entry strategy : an insight into the key elements

If making the decision to introduce your products into the global market is not daunting enough, taking a gamble on its eventual success is absolutely nerve-wracking for any such organization. Even if your product does get a lot of attention and recognition in the beginning, sustaining the same over time is challenging in the face of competitors, both domestic and international who are churning out products trying to one-up yours. Though there is no sure-fire way to ensure complete success of your product in the global market, there are some key elements to be kept in mind before making the decision to go global. They are as follows:

(i) Identifying the right potential market

This involves undertaking a rigorous market research into the rules and regulations prevalent in the target foreign country, buying trends of the consumers and their purchasing power as well as similar products to yours which are already prevalent in the foreign market as duplication of products is a guaranteed slump in sales.

(ii) Formulating proper export marketing strategies

These include direct exporting, piggybacking and countertrade to name the essential strategies which shall be further elaborated below.

(iii) Creating good marketing communication tools

Tools that include advertisements of catalogues and price lists that are easily understandable by the target customers, brochures and websites which are easily accessible by the target audience can be employed for this step. Another essential component of creating a good marketing strategy is to ensure that the language of the content is in the same language that is spoken in the foreign country. Retaining your own language which might form a minority language in the foreign country would defeat the process of successfully breaking into the market.

(iv) Adopting a sound promotion policy

This would depend on the findings of the market research done in the initial step and would help determine the level of investment you should put forward for promotional purposes, which media you would choose for the same depending on the size of the advertisement and the date you want your advertisement to be showcased.

The key strategies

Exporting

Exporting essentially means directly selling goods in a country different from the one in which they have been manufactured or produced. This is very famous among small firms who want to get a feel of the foreign markets before they directly establish their firms in the market. It is a low-risk and one of the less costly strategies which make it easier for a product to break into a foreign market. In this strategy, the costs of production are minimized as the raw material and other material costs are that of the home country itself. There is no need for foreign investments in production as well and this is another way the firm can cut back on costs.

The firm is, however, required to put in a lot of effort and investment into their marketing strategies instead. Exporting firms often employ the assistance of agents or contractors in the foreign country who effectively control the marketing of the product and become the face of the brand in the foreign country. This is potentially dangerous as well as the manufacturer has a lack of control over the agent’s actions. The firms also incur heavy costs on the demand of the distributors, transportation costs and tariffs.

Piggybacking

Piggyback marketing is an interesting concept which is successful mainly in the case of unique products or services which are usually distinctive and first-timers in a market. This is another low-cost marketing strategy wherein a mutually beneficial, symbiotic relationship is formed between two firms that deal in complementary but not competitive products who tie up with each other in selling each other’s products. Most often, smaller firms tie up with larger domestic firms who are already involved in exporting their own products and have established their position in international markets as well as have a dedicated customer base.

This way, the smaller firm can minimize both cost and risk as it is essentially the larger firm that is marketing the former’s products internationally, as the smaller firm still continues to sell domestically itself. Thus, through this process, the smaller firms can slowly establish their name in international markets under the wing of the larger exporting firm. Although it is easier to find a larger domestic firm to enter into a piggybacking strategy with, it is also possible, but slightly more challenging for smaller firms to enter into a piggybacking strategy with an international firm itself. The catch with the latter however is that the smaller firm must have a truly exceptional product to offer.

Countertrade

The countertrade strategy can be understood as the modern version of the barter system. In the case of smaller firms, this strategy is only adopted when all other payment methods have been exhausted and there is no other alternative to payment due to the problems regarding lack of currency. In place of currency, therefore, goods and services are exchanged rather than payment. This is very relevant in international trade where structuring a uniform means of payment is challenging due to differences in the currencies of the various markets involved. The advantages of countertrade are that it overcomes liquidity challenges. As there is no physical exchange of cash due to non-availability of the same, it is able to sustain and sometimes even increase sales by overcoming currency barriers and paying through kind, like a barter system instead. This ensures that no market share is lost to the competitors and enhances the goodwill of the company itself thus enhancing customer-supplier relationships.

Examples of elements included in the export marketing mix

An export marketing mix consists of the relationship between the internal and external forces which are related to the marketing of a particular product in an international market. Striking the right balance between these elements to form an effective marketing mix is key to establishing a successful marketing plan.

Product support

Product support involves finding out where you want to source your product from, match your already existing products to the market through good market research to ensure that they are still relevant and so that there is no overlapping between them and the new products you want to launch and finally formulating new products based on appropriate market research. Another important aspect of product support is putting forward the manufacturing specifications in case you yourself are not the manufacturer of the product thus ensuring production control and also putting the product through appropriate quality and safety tests. Next comes the packaging part of the final product which includes processes like labelling and other packaging related processes.

Price support

Like the name suggests, price support involves fixation of prices on the products you intend on putting forth in the market. For this aspect of the product mix, you need to decide whether you want to offer any discounts on the product and distribute and maintain price lists with relation to the same.

Promotional support

Promotional or selling support includes deciding the channels through which you wish to advertise and promote your products, be it through literature, direct mail, exhibitions and trade shows, print media or direct selling. Certain organizations who have their firms spread throughout international markets might choose to employ agents or a sales force through the payment of commissions for the process of promoting their products.

Inventory support

Taking stock of inventory or inventory management is another important aspect of the export marketing mix to prevent collection of surplus products that are likely to get outdated and go to waste. This includes processes related to warehousing, ensuring application of raw materials and parts as well as finding authorised sources of credit.

Distribution support

Distribution support involves those aspects which help in distribution of the finished product to the final consumers. This involves the provisions for access to funds, raising capital from a variety of sources and efficient processing of orders for timely delivery. In case of export, this step also includes getting the required documentation and insurance ready and freight forwarding.

Service support

Service support involves all those processes required for the servicing of the product before and after sales. Processing of quotes for the product, gathering marketing information and intelligence, setting of warranties and guarantees and ensuring follow through action of the same and customer care are essential parts of this section of the marketing mix. Setting up of budgets, data processing systems, tax and legal services in case of any disputes with translation facilities as well as the making of sales reports and catalogues are also components of this part of the mix.

Financial support

Financial support is rendered in the form of billing and collecting invoices, means of hire and rentals and auditing. Planning the distribution of finances by the organization and scheduling of the data allocated in the budget to ensure financial soundness are also important components of the financial support component of the export marketing mix.

One method of financial support is through direct investment. This is mostly taken on by multinational organizations who choose to directly invest in wholly-owned subsidiaries. This results in the former completely and directly owning the manufacturing or marketing subsidiaries abroad.

Examples

An example of how much exactly an organization can grow through the right financial support can be seen in the case of Diamond Building Products (DRTs) with as a subsidiary to Thailand’s first privately owned cement company, Siam City Cement which took up Siam Cement which exercised a virtual monopoly over the domestic cement market for quite a few generations. In the face of the Asian Financial Crisis of 1997, DRT was sold to a group of local private investors. These investors prudently put DRT up on the stock exchange of Thailand as a public company which has now borne fruit as DRT is now one of the leading players in the manufacture of fibre cement and concrete roof tiles.

Another pertinent example is the growth of the Toyota Company. Starting out as a small scale industry in its hometown of Japan, through adopting a sound financial support policy, it managed to branch out to the regional markets. On seeing an overwhelming response, it adopted suitable export strategies to crack the international and global markets and has thus become the true global marketeer we see it as today. It’s global reach is not just limited to the marketing process but includes its own manufacturing plants in foreign countries itself including the employment of local labour, advertising agencies and adoption of unique marketing strategies tailor-made to suit every consumer’s needs depending on the target market in the target country.

Conclusion

Summing up from the above, most organizations see an entry into a foreign market through export market entry strategies as lucrative for their career and growth as an organization despite the risks involved. Through adoption of a sound export marketing entry strategy and selection of an appropriate export marketing mix from the data elaborated upon above, firms can increase their chances of success in the international market.

References

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

How to conduct effective POSH training

By

Abanti Bose

-

October 15, 2021

0

This article is written by Shraddha Abhijit Yadav, pursuing Certificate Course in Prevention of Sexual Harassment at the Workplace from Lawsikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

In today’s world, both men and women have equal opportunities for work available. It has been observed that people working at different levels especially females, to be more specific, suffer from sexual harassment at the workplace. In the past few years, the number of sexual harassment cases has increased. After the Vishakha case, in 1997, the Supreme Court formulated the Vishaka guidelines making it mandatory for organisations, whether working in the private or public sector to establish a mechanism for redressal of sexual harassment complaints. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (hereinafter the Act), was passed in 2013 which is an Act to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Prevention of Sexual Harassment (POSH) training has been made compulsory in India since 2013 when the Act was passed. According to the Act, any company/organization with more than 10 employees should have mandatory POSH training for all their employees and employers.

What is POSH training?

In order to ensure that the employees can easily differentiate between what is correct and incorrect behaviour, POSH training is necessary. It also throws light on the legal aspect of the POSH Act. The Act is extremely helpful for female employees who have to face sexual harassment at the workplace as the POSH Act defines the scope of the Act, rules and action plan for the same. The main aim of POSH training is to educate the employees about the law that governs sexual harassment and thereby prevent any such instances in future. Training gives employees a clear idea about what type of behaviour can fall under sexual harassment.

Why is it necessary?

The employee may not always be a victim. He/ she can also be a culprit. Posh training not only helps the employees to seek justice if they suffer from sexual harassment but also to prevent them from being charged wrongfully. Only when the employees receive formal training they will be able to understand what sexual harassment at the workplace means. It helps the employees to understand which acts are not professionally acceptable at the workplace.

When the employees of a company indulge in sexual harassment, the employer under whom they are working can be held legally responsible for the same. Its always beneficial to provide harassment training, create anti-harassment policies and create a no tolerance workplace rather than defending oneself in a sexual harassment lawsuit.

Reasons why it is mandatory for employers to conduct POSH training

Legal mandate

The Sexual Harassment Act(Prevention, Prohibition and Redressal) which was passed in 2013 made it mandatory for every employer vide Section 4 who has more than 10 employees in his organization to form an Internal Complaint Committee (ICC) and to provide POSH training to the employees in order to create awareness about POSH and understand legal provisions for the same. The Act under Section 26 prescribes a penalty of Rs 50,000 to be levied on the employer if he fails to comply with the same.

Awareness

Workshops and awareness programs should be conducted on regular basis to make the employees aware of what type of behaviour falls under sexual harassment and vice versa. Awareness programs should be conducted for all the employees at different levels irrespective of their gender and position in the organization. The training for the employees should cater to the perceptions’ of sexual harassment, its impact on individuals and organizations, why should it be prevented and how should it be prevented, understanding the policy and complaints mechanism. This will ensure the employer that the work environment is healthy and will never turn hostile.

Safe working environment

When the employees are well trained about what is appropriate and inappropriate behaviour it minimizes the chances of sexual harassment complaints. Employees feel safe, working with the organization when they understand that the organization is actively involved in training employees. It sends a strong message to the employees that such behaviour will not at all be tolerated in the company and they have to take utmost care as to how to behave and what is unacceptable behaviour.

To safeguard the company’s reputation

The reputation of the company is at stake if an incident of sexual harassment takes place and it may hamper the company’s reputation. It will create a negative impact on the employees as well. Thus by providing POSH training the management can ensure that they are in the best position to tackle any such incident if it takes place and prevents it from getting leaked.

To increase employee retention

A safe working environment, free from sexual harassment will ensure high productivity and performance from the employees as the employees are aware that they are protected and will also lead to employee retention. Everyone is willing to work in an environment which is free from any type of verbal and physical abuse, mental torture and lewd comments.

Steps for effective training

Conducting POSH training requires special skills as it is not like conducting any other training. If the training is not undertaken in the right way it may create fear in the minds of male employees and female employees may misunderstand it to be an instrument to lodge false complaints and may misuse it for their selfish gains.

Every organization is different. Their culture, work ethics, no of employees, male-female ratio everything differs. Several things should be kept in mind while providing POSH training for any organization. Some of the things that need to be kept in mind are:

Knowledge about the culture of the company.
Understanding the diversity and going through the strategic plan.
Getting insights on employee demographics.
Understanding the challenges a company is facing as far as employees behaviour is concerned.
Seeking clarity on business, workflow, kinds of customers, vendors and suppliers.
Thorough knowledge about the company’s sexual harassment-related policy.
Insight into who are the Internal Complaints Committee (ICC)members.
Being aware of the structure of the Internal Complaints Committee (ICC)
Knowledge about any standard email-id company is using for POSH related complaints.
Understanding from the management the message they want to convey at the end.

Though the POSH Act remains the same, what makes the difference is the delivery. Many are still not very open and comfortable to talk about sexual harassment openly. A trainer must understand and analyze the social background of his audience. It helps in framing relatable examples and which in turn results in connecting with audiences effectively.

How to design the POSH training module?

Create mobile-first training modules

POSH training must be mandatory for every single employee in the organization, may that be a junior-level employee or the top-level management. If a mobile-friendly POSH module is created, it will be easily accessible to all the employees, more employees can be trained in one single go and it also provides the flexibility of time to the employees as they can access the material as per their convenient time and read the same as many times as they want. Since the content of a mobile training module is short and crisp it becomes easy for the employees to go through the same quickly and remember the information learnt.

Define the types of harassment

Make people understand what constitutes sexual harassment. There are times when the victims aren’t sure if they must complain, they’re unsure if what they have faced could be termed as sexual harassment or not. It could be a verbal comment, a suggestive joke, quid pro quo etc.

The incident doesn’t necessarily have to occur within the workplace, it could be at a social gathering organized by the company, business trip, via electronic communication such as SMS, email, telephonic conversation etc. Or the situation could be vice versa, some employees might not realize that their actions are creating an intimidating and hostile environment.

In order to avoid any confusion and to keep everyone on the same page, you must define the types of sexual harassment so that everyone is conscious and well aware of their actions and try to create a safe and healthy workspace.

Create scenario-based or animated content

Humans have a good pictorial memory. It becomes easy to understand something explained with the help of pictures instead of text. For a better and in-depth understanding of the situations, scenario-based learning modules will be the most effective. The employees can be given scenarios and several options to choose from, so that they know what constitutes sexually offensive behaviour. In order to keep the users engaged in the training program, making use of graphics, animation and moving images can be highly effective. Animation makes it easy to understand the right and wrong behaviour at the workplace. It can create a greater impact by keeping the audience engaged and also help in the high retention of information. It will enable to create a culture of mutual understanding and equal opportunity for the employees.

Create interactive quizzes

Creating interactive quizzes to check your employees’ understanding once they have taken POSH training is highly recommended. It can be in the form of MCQs, Yes or No type questions in between the chapters. This will make sure that the learners have understood the concept well, which was explained in the course module and also are completely aware of the repercussions of misbehaviour with their colleagues. Mobile learning modules should be created in such a way that when someone takes a quiz, after the final submission the answers are immediately available for the instructor to evaluate. Thus the response of each employee can be viewed by the trainer and instant feedback can be provided.

Get in-depth analytics

It is important that an analytics feature is included in your delivery platform. Each employee’s level of understanding and progress can be easily gauged with the help of an analytical report. It will provide an in-depth analysis of how many employees have taken the course, appeared for the test (taken the quiz)and performed well in the same. It is a necessary step to make sure that every employee in the organization has undergone POSH training and is fully aware of the types and consequences of sexual harassment at the workplace. Rather than getting tentative data about employees performance, the exact information can be fetched by this, which can further be used in order to make required changes in the POSH module after checking its efficacy. An effective POSH training module can be designed and delivered with the help of a detailed analytics report.

Set up a redressal forum

Your employees must be aware of whom to approach if they face harassment at the workplace. Every organization is expected to comply with the POSH law, and non-compliance could lead to monetary penalties for the employer. You could set up an online platform where employees could come forth with their complaints without any hesitation. Ensure that your employees are aware of the redressal forum in your organization, and also of other online complaint portals such as SHe-Box (Sexual Harassment Electronic Box).

According to Section 4 of the Act, every organization must have a POSH redressal forum. In case of any complaints, the employee is expected to approach the Internal Complaints Committee (ICC) established within your organization.

A minimum of four members are needed to form the ICC, and the composition should include a senior woman employee employed at the workplace/or belonging to any other organization if the workplace does not have a senior woman employee and two employees at the workplace who have awareness in gender issues or social work or committed to the cause of women or have legal knowledge.

An external member must also be appointed who is associated with an NGO, is a social worker, or someone who is familiar with issues/laws relating to sexual harassment.

Increase awareness across the organization

It is extremely important that all the employees working in the organization have knowledge about the rules of the POSH Act, penalties and point of contact. According to Section 9 of the Act, a sexual harassment complaint needs to be filed within three months after the incident has taken place. The culprit can be charged with a fine. Any breach of confidentiality regarding the complainant and connected information will result in a penalty which will be collected by the employer. In order to increase awareness, companies can conduct workshops for safety and self –defence at regular intervals, and send emails emphasizing the importance of a safe working environment. If people are not aware of the law such incidents will take place again and again which will hamper the reputation of the organization and people working for the same. A female who has, or is facing harassment should not refrain from lodging a complaint out of the fear of humiliation or her image getting tarnished. Females should feel absolutely safe at the workplace and the organization should make sure that everyone is aware that sexual harassment in any form will not be tolerated and immediate and strict action will be taken against the perpetrator. Ensure that the company has a well-constituted ICC which fulfils all the requirements given under the POSH Act and complies with all the rules of POSH law.

Conclusion

POSH training is necessary to foster a respectful and safe working environment for women. One incident is enough to create a bad reputation for the company and to ruin the career of the accused employee. So, you must ensure that your employees are sensitized about the boundaries of acceptable and unacceptable behaviour.

References

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

Impact of GDPR in business privacy policies

By

Sneha Mahawar

-

October 14, 2021

0

This article has been written by Shreya Jain pursuing a Diploma in Business Laws for In-House Counsels. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

General Data Protection Regulation, hereinafter referred to as GDPR, is an indispensable part of the businesses providing goods or services to the European residents. To comply with the GDPR and avoid huge data breach penalties, businesses have to take care of a few essential points in their workings; and the formation of an effective privacy policy is one such point. Henceforth, a major GDPR concern for a company is to serve an organization with a comprehensive data and privacy framework that comes under the ambit of the Regulation. Firstly, let us understand what GDPR is and what impact it has on ongoing businesses and organizations.

What is GDPR

“GDPR is a legal framework that sets guidelines for the collection and processing of personal information from individuals who live in the European Economic Area (EEA).” It aims at protecting the rights of the users in securing their data; ensuring the amendments of data privacy laws with the ever-changing landscape of technology; and creating legislation for the EU as a whole. It had various effects on the companies and businesses during its advent.

The advent of GDPR

With the enactment of GDPR in the EU, it had some widespread effects across different companies and has multiple expected and unexpected results, which include:

Changing the position of data protection

Data protection has become an integral part of the business world after the arrival of GDPR. Other countries have also started focusing on data protection. California in the US has also signed into law “California Consumer Privacy Act”.

Greater reliance on third parties and data experts

Companies started seeking GDPR legal advice from data experts and other experts outside the companies and spent enormous amounts on its compliances. Demand for Data Processing Officers has risen over 700%. Enforcement agencies were established which include- The European Commission (EC), European Data Protection Board (EDPB), and the 28 EU Member States (each country has agencies to help regulate the GDPR).

Businesses were overall unprepared

There were mixed views and lots of confusion in the mind of companies regarding their compliances. They were under-confident and were worried to safeguard their companies from paying off strict penalties.

Fewer fines have been given than expected

Companies were not fined much in the year the GDPR was enforced and only $63 in fines were issued.

Enforcement agencies overwhelmed with the scope

Enforcement agencies were overwhelmed with the number of complaints filed and the data breaches recorded.

Completely cut ties with the EU residents

Fewer companies who could not meet the requirement to comply with GDPR, resultantly cut the ties with the EU residents, hence, limiting the market for EU residents.

Get rid of their non-compliant data

Other companies got rid of the data they were holding and decided to start afresh.

Huge expenses incurred on the GDPR prep by the countries across the world

UK companies spent around $1.1 billion collectively on GDPR, American companies spent around $7.8 billion on GDPR prep.

Involvement of supplementary agencies

The hiring of supplementary agencies to navigate the GDPR’s norms and compliances such as DPOs or other data privacy experts because in-house counsel was less equipped with data privacy laws.

GDPR nevertheless focuses and aspires to protect the privacy of users/ data subjects and make companies liable/ accountable in case of any data breach. Companies are also liable to pay fines if they fail to secure data breaches. Therefore, companies are legally bound to create an effective privacy policy.

What is a Privacy policy

Privacy Policy is primarily a document contained on a website that states how a business will collect, store, protect, use, or dispose of personal information provided by its users.

Why is Privacy policy necessary

It is required by law for a company/organization to have a Privacy Policy in place if you are collecting personal information from its users. Privacy policy helps in building trust with users. It also helps in meeting legal requirements. Sometimes, it is required by other concerning parties to have a privacy policy intact in an organization. It helps in evading costs and expenses in legal matters due to an ineffective privacy policy, to make a profit by building the trust of the users, avoid risks, and keep the earning of the organization safe and secured.

How do you safeguard users’ privacy rights

Consent

Companies are required to have explicit consent from the users to collect, use, or store their data.

Access to information

Companies must provide documentation of users’ data whenever asked for it.

Data erasure

Companies provide the rights to the users to request the erasure of their data.

Data update

To change the details of the users which were earlier provided.

Objections

Data subjects can object to the usage of their data.

Location

Data subjects can ask for the location of their data, its storage, and transfers.

Restriction on use

Data subjects can deny using their data for marketing purposes.

Which business needs to comply with the GDPR

All the businesses need to comply with GDPR that has established or operates in the European Union. It is irrelevant where the data processing takes place in the world, if you are a non-EU business and offer the services to customers based in the EU, then you have to ensure compliance with the GDPR. If you are aiming to sell the products to the EU residents; they are your prospective buyers, you will be liable to comply with the GDPR norms.

GDPR compliant privacy policy

Who your data controller is and contact information of the data controller

The Data Controller is the one who controls the personal information of its customers. The data controller informs the customer about their data and its processing, who the company is, how it uses or controls users’ data, how it stores users’ data, etc. Contact details of the data controller are also provided to the users to approach them in case of any concern related to their data.

Who is your DPO

In case the company has a DPO, the same has to be mentioned in the privacy policy, as well as the contact information of the DPO has to be mentioned.

Whether you use data to make automated decisions

The data controller must disclose to its users if their data is used for automated decision making such as credit scoring or profiling.

Inform users of the 8 rights they have under GDPR

GDPR provides 8 rights to data subjects and the data subjects need to be informed of those rights along with an adequate procedure to avail those rights. 8 rights available to data subjects include:

The right to be informed;
The right to access;
The right to rectification;
The right to erasure;
The right to restrict processing;
The right to data portability;
The right to object;
Rights related to automated decision making and profiling

Any transfer made by the controller has to be mentioned in the privacy policy of the company to make the users aware of the location and processing of their data and make an informative decision.

What’s your legal basis for the processing of data

Article 6 of the GDPR provides 6 legal bases for processing the personal data of its customers. An organisation needs to have a valid legal basis to process the data. Legal bases include consent, the performance of a contract, a legitimate interest, a vital interest, a legal requirement, and a public interest.

How to get consent

If consent is used as a legal basis to collect information, then consent should be acquired explicitly from the users. The Data controller should use checkboxes and click wraps to acquire consent to help customers make an informative decision. If the data is sensitive, consent should be obtained clearly.

Impact of non-compliance of GDPR on business privacy policies

A company has to abide by norms provided under the GDPR to avoid an extensive penalty of 20 million Euros or 4% of the global turnover of the companies, whichever is greater. It includes appointing a dedicated Data Privacy Officer who will be responsible for following all the compliance norms.

Changes in the Business privacy policies

Prominently displayed and easy to access.
Keep it updated and always inform users when you make privacy policy changes.
Language should be concise, easy to understand and clear.
The details about who you are and the other details help the data subject to make an informative decision whether or not they are willing to share their data.
Inform users of your contact details and the physical location of your business.
Businesses should also keep in mind several questions while writing a privacy policy.

What personal information will you be collecting?
Who will be collecting this information?
Where will you store this personal information?
Whose information are you collecting?
Why is the information being collected?
Whom are you sharing this information with?
How can users access their [personal data?
How can users easily limit or opt out of handing over this information?
How do you inform the users if there is any data breach?

Suggestions to create an effective privacy policy for businesses as per the norms of GDPR

Simplify texts

Simplify phrasing, with simpler sentences and content up to the mark. One of the best practices includes rephrasing the section headings as questions.

Example- Do you provide my information to a third party?

Structuring content with intuitive navigation, user experience is important

Privacy-related information should be visible. For example- a new/separate page, a distinct tab, altogether a new policy.
Contents should be categorised into sections, in the links form (when you tab the link, it provides relevant information to that point)
Whenever possible, provide sub-sections to the sections to provide a better understanding.
Provide intra-or-inter document links while referring to any point mentioned in the privacy policy document or otherwise.
User input fields (for consent) should be empty (no pre-checked box should be available while taking explicit consent from the user)
All the options like opt-in, opt-out, etc should be available for the users so that they make an informative decision while clicking a box. Considering implied consent while using a website is not a fair way to opt consent from the users. Such practices should be avoided.
Provide a tab option to revisit the above options without any disturbances.

Designing for ease (Macro)

Provide a brief interpretation of the sections in very plain language, it is like aid to interpretation of the section. To provide a better user experience, non-textual design elements should be used, such as icons, distinct colours for heads and subheads, better alignments, etc.

Designing for ease (Micro)

Readable font type, adequate line spacing, and paragraph spacing, distinct font size for heads and subheads, distinct colours for heads and subheads, usage of typographic treatment consistency- similar texts should appear similar throughout the document.

Creating Emphasis (for disclaimers, onerous clauses, etc.)

For disclaimers, provide headings such as “note”, “disclaimer”, etc., use proper capitalisation, may use markers, may write in italic, bold, or underlined, etc.

Providing language support

Language should be in readable form and options must be provided to convert the document in the language of the regions where the services are provided.

Providing for offline use

Supply an offline version of the document even if the same is available online.

Presenting in other forms

Presenting a privacy policy in any form is good, better is, presenting the same in various forms like audio, video or writing form. It will aid user engagement and comprehension.

Conclusion

GDPR has mainly benefitted Data Subjects and provided them various rights to control their personal data. Other countries are also expected to follow the footsteps of the EU by enacting legislation concerning data protection and privacy laws. Privacy of the users is a major concern and in no time other countries would have similar safeguards to secure the data of the users. Data protection officers and other legal experts are also going to fetch more opportunities and resultantly, more money with the rise of data security and new legislations in this regard. Privacy policy plays an integral part in GDPR compliance. Nevertheless, technologies are developing at full pace and to cope up with it, companies have to keep a constant check and update their privacy policy from time to time. Employees and staff play an essential role in the company and must be addressed with the responsibilities they have on their shoulders when they deal with the personal data of the customers.

References

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

Process of negotiating a non-compete clause in a shareholder’s agreement

By

Rachit Garg

-

October 14, 2021

0

This article has been written by Simranjeet Kaur, pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. It has been edited by Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

A shareholder agreement is an arrangement that defines the relationship between shareholders and the company. The agreement safeguards the rights and obligations of the majority and minority shareholders, and it ensures all shareholders are treated fairly.The shareholders of a company will have detailed knowledge of the company’s intellectual property and trade secrets, business plans as well as relationships with key stakeholders and access to customer lists as well.

Therefore, it is crucial to protect the inside information of the company and here comes the importance of non-compete clauses in the shareholder’s agreement. These non-compete clauses protect the company from any form of competing business to use their information and compete against them.

Non-compete clauses

Non-compete clauses protect while exchanging any confidential information. A company must ensure that their information is not being used to set up a rival company by any such person with whom the information is shared or for the purpose of sharing such information to a competitor, etc. Therefore, non-compete clauses hold utmost importance in business agreements.

A non-compete clause restricts the shareholder to a business agreement from carrying on the same business in future after exiting from the target company, for some time. In a shareholder’ agreement, non-compete clauses put a restrictive covenant to protect the company by limiting any future competitive business activities by the shareholder after his exit from the company, for a given period.

If there is no non-compete clause in an agreement, then the shareholder would be free to take an exit from the company and just share the information with any rival business or set up his own new company.

The sample of a non-compete clause in a shareholder’s agreement is given below:

Non-Compete: “During the Term of this Agreement, and for a period of 2 years after termination or expiration, the Shareholder agrees that he shall not,

start any new business which is similar or identical to the business model, product or services provided by the Company;
directly, or indirectly, engage as a Shareholder, employee, sole proprietor, member of partnership, investor, consultant, director, or officer of a company, or as an associate, or be an agent of any person, business organization or entity which is a competitor (or any person or entity that is reasonably anticipated to the general knowledge of the Shareholder or the public to become a competitor) of the Company”.

Non-solicit clause

It can happen that after exiting the company, the shareholder may not set up a new company, but he may solicit the clients, employees, etc of the company for his or her own direct or indirect gain. Therefore, a non-solicit clause provides a safety net for any company, thereby, restricting the shareholder to set up a business with the company’s rivals or engaging with the clients, employees, etc of the company after his or her exit.

A non-solicit clause is a restrictive covenant in a shareholder’s agreement that limits the ability of the shareholder to communicate and conduct business with the clients, employees, or suppliers of the target company for a specific period, after his exit from the company.

The following is a sample non-solicit clause in a shareholder’s agreement:

Non-Solicitation: “During the Term of this Agreement, and for 2 years after termination or expiration, the Shareholder shall not, directly or indirectly, and without the prior written consent of the Company,

solicit or attempt to solicit, induce or attempt to induce, any person who is at the time of such solicitation or attempted solicitation (a) an employee, supplier of the Company to terminate their employment, supply, with the Company or any (b) prospective employee with whom the Company has had discussions or negotiations within six months prior to the termination of the Shareholder’s agreement, not to establish a relationship with the Company;
induce or attempt to induce any current customer to terminate its relationship with the Company;
induce any prospective customer with whom the Company has had discussions or negotiations within six months prior to the termination of the Shareholder’s agreement, not to establish a relationship with the Company”.

Negotiating a non-compete clause in a shareholder’ agreement

A majority of the shareholders who are looking to expand their business by bringing in new partners will want to incorporate a non-compete clause to protect the value they have built in the business and its long-term prospects. Similarly, anyone who is buying shares out of the majority shareholders will want to ensure that the former owner cannot set up a rival company, after exiting from their business.

While drafting a non-compete clause in the shareholders’ agreement, it is crucial to specify and narrow the commercial activity that is considered to be competitive according to the company. Setting up a new company and offering the identical goods or services would be competing in nature. But substitute goods or services may be less clear unless expressly and unambiguously defined in the agreement.

The following factors must be taken into account while negotiating for a non-compete:

Duration of a Non-Compete Clause: The non-compete clause prohibits or restricts the shareholder from engaging in any competing business for a specific period. Such a time must be favourable and not unreasonable. For example, a non-compete that restricts the shareholder from engaging in any competing business around the world for a period or 20 years is very unreasonable. But, a restriction of not competing anywhere around the world for 6 months or 2 years is favourable enough.
Geographical Location: It refers to the area in which any competing business activity is restricted by the Company. The geographical limit should not be unreasonable and arbitrary. The non-compete must mention all such locations wherein, the company has its outreach, along with a reasonable period.
Compensation: In case of breach of the non-compete, the shareholder must pre-determine the suitable amount of compensation to safeguard himself from any litigation in the future.
non-solicit clause: By inserting a non-solicit clause for a reasonable period would help in limiting the shareholder’s ability to solicit the customers, employees, suppliers, etc of the company.
Non-ambiguous terms: The non-compete must be drafted in a way that no ambiguity or confusion should be there. The terms mentioned should be clear and crisp.

Enforceability of non-compete clauses

In India, Section 27 of the Indian Contract Act, 1872, provides a restraint on any business that puts a restriction on trade. This way, it appears that all non-compete clauses are invalid in India. However, the Hon’ble Supreme Court of India has explained that some non-compete clauses are in the interest of trade and commerce and therefore, they cannot be treated as invalid.

In the U.S.A, non-compete clauses are valid but in some of its states, such non-compete clauses or agreements are invalid.

In the U.K, such clauses are called restraint of trade and may be used by the employer, if only he can prove a legitimate business interest to protect in entering the clause into the contract and mere competition will not amount to a legitimate business interest.

In the case of Maseco S.A. vs. Herbert [2018] EWHC 3326 (Comm), the respondent challenged the application on the basis that the non-compete restriction was too broad and therefore, unreasonable and the settlement agreement waived the non-compete restrictions in the shareholder; agreement. He said that the terms of the Settlement Agreement, stated that the agreement was “intended to settle outstanding differences” between the employee and any company; and also stated that the parties “declare[d] expressly that none of them will have any obligations regarding the other Party”. He contended that this waived the non-compete and that Ideal Standard had signed the Settlement Agreement for, and on behalf of, all group companies. However, the court thought that there was no reference to the settlement agreement to the shareholder’ agreement and also the shareholder agreement clearly stated that any waiver must be in writing and duly signed by the person who is granting it. Hence, the court granted an interim injunction as prayed in the application.

In Guest Services Worldwide vs. Shelmerdine [2020] EWCA Civ 85, the appellate court upheld the decision of the lower court for the 12-month post-departure restraint and rejected the arguments stating that the outgoing personnel risked being locked in for an indefinite period, if unable to sell their shares.

Conclusion

It can be concluded that the non-compete covenants must be drafted very carefully in any agreement. However, it is also important that the terms of the non-compete must be fair and just. The terms must be mentioned clearly and unambiguously in order to avoid any loopholes in case of any future litigation. In drafting a strong non-compete in a shareholder’ agreement, one must clearly articulate the nature of the company’s business to clarify what is considered to be competing by them. The drafting of a non-compete clause can be a tricky part of a shareholder’ agreement.

References

http://www.kellysantini.com/articles/shareholder-agreement-essentials-non-compete-clauses
https://www.owenhodge.com.au/business-support/shareholders-agreement/
https://www.lexology.com/library/detail.aspx?g=00d84d41-dd22-4063-9f0f-3f22a9953a5a

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

Prevention of the Money Laundering Act, 2002 and its constitutional validity

By

Rachit Garg

-

October 14, 2021

0

Investigation Process in Money Laundering Matters

This article is written by Pranjali Aggarwal of the University Institute of Legal Studies, Panjab University, Chandigarh. This article deals with the Prevention of Money Laundering Act (PMLA), 2002, and its constitutional validity.

Introduction

Money Laundering refers to the process in which the money arising from criminal proceedings or activities is projected as money from legitimate sources. It is basically a procedure that conceals the origin of dirty funds from illicit sources such as drug trafficking, illegal arms supply, etc., and helps people enjoy these gains by laundering it to make it look clean so that it can be disguised as legal money. According to the United Nations Office on Drugs and Crime (UNODC) the estimated sum of money that is laundered every year globally, amounts to 2-5% of global GDP that is approximately $800 billion- $2 trillion in the current US dollars. So, the Prevention of Money Laundering Act, 2002 (PMLA) was enacted to curb and control this practice of money laundering in India.

Money Laundering in India

In India, money laundering is also referred to as Hawala transactions which gained popularity during the early ’90s. Hawala is an Arabic term that refers to the transfer of money or information between two individuals with the help of a third person. Hawala is an alternative or parallel remittance system used to facilitate the conversion of black money into white money. According to Section 3 of the PMLA,2002, money laundering is the processing of criminal proceeds (illicit profits generated from criminal acts) so that their illegal origin can be cloaked.

The Prevention of Money Laundering Act, 2002

The Prevention of Money Laundering Act,2002 came into force with effect from 1st July 2005 and as stated in Preamble of the Act, its main object was to prevent money-laundering and to provide for confiscation of property derived from or involved in, money laundering and to punish those who are engaged in the commission of the offence of money-laundering. Before the introduction of PMLA, 2002 in the Indian legal regime, several enactments were used to address the menace of money laundering in India like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (COFEPOSA), the Benami Transactions (Prohibition) Act,1988, the Indian Penal Code,1860 (IPC) and Code of Criminal Procedure,1973 (CrPC), the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985, the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and also included demonetization of currency.

But these statutes were not specifically curated to deal with the issue of money laundering so they were inept to address the global concerns of mounting cases of money laundering. The Government of India proposed the Prevention of Money Laundering Bill 1998 in Parliament on 4th August 1998 and the Bill received assent from the President on 17th January 2003 and hence, the specific statute to deal and tackle the cases of money laundering i.e PMLA, 2002 was introduced. The Act has undergone five amendment procedures. since its enactment and the latest one being in the year 2019.

Constitutionality of PMLA challenged in various case laws

Since the inception of the Act, the provisions have been categorized as complex as well as contentious. They have been in the limelight for their conflicting interests with different Acts and the constitutionality of various provisions of PMLA,2002 has been challenged in the courts time and again in various case laws.

The constitutionality of some provisions is discussed below:

Section 45(1)

Section 45(1) of the PMLA, 2002 dealt with the conditions of bail. This draconian provision was held to be unconstitutional and as it was in contravention with Article 14 and Article 21 of the Constitution of India in the landmark judgement of Nikesh Tarachand Shah v. Union of India (2017).

Facts of the case

The constitutional validity of Section 45(1) was challenged in this case as there were twin conditions in Section 45(1) that were to be fulfilled in addition to the provisions of CrPC,1973 in order to get the bail in cases related to an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule to the Act that is:-

The public prosecutor must be allowed to oppose any application for release on bail; and
Where the public prosecutor opposes the application, then the court must be assured and satisfied that there accused reasonable grounds that negate the guilt of the accused and that he is not likely to commit any offence while on bail.

Contentions of the Petitioner

The provisions were considered arbitrary and thus violative of Article 14 and Article 21 because of the following reasons:-

In the Prevention of Money Laundering Bill,1998 when it was put forward before the Parliament, clauses 43 and 44 of the Bill on which Sections Section 44 and 45 of Act are based, dealt only with the offences that were elucidated under the Act itself. In the Act, the proposed provision in the Bill was completely altered and instead of only offences of the Act it was applied to Part A of the Schedule under the Act
When the Act was enforced, Part A of the Schedule encompassed only two offences of the IPC and nine offences of Narcotics Drugs and Psychotropic Substances Act,1985. But the Amendment of 2012, widened the applicability of Section 45 (1) to various offences as all the offences mentioned under Part B of the Schedule were transferred to Schedule A.
The amendment made this Act applicable to a myriad of offences which renders Section 45 (1) to be arbitrary and unreasonable as the prosecution of the accused is related to the offences committed under this Act but his bail application would be denied because of the charge of having committed a scheduled offence (as given under Part A) which include other offences also that are not covered under this Act.
The Act was formulated to deal with the offence of money laundering and as Section 45(1) is being applied to punish offences of other Acts, it does not comply with the nexus of the Act that was to penalise money laundering.
The offences that are added in Part A of the Schedule are decided on the basis of a sentence of imprisonment of more than three years but this classification does not have any reasonable nexus to the object sought to be achieved by the Act.
Even the principle that the accused is innocent until proven guilty is violated and it is not justified according to the Act also as no doubt Section 24 of the Act shifts the onus of proof on the accused in the offences as enumerated under Act but this Section does not apply to Section 45(1) because it deals with scheduled offences only.

Held

So this section was held to be unconstitutional and was struck down as being violative of Articles 14 and 21 as the principle guiding the criminal justice system is ‘Bail, not jail ’based on Article 21 of the Constitution. The matters in which the application of bail was pending because of the non-fulfilment. of the conditions of Section 45(1) of the Act were to be reconsidered and decided accordingly.

Aftermath of the Nikesh Tarachand Shah case

Section 45(1) of the Act was struck down in this judgement, so it was later on amended by the 2018 Amendment brought through the Finance Amendment Act 2018. But the amendment can be said to be an old wine in a new bottle. The phrase “punishable for a term of imprisonment of more than three years under Part A of the Schedule” in the section was substituted with “under this Act”. This was done in order to make the prerequisites for bail mentioned under this section apply to all the offences under this Act and not restrict only to Section 45(1).

This amendment has also been challenged and there are conflicting views presented by different High Courts. In the case of M Sivasankar v. Union of India(2021), the Kerala High Court stated that the bail conditions will be applicable after the amendment of 2018 and the judgment of Nikesh Tarachand Shah will not alter the applicability of the subsequent amendment. Contrarily, the High Courts of Bombay (Sameer Bhujbal v. Directorate of Enforcement, (2013), Madhya Pradesh ( Vinod Bhandari v. Directorate of Enforcement, (2018), and Manipur (Okram Ibobi Singh v. Directorate of Enforcement, (2020) are of the opinion that as Section 45(1) of the Act has already been struck down in the Nikesh Tarachand Shah case, so the 2018 Amendment does not resurrect the bail pre-conditions.

This question is still to be finally decided by the court. The crucial reason for striking down the section was to shift the burden to negate his guilt on the accused and the amendment only made changes regarding the applicability of Section and not regarding this presumption. So, this matter needs to be decided by the Court.

In August 2016, the former Maharashtra Deputy Chief Minister Chhagan Bhujbal has also filed a writ petition in the High Court challenging the constitutional validity of certain provisions of PMLA,2002 and specifically challenged two Sections- Section 19 and Section 45 and after this judgment, he was granted bail by fulfilling the other requisites as decided by the court.

Section 2, 8, 23 of the Act

In the case of B Rama Raju v. Union of India and Ors (2019). the constitutional validity of Sections 2(1)(u), 8 and 23 were challenged.

Contentions put forward by the Plaintiff

The contentions were made on the points that:

The property that is under the control of a person other than the person charged under the Act can also be confiscated and attached to the case.
The court can even attach the property that was made before the enactment of the Act if found to be acquired from illicit means.
The presumption under Section 23 is against the presumption of innocence in the favour of the accused

Held

The Court decided upon this matter after considering these provisions and the object of the Act. As the Parliament has the power to retrospectively apply any Act and the presumption under Section 23 is a rebuttable presumption and the accused has a chance to disprove his guilt. So the Court stated that these provisions do not infringe any fundamental rights enshrined in the Constitution and upheld the validity of these provisions.

Section 5(1)

Several writ petitions have been filed under Article 226 of the Constitution of India to declare the second proviso to Section 5(1) of PMLA,2002 as ultra vires, unconstitutional as it is violative of Article 14,19(1)(g), 21, 300A of the Constitution. Section 5(1) deals with the attachment of the property in money-laundering and its second provision confers the power over the Enforcement Directorate to provisionally attach the properties allegedly bought from proceeds of the crime.

The Court in the case of J Sekar v. Union of India (2017) held that this proviso is not against Article 14 as it does not confer excessive or disproportionate powers that will be rendered arbitrary and the court relied on the landmark judgement of Shayara Bano v. UOI (2017). And relied on Union of India v. Dilip Kumar (2015) that ‘proviso should not be beyond the extent of the provision to which it is proviso’ and stated that in order to make the provisional attachment, firstly there should be the satisfaction that these ‘proceeds of crime’ can be concealed or transferred and thus it will hamper the confiscation process of the property. This provides the safeguard for the proviso 2 of Section 5(1).
The validity of this proviso with reference to Article 19(1)(g) was decided in the judgement of FFR Software Pvt. Ltd v. Union of India (2012) and it was decided that it does not violate any provisions of Article 19(1)(g)
In Smt. K. Sowbaghya v. Union of India (2016) it was held that as the confiscation of property as per this proviso is only for the limited time period and the order of attachment is to be submitted to Adjudicating Authority immediately and the validity of the provisional attachment is to be confirmed by the Authority. So the proviso is not violative of Article 14, Article 21 and 300-A as reasonable safeguards are provided so that no arbitrariness can be witnessed.

So through these series of judgements over the years, it can be stated that the second proviso to Section 5 (1) does not infringe the rights as articulated under Article 14, Article19 (1)(g), Article 21 and Article 300-A of the Constitution of India.

Section 17,18

After the Amendment of 2019, the provisions of Section 17(1) and 18(1) have been deleted, as a result, the scope of powers of the officers of the Enforcement Directorate (ED) widened. Now ED can initiate search procedures against the accused or search premises without any report being forwarded to the magistrate under Section 157 of CrPC,1973. This power will surely increase the sufferance of the accused at the whims of the officer. The constitutional validity of these provisions is to be decided by the court.

Sections 19(1) and 24 of the Act

Section 19 of the Act deals with the powers of arrest and Section 24 of the Act deals with the burden of proof. These provisions were challenged in the case of Rajbhushan Omprakash Dixit v. Union Of India & Anr (2018)

Facts of the case

The investigating agency had booked Sterling Biotech’s directors Chetan Jayantilal Sandesara, Dipti Chetan Sandesara, Rajbhushan Omprakash Dixit, Nitin Jayantilal Sandesara and Vilas Joshi, and Chartered Accountant Hemant Hathi, former director of Andhra Bank Anup Garg and other unidentified people in connection with the money laundering case and attached assets worth Rs 4701 in this case.
Rajbhushan Dixit was sent to the custody of ED for 11 days.
He filed the writ petition of Habeas Corpus and questioned the validity of Sections 17, 18, 19 and 24 of the Act.

Contentions put forward by the Plaintiff

It was pleaded that the procedure prescribed under Chapter XII of CrPC was not adhered to despite the order of the Supreme Court in the case of Ashok Munilal Jain v. Assistant Director, Directorate of Enforcement (2017). Thus, his arrest is against Articles 14, 21 and 22 of the Constitution and is also against the guidelines laid down in the landmark judgment of DK Basu v. the State of West Bengal (1997).
Thus, challenging the constitutional validity of powers of arrest under Section 19 which are arbitrary of the guidelines of DK Basu.
Section 24 was questioned for shifting the burden of proof on the accused to disprove his guilt which is contrary to the cardinal principle that ‘accused is always considered innocent”.

Held

The Court relied on the judgement of Moin Akhtar Qureshi v. the Union of India (2017) and said that the provision of Section 19(1) does not comply with the principles of the Constitution and thus are to be reconsidered by a larger bench.

Section 44 (1) (a) and Section 44 (1)(b)

A Petition has been filed challenging Section 44(1)(a) and 44(1)(b) on the grounds that

Section 44(1)(a) deprives the accused of rights enunciated under CrPC,1973 like the right to be tried by the magistrate of first-class, right of the first appeal as per Section 374(3) of CrPC, Right of Revision to the High Court (as per section 401 CrPC). Thus, it is pleaded to be against Article 21 of the Constitution.
Section 44(1)(b) is considered to be against Articles 14 and 21 of the Constitution as the petitioner contends that the grounds on which the authority can transfer the case to the Special Court are not explicitly mentioned, thus conferring wide and unfettered powers.

The Divisional Bench comprising Justice S. Abdul Nazeer and Justice Aniruddha Bose has listed the matter for further hearing.

Pleas yet to be decided by the Court on the constitutionality of PMLA, 2002

Former Union Minister P Chidambaram’s son and Congress MP Karti Chidambaram has challenged the constitutional validity of the PMLA as amended in 2019 and sought to declare it to be void, ultra vires, and unconstitutional. He stated that the procedure prescribed under PMLA is arbitrary, unreasonable and thus violative of Articles 14,19, 20 and 21 of the Constitution of India. The contentions to prove this Act unconstitutional revolves around excessive and arbitrary power exercised by ED in respect of deciding whether the offence is a predicate offence or not, the procedure followed for attachment, adjudication and possession of properties by the ED which according to the petition can be done on the belief of ED even though the investigation is still not concluded regarding predicate offence. Also, Section 3 of the Act was challenged to be against Article 20(2) because it is being contended by the petitioner in the INX Media case that he is being punished for the offence which does not exist as an offence when he committed it.
The former Chief Minister of Jammu and Kashmir and People’s Democratic Chief Mehbooba Mufti has challenged the constitutional validity of Section 50 of the PMLA, 2002 as it violates the provisions of Article 20(3) of the Constitution and sought to declare it as void and inoperative. Section 50 confers powers to the authorities i.e. ED regarding summons, to produce documents or to give evidence. And the persons summoned by the ED are bound to answer all the questions posed and even produce all the documents that are being asked for thus it is being challenged in the plea to contravene the privilege of self-incrimination given by the Constitution.
The Supreme Court in the recent case of Vijay Madanlal Choudhary & Ors. versus Union of India & Ors (2021), after allowing the stay order on arrest in the cases under PMLA, 2002, has decided to take up all the matters challenging the constitutional validity and other discrepancies regarding the Act, which are pending before the court. The Solicitor General Tushar Mehta has prepared the list of the questions of law to be deliberated upon concerning PMLA. The questions to be decided regarding the constitutional validity of the Act are as follows:-
1. Whether Section 45(1) after the Amendment of 2018 is unconstitutional?
2. Whether the judgment given in the Nikesh Tarachand case has been overruled by the amendment i.e. whether amendment (2018) revives the existence of dual conditions in order to secure bail.
3. In case it is decided that the twin conditions are resurrected, whether the non-application of twin conditions to anticipatory bail as held in the judgment of 2018 is correct?
4. Whether shifting the onus of proof on the defendant vitiates one’s fundamental rights?
5. Whether the reliance on the statement given during investigation to officers of the Enforcement Directorate amounts to self-incrimination and thus infringes Article 20(3) of the Constitution.
6. Whether attachment of property as per provisions of PMLA is violative of Article 300A(Right to Property)
7. Whether Sections 17 and 18 after the Amendment are considered unconstitutional?
8. Whether Section 19 of PMLA enumerating the powers of arrest is against Articles 14 and 21 of the Constitution?
9. Whether on the ground that the constitutional validity of some provisions has been challenged in the court, can the court provide the benefit of no coercive order to the accused without considering the merits of the case?

Conclusion

There are batches of pleas that are pending in the court challenging the constitutional validity of the Prevention of Money Laundering Act (PMLA),2002. Since the inception of the Act there exist several lacunas and inconsistencies in the provisions of the Act because of which it has always been in the limelight. No doubt amendments have been made to tighten the loopholes that existed but they were not able to fulfil the purpose for which they were incorporated and instead raised several questions.

In my opinion, the Act in some cases take stringent actions and provides enormous powers to the Authorities under the Act so that the issue of black money in the country can be combated but natural justice should be kept in mind and the provisions should be made in the interest of the public at large and not to exploit them. Moreover, this Act is fairly new and still, a lot of interpretations have to be done by the court over time. And the Court’s decision to take up the matter and decide all the existing controversies is surely awaited which will provide a clear picture of the provisions. The Court will act judiciously, keeping all the principles of natural justice and the principles enunciated in the Constitution and thus will interpret the Act in a way so that there is no arbitrary exercise of the power and the Act remains constitutionally compatible.

References

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

Digital regulation and compliance development in Europe

By

Sneha Mahawar

-

October 14, 2021

0

digital regulation — Image source - https://bit.ly/2PzK8YQ

This article has been written by Aditi Sahu pursuing a Diploma in Business Laws for In-House Counsels. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

For many years, Europe has placed a high priority on the regulation of digital markets. The European Commission committed the EU to establish a digital single market in 2015, which generated several of the initiatives and regulatory changes affecting both providers and users of digital goods and services. Even within the EU, the standard of digital regulation has varied – and continues to vary – with many issues left to local implementation. In 2016, the United Kingdom voted to leave the European Union (with Brexit taking effect in 2020), resulting in further digital regulatory divergence across Europe.

As European digital regulation continues to evolve, the process of Digital Compliance has become a much higher priority for any organization providing or consuming digital goods and services in Europe. Organizations are finding it increasingly difficult to maintain regulatory compliance as digital technology evolves.

European Union: Digital regulation and Compliance development

Morrison & Foerster’s European Digital Regulatory Compliance team reports on some of the most important topical developments in European digital compliance that occurred in the second quarter of 2021 to help organizations stay on top of the main developments in this area. These Digital regulation and Compliance development are:

Preparing Europe for the Digital Age: Amendments to the Proposed Digital Services Act

The dynamic duo is on its way! The European Commission published two major proposed pieces of legislation in December 2020 to implement the EU’s digital strategy. The Digital Services Act (DSA) and Digital Markets Act (DMA) are intended to work together to create a safer digital space and a level playing field to foster innovation and growth both in the EU and globally.

As one-half of this legislative package, the DSA will focus on the regulation of digital service providers, also known as “intermediaries.” It aims to address the dominance of “very large” platforms (those reaching more than 10% of Europe’s 450 million consumers) as well as corporate accountability for third-party content. Breach of the DSA may result in one-time fines of up to 6% of annual global turnover or periodic penalty payments of up to 5% of average daily turnover.

Once enacted, the DSA and Digital Markets Act will be directly applicable throughout the EU and will not require national implementation by each Member State.

Both the DSA and the Digital Markets Act have a long road ahead of them, as they must be debated and agreed upon before they can be implemented. The EU institutions will now debate and (hopefully) agree on both pieces of legislation. During those debates, additional comments and/or updates may be made. And, of course, there will be strong opinions and lobbying from digital service providers to try to relax both the requirements on digital intermediaries and the size of the potential financial penalties.

Preparing Europe for the Digital Age: Amendments to the Proposed Digital Market Act

The Digital Markets Act is the second half of the EU’s legislative duo described above (DMA). The DMA will focus on “gatekeepers,” or core platforms that serve as a link between business users and customers. The proposed regulations express concern about such platforms’ “entrenched and durable” positions, which the EU believes leads to unfair practices and a lack of competition, resulting in higher prices, lower quality, and less innovation in the digital economy. Only a cynic would see a link between the EU’s concern and the fact that these platforms are almost entirely based outside of the EU.

If a core platform provider meets the following criteria, it will be considered a gatekeeper:

has a significant impact on the EU internal market (currently, an annual EEA turnover of over €6.5 billion for three years or a fair market value of the undertaking or its parent of €65 billion);
operates one or more important customer gateways (currently, having over 45 million EU end-users and over 10,000 yearly active business users); and
enjoys or is expected to enjoy an entrenched and long-term relationship with customers (currently, having over 45 million EU end-users and over 10,000 yearly active business users);

While the draft DMA establishes certain parameters for determining whether or not a provider is a gatekeeper, it also permits the European Commission to designate gatekeeper status based on other factors.

Gatekeepers will do things like:

must follow new data-sharing rules;
must allow their software and apps to be removed from hardware;
must allow business users to conclude contracts with end-users outside of the gatekeeper’s platform; and
must refrain from favouring their products over those of other business users.

The DMA comes at a time when several EU Member States are debating or have already adopted new regulatory instruments aimed at regulating gatekeepers or “large digital companies” more broadly to keep relevant markets open and competitive (e.g., the German UPSCAM regulation that entered into force in January 2021). Given that the DMA claims to be the EU’s primary tool for enforcing such regulations, it’ll be interesting to see how its relationship with these national regimes develops.

The DSA, on the other hand, will now need to be debated and agreed upon among EU institutions before being accepted, and if adopted, it will have an immediate impact throughout the EU.

The United Kingdom’s New Digital Task Force is focusing on Big Tech

The UK will not use the DSA or DMA after Brexit. However, the UK is looking to change the way it regulates digital markets, which most likely means attempting to achieve the same goal as the EU in terms of regulating “big tech” companies. Several key UK regulatory agencies (the Competition and Markets Authority (CMA), the Information Commissioner’s Office, the Financial Conduct Authority, and Ofcom) have joined forces to advise on the UK’s digital market regulation strategy. They form the UK’s Digital Task Force, which has released its first document of advice.

A legally binding code of conduct (with different rules for different types of companies), pro-competitive interventions (including remedies such as personal data mobility and interoperability), and enhanced merger rules are all part of the Digital Task Force’s proposed regulatory regime, which will be overseen by a new Digital Markets Unit (DMU) within the CMA. The DMU was founded by the UK government in April 2021, and it has promised to consult on a pro-competitive regime later that year, intending to be able to regulate the world’s largest digital tech companies by 2022.

The Digital Task Force’s regime is aimed at digital businesses having a “strategic market status” (SMS), which is defined based on evidence. This aligns with the EU’s (as previously explained) objective of targeting corporations with a stronghold on the market. However, unlike the EU, the UK Digital Task Force proposes that such an SMS evaluation be applied to a corporation’s specific activity rather than the entire company.

While the Digital Task Force envisions a proactive regime and open and constructive cooperation with SMS companies, its suggested penalties go further than the EU’s. The task committee advises that the UK use fines of up to 10% of global turnover to deter violations of the system. It’ll be interesting to see how big IT companies respond to this “operate with us or against us” mentality.

The DMU’s formal establishment in April 2021, as well as the UK government’s planned consultation on its pro-competitive policy, will be the primary events to watch in the coming months. When parliamentary time allows, the UK government has also committed to passing legislation enshrining the DMU in law.

AI, robots, and machine learning—as well as liability issues—will be addressed in upcoming EU law

The European Commission has been working on two imminent, eye-catching legislative drafts in the context of new technologies such as artificial intelligence, machine learning, and autonomous robots over the past few months.

First, the Commission has released its legislative proposal for a regulatory framework for artificial intelligence. The proposal entails a set of mandatory regulatory requirements, at least for certain high-risk types of AI, and GDPR-style fines based on a percentage of turnover for non-compliance, based on the Commission’s preparatory work, most notably its White Paper on AI released in February 2020 and its Inception Impact Assessment released in July 2020. The Commission said that it would work to address three major areas of concern identified by the Commission:

the impact of AI-based decision-making on fundamental rights (e.g., in the case of biassed or discriminatory AI decisions);
the safety risks arising from AI applications that are currently not captured by the EU product safety framework (e.g., due to the dynamic nature of AI); and
a solution for assigning liability in the event of damages caused by AI.

Second, the Commission published its proposal to revise the EU Machinery Directive alongside the AI proposal. The Machinery Directive governs the essential health and safety requirements that machinery must meet before it can be placed on the EU single market, as well as the procedures for mitigating associated risks. The Commission’s proposal includes several amendments aimed at more explicitly recognizing that machinery is increasingly implementing emerging technologies such as AI, machine learning, or autonomous mobility and that these technologies introduce new health and safety risks for people and property exposed to such machinery.

Both drafts were published by the Commission on April 21, 2021, putting these initiatives into ordinary legislative proceedings at the EU level, where they could be finalized in early 2022. Companies that expect to be impacted by the new rules should review the published draughts and look for opportunities to discuss their concerns with relevant stakeholders.

Geo-blocking remains an important area of research and enforcement in the EU

The EU Commission fined Valve, the owner of the online PC gaming platform “Steam,” and five other PC video game publishers a total of € 7.8 million in February 2021 for violating EU antitrust rules through geo-blocking practices (see 20 January 2021 press release). The valve was fined more than €1.6 million on its own.

The Commission discovered that Valve and PC video game publishers restricted cross-border sales of certain PC video games based on users’ geographic location within the European Economic Area (EEA). They allegedly prevented customers from activating and playing PC video games purchased in one EU country in another, limiting cross-border sales. This enforcement action demonstrates that compliance with geo-blocking rules is critical, and it is one of the issues that regulators will always be interested in (particularly the EU Commission).

Online intermediary legislation in the EU is starting to take shape

The EU has started to submit several particular legislative proposals to regulate online intermediaries, in addition to the planned Digital Services Act package (see above). Since July 2020, the EU’s Regulation on Promoting Fairness and Transparency for Business Users of Online Intermediation Services (the Platform to Business Regulation or P2BR) has been in effect (dubbed the “first-ever rules” by the EU). Despite Brexit, the Online Intermediation Services for Business Users (Amendment) (EU Exit) Regulations 2020 under the EU Withdrawal Act 2018 kept these restrictions in place in the UK.

The P2BR applies to online intermediaries (i.e., online marketplaces that allow businesses to offer and sell items to consumers) and search engines, and places a strong focus on transparency, including requiring service providers to reveal how they rank goods and services on their site.

The EU Commission has recently published Guidelines under the P2BR on this so-called “ranking transparency.” The P2BR not only promotes transparency and predictability, but it also prohibits certain “unfair” practices, such as suspending or terminating a user’s account without providing a statement of reasons (and a right of appeal) and amending terms and conditions without providing at least 15 days’ notice. Internal complaint handling procedures will also be required for online platforms.

The UK is reforming its digital consumer laws

The UK government produced a report by John Penrose MP in February 2021 on how the UK’s post-Brexit competition and consumer law environment should evolve. In the long run, the Penrose Report recommends for the UK Competition and Markets Authority (CMA) to be able to decide consumer violation matters and impose fines in the same way that it does for competition law cases without having to go to court. This is expected to give consumer law enforcement a higher priority than it already has.

The Penrose Report also backs the UK government’s plan to create a new digital markets’ unit (DMU) inside the Competition and Markets Authority (CMA) to regulate digital enterprises with significant, entrenched market power. The DMU, however, should focus on specific companies that hold and operate new network and data monopolies, rather than the digital sector as a whole, according to the report. The focus in the Penrose Report on “making markets work for people, not the other way around” suggests that new rules and regulatory authorities are on the way.

Delayed adoption of the European Electronic Communications Code adds to the uncertainty for providers

The European Union enacted the “European Electronic Communications Code” (the “EECC”) in 2018, a new Directive aimed at modernizing and revising the European regulatory framework for electronic communications. The EECC was expected to be incorporated into EU Member States’ national laws by December 2020, however, implementation efforts are still underway across the EU. As a result, the European Commission launched infringement procedures against 24 Member States in February 2021 for failing to implement the EECC promptly.

The fact that the EU does not harmonize all aspects of electronic communications laws, as well as the EECC’s handling of web-based (or OTT) communications services, maybe two major reasons for the delay. While the EECC resolves the long-debated question of whether OTT communications services are within the scope of the EU framework by broadly including all of these services, it leaves it up to the Member States to define the scope of obligations that apply to such OTT services that do not allow communication with traditional phone numbers.

The governments of the United Kingdom and Germany have taken action to address the dangers of the internet.

The UK government has now released its full answer to the Online Harms White Paper consultation. The statement reveals that the impending Online Safety Bill will establish a new legal framework to combat hazardous content online (OSB). By introducing a statutory duty of care, the OSB will force in-scope companies (as listed below) to bear responsibility for their users’ safety. Any in-scope companies who provide services to UK users, regardless of where they are located in the world, will be subject to this duty. Social media platforms, consumer cloud storage sites, search engines, video sharing platforms, online instant messaging services, video games that allow interaction with other players, and online marketplaces are examples of in-scope services. The framework is set to be implemented in the second half of 2021.

The UK government wants to make sure that policy initiatives in this sector are coordinated with similar legislation in the US and the EU, such as the European Commission’s proposed Digital Services Act (see above) and the Audiovisual Media Services Directive, which established a new regulatory regime for video-sharing platform services.

In early 2021, the Law Commission in the United Kingdom will issue proposals on the reform of criminal offences about damaging online communications. The UK government will take these recommendations into account and incorporate them into the OSB to the extent necessary, with the OSB itself expected to be available in 2021. As previously stated, the requirements of the juvenile protection law take effect in Germany in Q2, 2021, and we await the findings of any hate speech legislation evaluations.

New (case) laws on digital copyright

The European Court of Justice (ECJ) added another component to its complicated case law on the “right of public communication” (VG Bild-Kunst v Stiftung Preußischer Kulturbesitz) in March 2021. The usage of hyperlinks and deep connections to copyright-protected information (including framing) does not qualify as a so-called “copyright relevant conduct,” i.e., as a “communication to the public,” according to ECJ case law. However, this is only true if the content is readily accessible online with the approval of the right holder. In light of this, the European Court of Justice has now stated that this criterion is not met where framing procedures thwart effective technological protection measures taken or imposed by the right holder. In this scenario, framing is considered a public statement that requires prior consent (and which would create liability where the authorization of the original rights-holder is not obtained).

The European Court of Justice is now debating whether certain online service providers engage in copyright-relevant acts of public communication. Despite this, the European Parliament has already abandoned the safe harbour for such hosting companies. Article 17 of the 2019 Copyright Directive imposes direct accountability on “online content sharing service providers” for copyright-infringing content uploaded by users, forcing platforms to obtain licenses and to remove and prohibit automatically filtered content. Member states will not be required to harmonize! Special safeguards for user rights are included in some national implementation draughts, such as Germany’s.

References

https://www.mofo.com/resources/insights/210414-key-digital-regulation.html

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

Free speech and Bombay High Court’s stay on Rule 9 of the IT Rules, 2021

By

Rachit Garg

-

October 14, 2021

0

FREEDOM OF SPEECH — Image Source: https://rb.gy/fbmqny

This article is written by Anindita Deb, from Symbiosis Law School, NOIDA. This article aims to discuss the controversial stay on one of the IT Rules by the Bombay High Court on grounds that it was infringing free speech.

Table of Contents

Introduction

Article 19(1)(a) of the Indian Constitution guarantees every citizen the right to freedom of speech and expression. It means that everyone has the freedom to openly express their opinions or thoughts through speech, writing, and printing. The liberty to freely speak is seen as the most basic form of liberty. It has a very crucial position in the liberty hierarchy. It is true that the freedom to express one’s mind is the mother of all other freedoms. However, under Article 19(2), this right to freedom of speech and expression is subject to reasonable restrictions for specific purposes.

The right to freedom is a broad concept that encompasses citizens’ rights to freedom of movement, occupation, and assembly, among other things. However, it is argued that one’s right should not obstruct the right of another. Furthermore, everyone has a duty to the state; one should exercise freedom of expression in a way that does not provoke others or encourage violence. Similarly, if the domain of any such right is not confined, it has a consequence. Thus, this freedom is not absolute and is subject to certain limitations. The limitations are in line with national interests.

Stay on IT Rules by the Bombay High Court

Dissent is necessary for a healthy democracy to function. However, the new 2021 Information Technology (Intermediary Guidelines and Code of Ethics for Digital Media) Rules may have a chilling impact on freedom of speech, with a journalist or news publisher having to think twice before criticising the State administration, according to the Bombay High Court.

The Bombay High Court struck a powerful blow for freedom of speech on Saturday, August 14th, by suspending Rules 9(1) and 9(3) of the controversial new IT Rules, 2021, which compelled digital news media to adopt a ‘Code of Ethics’ mandated by the Central Government.

In petitions submitted by legal news portal The Leaflet and journalist Nikhil Wagle, Chief Justice Dipankar Dutta and Justice GS Kulkarni issued an interim order; the Court has not yet issued a final judgement on the constitutionality of the restrictions, and the case will be heard again in September.

The IT Rules 2021 are being challenged in several court cases, including one in the Bombay High Court. Several digital media organisations and journalists around the country have filed petitions claiming that the new rules violate the right to free speech and go beyond the boundaries of their parent legislation.

While interim relief has been granted in some of the other lawsuits, this is the most significant order so far because the Rules have never been stayed by a court. The Centre has often claimed in Supreme Court judgments, including the Sudarshan News hate speech case from late 2020, that it believes the “venomous” internet news medium should be regulated.

The Bombay High Court’s observations suggest that this attempt to provide the government oversight over digital media through the 2021 Rules may fail, given the key mechanism for doing so has been discovered to require entirely new legislation. Any such legislation would most likely be impossible to implement since it would be attempting to establish a censorship regime, which would be difficult to explain as a justifiable restriction on the right to freedom of expression.

Provisions on which the Bombay High Court has placed a stay

Despite the fact that Leaflet and Nikhil Wagle sought the court to stay the operation of several regulations, the High Court only decided to do so for Rules 9(1) and 9(3). The judges determined that the other restrictions were either not yet in effect or were identical to existing rules for restricting content that had not been challenged by the petitioners.

All digital news media publishers are required under Rule 9(1) to “observe and adhere to the Code of Ethics” set by the Central Government in the Appendix to the rules. The Rules provide an ethical code for digital media producers, including:

News and current affairs content providers and
Online curated content providers (also known as OTT platforms).

The following existing codes will apply to current affairs:

The Press Council of India’s Norms of Journalistic Conduct;
The Cable Television Networks Regulation Act, 1995‘s programme code.

The requirements for OTT platforms include:

Categorising content into age-appropriate categories as specified,
Implementing an age verification mechanism for access to adult content, as well as access control measures such as parental controls, and
Improving content accessibility for disabled people.

To deal with accusations that a digital media publisher has breached the Code of Ethics, Rule 9(3) establishes a three-tier grievance redressal mechanism: the publisher, a self-regulatory body of digital media publishers, and an inter-ministerial committee established by the Centre.

Anyone can file a complaint, and if they are displeased with the response, they can move it up the tiers. This gives the Central Government, through the inter-ministerial committee in tier 3, supervision of overall information produced by digital media houses and enables it to impose sanctions on those who, it believes, have breached the Code of Ethics.

The government does not need judicial intervention or a court order to do this, which raises legitimate concerns about censorship, as the high court would find.

Reason behind the stay on IT rules by the High Court

The new IT Rules are being challenged on the basis that they go beyond the jurisdiction of their parent legislation, the Information Technology Act of 2000 (the IT Act). “The IT Act does not seek to censor content on the internet, except to the extent mentioned in Section 69A thereof,” the Bombay High Court observed. Section 69A of the IT Act allows for the blocking of access to content in the interests of India’s sovereignty and integrity, defence, and public order.

“Adherence and/or observance of moral standards in the code has been raised to the status of a mandatory compliance,” according to the IT Rules. While the programme code’s dos and don’ts were undoubtedly relevant, they were being imposed on digital media in an unsustainable manner.

The government’s inter-ministerial body will be in charge of interpreting the Code of Ethics in the end. The court noted that this meant that the committee might conclude that criticising a public figure violates the Code, even if the criticism did not amount to defamation or any of the other grounds for reasonable speech restrictions under Article 19(2) of the Indian Constitution.

These broad terms employed in the Rules, according to the judges, have a “chilling effect” on digital media since they can be “hauled up for anything if the committee so wishes”. The High Court determined that the IT Act’s power to create rules could not include a provision like this. As a result, “Rule 9 appears to be ultra vires the IT Act’s provisions, as it is beyond the delegated power.”

The judges agreed with the petitioners that Rule 9 should not be in effect while the matter was still being considered in its entirety, stating that this would have a “pernicious effect.” They found that a stay was necessary because it was concluded that making the Code mandatory was a prima facie infringement of the fundamental right to freedom of speech.

Are the IT rules permanently suspended: the path ahead

The Bombay High Court has only given an interim ruling and has not rendered a final verdict on the validity of the IT Rules, as previously claimed. While the preliminary findings seem persuasive, there is no assurance that the final verdict will be the same. Given the arguments cited to demonstrate why Rule 9 is a worry, it seems unlikely that it will survive even if the rest of the provisions are upheld. The amended Rules include several provisions for intermediaries (especially social media corporations) that have not been challenged in court by media organisations or journalists, and thus will not be affected by the Bombay High Court’s final verdict. Of course, it’s possible that the Bombay High Court will be unable to hear the matters going ahead. To avoid multiple orders, the Supreme Court is currently examining a petition to merge all of the individual petitions against the IT Rules around the country into one case before the Supreme Court itself.

Whether the Supreme Court will take up the case or not is yet to be seen in future, but the Bombay High Court’s judgement will protect the fundamental rights of digital news media until further court orders are issued.

Conclusion

One of the foundation stones of a democratic government is freedom of speech and expression. This liberty is viewed as the first prerequisite of liberty because it is required for the correct functioning of the democratic process. It has a privileged position in the hierarchy of liberties, ensuring that all other liberties are protected. It is true to say that it is the mother of all other freedoms. This liberty includes the ability to obtain and disseminate information. It involves the freedom to freely transmit it through available media to as big a population of the country as possible, as well as internationally. While this right is not absolute and is subject to reasonable restrictions, the Bombay High Court found Rule 9 of the IT Rules in excess of the restrictions to be reasonably imposed on media houses. Hence, the judges decided to put a stay on the rule by means of an interim order.

References

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act and other similar laws

By

Diva Rai

-

October 14, 2021

0

Allahabad-Highcourt-1-1-1-scaled — Image source - https://bit.ly/3aEW1Up

This article is penned down by Pranjali Aggarwal, a student of the University Institute of Legal Studies, Panjab University, Chandigarh. This article deals with Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act 1986, its provisions and lacunas, similar laws passed by various states to combat organized crimes, and other measures that can be taken to subdue mafia activities.

Table of Contents

Introduction

The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act was introduced by Chief Minister Vir Bahadur Singh, in 1986. The Act got the assent from the President on March 19, 1986, but it is deemed that it came into force on 15 January 1986. The prime motive of the Act was to book 2500 well-known gangsters of the state and to put them behind bars so as to curb such organized crimes and anti-social activities that disturb the tranquillity of the state.

Important definitions under the Act

Gang

The word gang has been defined under Section 2(b) of the Act.
According to this provision gang basically means a group of people who engage in anti-social activities either individually or collectively.
And want to intentionally hamper public order or try to gain any undue benefit or advantage either for himself or any other person through violence or intimidation or coercion or in any other way.
Anti-social activities have been explicitly mentioned under this Section and it encompasses offences that are punishable under Chapter XVI or Chapter XVII or Chapter XXII of Indian Penal Code,1860 (IPC) and covers almost all the offences under special and local law as enumerated under sub-clause (i) to sub-clause (xxv) of Section2(b) like illegal mining, sale of illicit liquor, kidnapping for ransom, extortion, etc.

Gangster

The word gangster has been defined under Section 2(c) of the Act.
The person can either be a member or leader or organizer of a gang.
And includes any person that abets or assists in any activity of a gang as mentioned under clause (b).
The person can play his role either before or after the commission of the Act.
Or the person who indulges in harbouring the offender (for eg- providing food and shelter to the offender or aiding him any other way).

Public Servant

This term is defined under Section 2(d) of the Act.
According to this Section, the term ‘public servant’ under this Act has the same meaning as under Section 21 of the IPC or any other law enforced for the time being.
And it also includes the person who is helping the police or state authorities lawfully by giving information or evidence regarding offence or offender or any other manner.

About the UP Gangsters Act – powers given to the court and government

This Act provides a broad spectrum of powers to the court as well as state government to deal with organized crimes which are as follows:

Powers of the Court

Under this Act, if any person who is a gangster as per definition is liable for imprisonment of either description varying from two to ten years and also a fine of a minimum of 5000 rupees.
If the gangster commits a crime against a public servant or any family member of a public servant then that person shall be liable for imprisonment of a minimum of three years of either description and a fine of a minimum of 5000 Rupees.
In case it is found that any public servant:

provides assistance to gangster either before or after the commission of crime and assistance can be directed by him or through others;
or if he does not perform the legal duty that he is bound to perform in order to curb such activities;
or if he does not comply or follow the orders laid down by a court or any senior-related to this aspect.

Then such public servants shall be liable under this Act for the imprisonment of either description ranging from three years to 10 years and also fine.

The District Magistrate can order attachment of any property whether movable or immovable if he has the reason to believe that the property is acquired by the gangster through the commission of an offence which is triable under this Act irrespective of the fact that the cognizance of such offence is taken by any court or not as per Section 14 of the Act.
If the court receives an application by a witness or prosecutor or according to its motion can take requisite steps to maintain anonymity regarding the identity and address of the witness to ensure the safety of the witness.
If the court finds it fit according to the reasons that are to be recorded, then it may order to proceed with the trial in the absence of the accused and even evidence of a witness can be recorded; the only condition is that he can be called again for cross-examination if the accused wants.

Powers of the State Government

Section 5 of the Act, gives the power to the State Government to establish special courts for the whole or any part of the state for the purpose of speedy trial. This can be done by the government wherever it seems necessary.
The appointment of the presiding judge is done by the State Government with the consent of the Chief Justice of the High Court and can also appoint additional judges as per the requirement.
The State Government shall appoint a Public Prosecutor for special courts and even can appoint an Additional Public Prosecutor or Prosecutor and Special Public Prosecutor for any particular case or class of cases.
The State government can make rules for the purpose of this Act by notification.
The State government or any officer or authority of state government are protected as per provision of Section 22 and no legal proceeding can be filed against them if they acted in good faith or to comply with the rules of the Act.

Misuse of the law in UP

The definitions of gang and gangster under this Act are loosely developed. They do not have any precise procedure or formulae to allege a person as an offender. This definition in itself has a wide perspective. According to the definition, virtually anybody can be framed under this Act and charged as a gangster. In various cases, it is being observed by the courts that canard cases that are based on bald and fictitious allegations are filed under UP Gangsters Act, 1986. These kinds of cases are mainly filed by people or police officials to settle their personal scores or grudges. Even police officials are not complying with the guidelines and are taking arbitrary actions to exploit the provisions of the Act for their own good.

For instance, in the matter of Kapil Raidas v. the State of Uttar Pradesh (Bail Application no. 6671 of 2020), the accused was charged under five (similar) cases. It was alleged that he committed theft and Rs 6600 was recovered from him. On the basis of this single recovery, the amount was divided into Rs 1600, Rs 1800, and Rs 3200, and three cases of theft were framed against him. This scenario of dividing the amount seemed very absurd. On the basis of the single recovery, the Investigating Officer knew the exact amount pertaining to each theft. Thus, the viability of the case so framed against the accused was questioned and as the deliberate intention of the police to misuto the Act came forward the accused was granted bail. In this case, Hon’ble Justice Dinesh Kumar observed that police is prima facie misusing the Gangsters and Anti-social Activities (Prevention) Act,1986 thoroughly as it has become a general practice that police file several cases against the accused on the basis of the false, fake, or bogus charges to just implicate him under this Act as this was not the only case in which such scenario came up.

In another case of Smt. Aalia v. State of Uttar Pradesh (Bail Application no. 23691 of 2021), Hon’ble Justice Vivek Kumar held that it was unusual to frame the lady under the UP Gangsters Act as only two cases were pending against her in this case. The Court even ordered that the District Magistrate should submit a personal affidavit stating the reasons why the lady was remarked as criminal under this Act as only two cases were pending against her.

In the case before Allahabad High Court, the accused was claimed to be a ‘dreaded criminal’. He was denied bail for three months as he was booked under the stringent UP Gangsters Act in the police station of District Amroha. On further investigation, it was revealed that police officers falsely claimed him to be a dreaded criminal and the Akbarabad police station mentioned for the purpose of the case does not even exist. Thus, this case unveils the capricious practices followed by the police officers.

In another case, the petitioner was a businessman against whom a single case was filed under various sections of IPC,1860 that were Sections 364A, 302, 404, 201, 120B but he was not convicted of any offence in this case. The Court observed that charging the person under this Act and categorizing him as ‘Goonda’ will directly impact a person’s reputation and social standing. The term ‘goonda’ is perceived as the antithesis of the reputed person and thus it would taint his reputation in society. This will naturally vitiate his fundamental right because the Right to reputation is enveloped under Article 21- Right to Life as decided in the case of Subramanian Swamy v. Union of India, Ministry of Law & Others (2016). So it was held by the court that no person should be charged unnecessarily or without proper evidence under this Act which is being frequently done by police officials.

Daya Shankar Misra, an advocate of the Allahabad High Court is of the view that some provisions of the Act are ultra vires of the Constitution of India. For instance, in the case of minor offences also the minimum imprisonment provided is two years which makes it violative of Articles 14, 19, 21 and 22 of the Constitution of India. Thus, these provisions lead to grave consequences and people suffer egregiously in the case of petty offences. No doubt, these provisions are made strict but these should be in accordance with the fundamental rights of the citizens.

In this Act, the authority is solely in the hands of the police and they do not require any sanction of the Executive or Judiciary to charge the person. This allows police officials to use the Act according to their will. This Act is used by police to reduce the number of pending cases. They pick up random people who already have a criminal history and force them to give confessions and then frame them as criminals in those pending cases. This elucidates the fact that the police are clearly using this Act as per their whims for their advantage as stated by the lawyer in the interview with The Economic Times.

“Bail, not jail” norm for gangsters

The Act was formulated to redress the issue of hike in organized crimes in the state of Uttar Pradesh because of several gangsters present in the state. The legal lacunas and loopholes were realized within six months of the passing of the Act. The major cavity that existed was the easy bail policy in the Act as by September, 475 of 771 alleged gangsters arrested under this Act were able to get the bail successfully. The provisions for bail are mentioned under Section 19(4)(b) of the Act according to which the court should consider all these aspects:

Prima facie case against the accused
Gravity and nature of the offence
Nature of the supplementary charge
Background of the accused

And if the Court is satisfied that the accused, if released on bail, will not engage in any anti-social activities and will not endanger the peace of the society, then the accused can be granted bail. But the callous and careless behavior administered by the police aids the accused in obtaining bail in these cases. Police act casually and do not indulge in proper digging of the cases against the accused. Despite the fact that information is available at their fingertips because of technology, still incomplete gang charts are being submitted by the police in the cases filed under the U.P. Gangsters Act. This behavior of police makes it very convenient for the accused to obtain bail in such cases as half-baked information does not present them as a potential threat to society. This observation was made by the Honorable Allahabad High Court in the landmark case of Nishant@Nishu v. the state of U.P (Bail Application No.-14323 of 2021).

Recent developments in the Act

The Allahabad High Court recently observed and dismissed 12 writ petitions filed by Ritesh Kumar alias Rikki and others stating that even if there was only a single FIR filed against the accused then also the accused can be charged under Uttar Pradesh Gangsters and Anti-Social Activities,1986. The Court held that even though the word used is ‘anti-social activities’ but it also includes the singular aspect and the case is maintainable on the solitary FIR also. The High Court relied on the judicial precedent of Rinku Alias Hukku v. State Of U.P. And Another on 12 January 2000 and Subash v. State of U.P. & anr:1988 SCC Online All 973 to conclude this judgment.

Recently powers have been given to Deputy Commissioners also by the Yogi government to attach the property but only in the territories of Noida and Lucknow under U.P. Gangsters Act, 1986. This power was earlier vested only with Commissioners and District Magistrates.

Laws related to organized crime in other states of India

Organized Crimes refer to the crimes in which several people are involved in the commission of the offence and they have their specific roles and tasks which they have to perform for the commission of an offence. Drug smuggling, human trafficking, brothels are some of the examples of organized crimes. In India, there is no particular national law to combat organized crime but the offenders can be charged under Section 120B (Criminal Conspiracy) of IPC, The National Security Act,1980, The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988, The Immoral Traffic (Prevention) Act 1867, etc. Several states like Maharashtra, Haryana, Gujarat, Andhra Pradesh, Karnataka, Telangana have introduced their own statutes to control the organized crimes. This power to introduce laws to maintain peace and tranquillity among the public has been given to the state governments under the 7th Schedule of the Constitution of India.

The Maharashtra Control of Organized Crime Act, 1999

The prime objective for which the MCOCA Act,1999 was instituted was to regulate and battle against the rising cases of organized crime and terrorism. This law has deterrent provisions like the power to intercept wire, electronic or oral communication in order to stop the commission of the offence and arrest the offenders at the embryonic stage only. Under this Act, the confession before the police officer can be used as evidence. The cases are tried by special courts.

Punishment for the offender under this Act is as follows-

If the death of any person is caused in the consequence of the offence committed then the accused is liable for death or life imprisonment with a fine of Rs. One lakh.
In other cases, like where death is not caused, a person who intentionally abets or conspires, any person who harbours or conceals the offender, etc) the punishment varies from five years to imprisonment for life and a minimum fine of Rs. five lakhs.

The Union Ministry of Home Affairs ordered the application of this Act in the National Capital Territory of Delhi also in the year 2002.

The Karnataka Control of Organised Crime Act, 2000

The Karnataka Control of Organised Crime Act, 2000 is modelled on the Maharashtra Control of Organized Crime Act 1999 to overcome the upsurge of unlawful activities in the state. After the 2009 Amendment, terrorist activities have also been included under the definition of organized crimes. Under this Act, organized crime has been defined under Section 2(e) which states that any continuing unlawful activity which is committed by an individual either singly or jointly with the purpose to achieve any pecuniary benefits or to hamper public peace by the use of coercion, intimidation, etc. The punishment propounded under this Act is similar to that propounded by the MCOCA,1999. This Act also has the provision for the formation of special courts and interception of telephones. In the year 2017, the Act was used in the murder case of Gauri Lankesh and 17 persons were arrested.

Several other states like Gujarat (Gujarat Control of Organised Crime Act,2003), Telangana (Telangana Control of Organized Crime Act, 2001), Andhra Pradesh (Andhra Pradesh Control of Organized Crime Act,2001), Haryana (Haryana Control of Organized Crime Act, 2019) have passed the similar legislatures to combat organized crimes in their states which are almost verbatim of the Maharashtra Act.

Control of mafia activities in the country – what more can the law do

The following measures can be taken by the government to control and eradicate the rising mafia activities in the country:

A National Act can be formulated so that there is a uniform system to combat the menace of organized crimes and no person can escape the liability because of irregularities in the Act.
As these crimes involve a large group of people, it is very difficult to collect evidence against all the people. Thus, police personnel need to have more powers and resources to facilitate proper and intensive investigation on the matter.
These crimes are not particularly related to one state but spread throughout the country. So, a mechanism of state coordination should be set up where all the information regarding these crimes could be shared. This will help in the prevention of organized crimes.
Ordinarily, trucks and containers are used to smuggle goods, weapons, and other related stuff. So strict watch should be kept on such vehicles to mitigate their use in organized crimes.
The cases should be disposed of speedily so that prospective threats to society could be abated. In order to do that more special courts dealing with organized crimes should be incorporated.
The technology should be put into use to increase surveillance and monitor such mafia activities in the country. Moreover, the evidence obtained electronically would be more reliable than the oral evidence and thus will aid in the conviction of gangsters.
More undercover operations with the help of the investigating agencies can be initiated to infiltrate among the offenders which will help to discover the mastermind of the plan or to avoid potential offences.
Public awareness should be created so that they help in preventing organised crimes. A vigilant citizen can help to locate anti-social activities. In some cases where the gang mafias become a legend for some people and people follow them blindly, the awareness will also help to curb these instances.
Mass media should play its role to expose organized crime and acquaint the general public against such illicit happenings in the country so that the public can play its role to combat the issue.
Generally, these mafia activities are operational even cross-borders so the system of international cooperation should be set up to fight against the crime together. The countries could set up uniform policies to apprehend such criminals.

Conclusion

The anti-social and unlawful activities are ramping up day by day in the country. No doubt several measures have been employed to abate such crimes but in reality, these Acts are not enough to eradicate the issue because these activities have percolated deep down in the country. The target for the action taken should be to eradicate the problem from the roots so that it is not capable of growing again. The Gangsters Act, no doubt has stringent measures to overcome the mafia activities but it has various loopholes that favour the accused and thus the purpose of the Act remains unfulfilled. The precise definitions of gangster and gang should be propounded so that no guilty person can escape the punishment. The provisions should be checked and loopholes should be tightened so that it is not misused by the police. The procedure for speedy disposal of the cases should be laid down and other measures should be incorporated to combat such crimes. The collective effort and coordination of all the stakeholders can surely pave the way to get rid of the mafia activities from the country.

References

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

Reasons for India to sign the torture convention

By

Rachit Garg

-

October 14, 2021

0

Berne Convention — Image source - http://bit.ly/2AQtJEs

This article is written by Divyanshi Singh of Symbiosis Law School, Noida. This article explains the UNCAT and why it should be ratified by the government.

Table of Contents

Introduction

It is so easy for the privileged individuals to sit in their blanket and say that ‘Yes, human rights are basic rights available to everyone!’ Hardly do they know the reality. Hundreds of people die in custodial violence each year. Custodial violence is nothing but exploitation of one’s human rights.

In 2020, the Supreme Court requested the government’s response to Section 176(1A) of the CrPc, which requires mandatory judicial inquiries into incidences of deaths, disappearances, rape, and other abuses in judicial custody after the death of father-son duo, Jayaraj and Bennicks. Let us understand the intricacies of custodial violence and how it infringes on one’s human rights.

What is UNCAT

The UNCAT or the United Nations Convention Against Torture is an international human rights treaty that was adopted in 1984 and is currently under revision by the UN. All United Nations member states have promised to fulfil the Universal Declaration of Human Rights’ commitment that “no one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment” (Article 5).

To fulfil this shared promise, the United Nations Convention Against Torture (UNCAT) of 1984 provided States with precise rules that specify the key features of effective torture prohibition and prevention.

The aims of this convention are as follows:

To prohibit torture and other cruel, humiliating, or degrading treatment and punishment around the world.
To prevent torture in any region under their jurisdiction, the Convention requires nations to take appropriate measures.
It also prohibits governments from transporting people to any country where there is cause to believe they will be tortured.
This convention’s absolute ban on torture and other cruel, inhuman, or humiliating actions has been a principle of customary international law since the convention entered into force.

Article 5 of the Universal Declaration of Human Rights states that “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.”

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the UN General Assembly in December 1984. It defined custodial violence as any sort of violence that includes all such violence that is done by the state machinery.

One of the goals for the convention’s adoption was to counter the increased incidence of torture by public authorities, both during the war and in peacetime, and to persuade member governments to take appropriate preventive measures.

Torture is widely criticised across the globe. Aside from the Universal Declaration of Human Rights, it has been extensively incorporated into a wide range of international and regional human rights treaties, including-

Custodial violence and torture

What is custodial violence and torture

Custodial violence is most commonly associated with violence under police and court custody. It encompasses murder, rape, and torture. Custodial violence is defined as violence that occurs in court and police custody when an accused is tortured emotionally or physically. The majority of the custodial deaths were linked to causes other than custodial torture, such as suicide and death in hospitals while receiving treatment. One of the most serious difficulties with imprisonment violence is that it jeopardizes human rights. This crime is an outburst against humanity and one of the numerous stumbling blocks in a democratic democracy.

Torture (from Latin tortus: to twist, torment) is the deliberate infliction of extreme bodily or psychological anguish on someone by another as a punishment or to fulfil the torturer’s wish or force the victim to perform some activity. Torturer’s goal is not just to cause severe trauma, but also to dismantle a person’s identity and humanity via physical or psychological anguish and suffering.

Torture is used by law enforcement officials as “questioning,” “sustained interrogations,” “extrajudicial executions,” and other terms. These activities by the police show a variety of tendencies to go overboard with such third-degree procedures. As per NCAT, torture methods used by the police included hammering iron nails into the body, applying roller on legs and burning, ‘falanga’ where the soles of the feet are beaten, stretching legs apart in the opposite side, hitting in private parts, stabbing with a Statutoryscrewdriver, electric shock, and so on.

Types of custodial violence

There are mainly 3 types of custodial violence:

Physical violence: Using physical force or smashing, which may result in weariness and the dread of death
Psychological violence: Mentally tormenting them on failing to provide accurate information. This can be accomplished through shame and threats as well.
Sexual violence: This can involve verbal and sexual abuse, as well as humiliation of the victim’s dignity. This could have long-term psychological consequences for the victim.

Legal provisions for custodial violence in India

In 1984, the Law Commission of India proposed that if a man suffers bodily damage or death while in police custody, the court may conclude that the injury was caused by the police officer who had custody of that person at the time. For some reason, even this has not been followed up on 36 years later. The cops have been allowed carte blanche (complete freedom) because no proper anti-torture legislation has been enacted.

For decades, custodial violence has been a major human rights concern in India. It is one of the primary challenges to democracy and the advancement of human well-being. According to National Crime Records Bureau (NCRB) data, just 26 police officers were convicted of custodial violence between 2001 and 2018, despite 1,727 such deaths being registered in India.

To counter the tendency of police officers to use torture to extract confessions, etc., the Constitution of India as well as other statutory provisions were enacted which is discussed below.

Significant constitutional provisions that protect against custodial violence:

Article 20

Right not to be a witness against himself: Article 20(3) of the Constitution states that no accused person can be forced to be a witness against himself. This right prohibits the act of coercion and torture by the police to get evidence. On the contrary, under Section 179 of the IPC, everyone is legally obliged to tell the truth to a public official about any subject. Section 161 of the CrPC also allows the police to question the accused during an inquiry. On the other hand, if the authorities apply any pressure, subtle or crude, mental or physical, direct or indirect, but considerable, to obtain information from an accused, it becomes ‘compelled testimony,’ a legal term.

Article 21

Article 21 states that no one shall be deprived of life or personal liberty except following the procedure established by law. The right provides a constitutional guarantee against torture, assault, or harm, and thus serves as a deterrent to custodial torture and violence.
The Supreme Court broadened the ambit of Article 21 of the Constitution in Maneka Gandhi vs. Union of India (1978), emphasising that this right is not limited to physical existence but also includes the fundamental right to live with dignity.
In another case, Inderjeet v. State of Uttar Pradesh (2014), the Supreme Court ruled that torture-like punishment is unconstitutional.
The Supreme Court ruled against mandatory handcuffing of inmates in Prem Shankar Shukla v. Delhi Administration (1980), ruling the practice to be inhuman.

Article 22

Right to be informed of the ground of arrest: Article 22(1) of the Indian Constitution guarantees the arrested person the right to receive information about the reasons for his arrest, as well as the right to consult with a legal practitioner of his choice to defend him. Section 50 of the CrPC grants the accused person a similar privilege, as well as the right to request bail.
The arrested person has the right to a speedy trial under Article 22(2) of the Indian Constitution. Any arrested person must appear before the nearest magistrate within twenty-four hours of being apprehended. Any additional detention requires the approval of a magistrate. Thus, he has the right to seek bail, to reveal his grievances arising from any maltreatment meted out to him in custody, and to have an impartial investigation on the validity of his arrest.

Other legal provisions:

Section 41 of the Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C, and 41D, ensuring that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends, and the public, and legal representation is available.
Section 163 of the CrPC restricts investigating officers from any sort of bribing, intimidating or promising under Section 24 of the Indian Evidence Act (1872) and it also prohibits him from forcing someone to make any statement that he wishes to make of his own free choice. All confessions made through inducement, intimidation, or promise are inadmissible under Section 24 of the Indian Evidence Act of 1872. The clause gives the accused the right not to make any confession against his will because it is generally understood that if such evidence is declared admissible, it will provoke the police to employ torture and force to extract evidence against him.
Section 348 of the IPC addresses wrongful confinement and prohibits such confinement to extort any confession or information to detect any offence or misbehaviour. Wrongful confinement has been made a penal offence, punishable by imprisonment for up to three years and a fine.
Section 25 of the Indian Evidence Act provides that no confession given to a police officer can be used to convict him of any crime.
Section 26 of the Indian Evidence Act declares that any confessions made while in custody are inadmissible unless made in the immediate presence of a Magistrate.
Section 27 of the Indian Evidence Act provides an exemption to Section 25. It states that a statement made in custody may be acceptable if it leads to the discovery of some new information. However, the Supreme Court has stated that if the accused is forced to deliver a confession under this Section, he may exercise his protection against self-incrimination under Article 20(3) of the Constitution.
Section 49 of the CrPC serves as a protection from excessive punishment. It specifies that an arrested individual can not be subjected to greater restriction than is necessary to keep him from escaping.
As per Section 55A of the CrPC, the custodian of the accused person is duty-bound to take care of the accused’s health and safety.

DK Basu guidelines

In the case of DK Basu v. State of West Bengal (1996), the Court issued a list of 11 guidelines that police must follow in all cases of arrest and detention. In addition to the Constitutional and Statutory Safeguards, the guidelines are to be observed in all circumstances of arrest and detention. The following are the guidelines: –

The police officers who conduct the arrest and interrogation of the arrested individual must wear accurate, visible, and legible identity and name tags with their designations. All workers who handle the arrestee’s interrogation must have their information entered in a register.
The police officer carrying out the arrest should prepare an arrest memo at the moment of arrest, and that such memo shall be attested by at least one witness, who may be a member of the arrestee’s family or a respected person from the region where the arrest is made. It must also be countersigned by the arrestee and include the time and date of the arrest.
A person who has been arrested or detained has the right to have one friend, relative, or other person known to him told that he has been arrested and is being detained at the specific location unless the attesting witness of the arrest memo is himself such a friend or relative of the arrestee.
The time, place of arrest, and venue of custody of an arrestee must be telegraphically communicated by the police to the next friend or relative of the arrestee who lives outside the district or town via the Legal Aids Organization in the District and the police station of the area concerned within 8 to 12 hours of the arrest.
As soon as he is arrested or detained, the arrested person must be informed of his right to have someone informed of his arrest or detention.
At the place of detention, an entry must be made in the diary regarding the arrest of the person, which must also reveal the name of the next friend of the person who has been informed of the arrest, as well as the names and contact information of the police officials in whose custody the arrestee is.
During the arrest, the arrestee must be examined for any major and minor injuries. If there is an injury on the body, it must be recorded at that moment. The Inspector Memo must be signed by both the arrestee and the officer making the arrest, and a copy must be handed to the arrestee.
During his custody, the arrestee shall be subjected to a medical examination by a trained doctor every 48 hours.
Copies of all documents, including the arrest memo mentioned above, should be given to the Magistrate for his records.
The arrestee may be allowed to meet with his counsel during interrogation, but not for the duration of the interrogation.
A police control room should be provided at all district and State headquarters where information about the arrest and the arrestee’s place of custody should be communicated by the officer causing the arrest within 12 hours of the arrest and displayed on a conspicuous notice board.

Steps taken by India to implement UNCAT

In 2010, Lok Sabha had passed the Prevention of Torture Bill, 2010 as a hesitant step to ratify UNCAT. Following this, a Rajya Sabha multi-party select committee was set up to improve the Bill under the chairmanship of Advocate Ashwini Kumar. However, the Bill lapsed.

According to a recent report by the National Campaign against torture, 1,731 persons died in police custody in India in 2019. That equates to the death of about five people per day.

In an interview with The Wire, Ashwini Kumar emphasised that before ratifying a treaty, India’s conventional practice is to first pass national legislation expressing any international treaty obligation. This means that before ratifying the UNCAT, India will need to implement a Prevention of Torture Bill. Consequently, such a Bill was suggested by the Law Commission, the National Human Rights Commission, and the Rajya Sabha Select Committee but has not been paid much heed to.

In 2016, Ashwini Kumar had approached the Supreme Court to seek direction from the government for ratification of the convention, however, the petition was turned down after being pending for 3 years.

In 2017, the Law Commission of India recommended that the government should ratify the UN Convention Against Torture and draft an anti-torture law. The Law Commission also proposed a draft for the same, however, the proposed Bill lacked essential requirements for a stable law.

National Human Rights Commission

On October 12, 1993, National Human Rights Commission (NHRC) was founded. The 1993 Protection of Human Rights Act (PHRA) was revised in 2006 and again in 2019.

The Commission embodies India’s concern for the creation and protection of human rights. Recognizing that custodial torture is one of the most serious violations of human rights, the Commission gave comprehensive instructions to law enforcement officials on how to report deaths in police cells and penal facilities soon after its formation. It required the DMs and SPs of the districts to report custodial deaths within 24 hours of the death. The recording of post-mortem examinations has now been made mandatory.

There is no doubt that the NHRC’s proactive involvement has put some pressure on the police, as there is always the risk that they will be held up at any point. The Commission does not solely rely on police records, and it places a high value on complaints received from the victim’s family members. According to a Transparency International report, the commission received more than 16 lakh allegations of custody fatalities from 1993 to 2016, with just about 22,000 still for resolution. Furthermore, the procedure of filming, post-mortem examination, and judicial inquiry has made the process more public and has prompted law enforcement officials to be more cautious.

Why should India ratify the UNCAT treaty

India signed the treaty in 1997, however, it is one of the few countries that have yet to do so. According to the National Human Rights Commission, violence and torture in prisons and jails are already “rampant.” According to the National Human Rights Commission (NHRC), 1,731 persons died in detention in 2019. And these are only the reported cases.

‘Dalit Lives Matter’ and other trends akin to the US’s ‘Black Lives Matter’ has failed to address the root cause of police torture in both democracies. The distinction is critical. The dominating issue in America has quickly shifted to ‘racism’ (whose corrections are, quite rightly, inclusive measures such as seeking greater Black presence in more diverse areas of employment and education). Unfortunately, just naming a social issue such as “racism” or “casteism” does not address the criminal in the room, the police officer, whose aggression is sanctioned by the state. Both social and criminal issues must be addressed in diverse ways in India, the United States, and everywhere.

During the same week that the world observed International Day in Support of Victims of Torture (June 26) in 2020, a father-son duo in Tamil Nadu who kept a shop open after the COVID-19 curfew hours perished in custody, allegedly after being tortured by the Thoothukudi district police. The persistence of brutal treatment demonstrates that India is willing to safeguard police violence. India is one of only a few countries that have yet to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which was adopted in 1987. (UNCAT).

Torture can never be justified under any given circumstances. War, insurgency, public emergency, or orders from superiors cannot be used to justify the practice. It is expressly prohibited by our Constitution, our laws, and our Supreme Court’s categorical pronouncements. It is categorically illegal, both under international humanitarian law and the United Nations’ human rights standards. Nonetheless, the National Human Rights Commission receives petitions daily alleging the use of torture, as well as deaths in prison, as a result of the actions of those sworn to preserve our Republic’s laws and Constitution, as well as to ensure the security of its residents.

Every death in custody serves as a reminder of why India should ratify the Convention Against Torture.

Conclusion

A new norm of connection between the state and the people is required, as said by Anne Gallagher, director-general of the Commonwealth Foundation, in 2020. How can millions of citizens expect humanitarian protection against forced migration, exploitation, and bondage when the Government of India is hesitant to approve fundamental legislation to protect them from everyday violence perpetrated by its agencies? The UNCAT may not be the sole solution, but it is unquestionably a component of it. And we can use it to find a solution.

References

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

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

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

Rebuilding Kerala post the flood : law and policy perspective

By

Rachit Garg

-

October 14, 2021

0

sacto_flood_control — Image source - https://bit.ly/3vetAnT

This article has been written by Shohom Roy, from Symbiosis Law School, Noida. This article touches on the issue of reconstructing post-flood Kerala from a legal and societal point of view.

Table of Contents

Introduction

Kerala or “God’s own country” is renowned for its beautiful natural vistas and rich valleys. The province suffers from frequent landslides and storms, especially in the monsoon season. However, the Okchi cyclone along with one of the worst droughts has adversely affected the coastal communities of Kerala. The floods in the months of July and August in 2018 were the biggest natural disaster in the state’s history. The flood claimed the lives of 483 people, many other living beings, and inflicted over Rs. 20,000 crore in damage. Natural disasters underscore the importance of having strong and comprehensive disaster management and environmental policy. The natural infrastructure that allows protection from natural disasters, especially in the face of the very real implications of climate change, is the state’s one-of-a-kind geophysical feature.

Evaluating the current legislation and policy regime surrounding conservation in Kerala

The unique geophysical landscape of Kerala is the natural barrier that provides protection against the disastrous effects of natural calamities. However, the Kerala Disaster Management Policy of 2010 does not have any provisions regarding the protection of the ecosystems through disaster management plans and risk mitigation etc. In spite of having specific provisions regarding the welfare of ecosystems during a disaster, the Kerala State Disaster Management Plan of 2016 has failed to achieve its objective in letter and spirit. The Post Disaster Needs Assessment Report of the 2018 Kerala Floods highlights the immense environmental degradation due to the floods.

Kerala benefits from various Central and state legislation and policies that are concerned with the protection of the natural ecosystems existing in the rich and varied landscape of the province. However, these legislations are rendered useless by their defective implementation. For instance, the Water (Prevention and Control of Pollution) Act, 1974 has failed to achieve its objective of controlling pollution in water bodies due to the Kerala State Pollution Control Board’s improper enforcement of guidelines regarding discharge of effluents by industries. On a similar note, groundwater reserves are depleted and polluted at a rapid rate. The lack of control on waste management leading to the dumping of plastic and non-biodegradable wastes poses a major challenge to the protection of water bodies.

The extraction of minerals like granite, sand, etc contributes to the increase in pollution levels in the state of Kerala. Despite legislations like the Kerala Minor Mineral Concession Rules, 2015, Environmental Impact Assessment Notification, 2006, and other guidelines, the unsustainable methods of mineral extraction have not been stopped. In light of the lack of stringent laws and laxity in the enforcement of existing laws, the Supreme Court in the case of Deepak Kumar vs State of Haryana & Ors, (2012) had held that mining activities should be allowed after environmental clearance. This judgement was also upheld by various cases before the Kerala High Court. One of the foremost reasons behind the frequency of landslides and floods can be attributed to the reckless mining activities on hill slopes. The disaster management organisations must pay heed to this menace and reassess the process of granting mining permits.

Legislations like the Biological Diversity Act, 2002 cater to the needs of the diverse species of animals and plants in the state of Kerala. However, the laxity in the implementation of the guidelines poses a major challenge to the protection of animal life during natural disasters. Mechanisms like the People’s Biodiversity Registers can prove to be instrumental in assessing information regarding biologically prioritised areas and help with the post-natural disaster rehabilitation programs. Similarly, Biodiversity Heritage Sites (BHS) grant strong legal protection to natural ecosystems and protect them from human encroachment and exploitation. However, the government has provided no clarity regarding the usage of mechanisms like the PBRs and has been unsuccessful in declaring any BHS across the state of Kerala.

Protection of ecosystems existing in forests and highlands

The forests and hills especially those belonging to the Western Ghats are governed by various Central and state laws. Reports like the Western Ghats Ecology Expert Panel Report or the Gadgil Report of 2011 followed by the Kasturirangan Committee Report of 2012 suggested the government bring the entire Western Ghats within the ambit of the Eco-Sensitive Areas (ESAs) with added restrictions on land use depending on ecological sensitivity and importance.

After the Kasturirangan Committee Report, the Ministry of Forests and Environments ordered state governments to declare ESAs through a draft notification on ESAs in the Western Ghats through the Environment Protection Act, 1986. The population and boundaries of the villages surrounding the ESAs, as informed by the fourth draft notification on ESA for the Western Ghats by the Ministry of Forest and Environment, is available on the website of the Kerala State Biodiversity Board. The recent intervention by state authorities like the National Green Tribunal protested the reduction of the extent of ESAs under the Kasturirangan Report. The government has been urged to implement the recommendations of these reports and constitute effective mechanisms for the prevention of encroachment, mining and infrastructural development in areas of ecological importance.

There are legislations like the Kerala Forest Act,1961 and the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 which are responsible for governing the forests and asserting the government’s control over all natural resources. The principal legislation protecting the rights of the forest-dwelling tribal communities is the Forest Rights Act, 2006. This Act acknowledges the importance of sheltering these communities, who hold valuable traditional information regarding the areas they inhabit, from exploitation. In the event of natural disasters, the ancient knowledge of these communities can be utilized for mitigating the damages.

Protection of coastal and marine ecosystems

Kerala has legislations like the Wetland (Conservation and Management Rules) 2017, Kerala Conservation of Paddy Land and Wetland Act, 2008 and Coastal Zone Regulation Notification, 2011 to cater to the ecological needs of its numerous coastal wetlands, lagoons, mangroves and beaches. These legislations have been criticized in the wake of the 2018 floods. A recent amendment to the Kerala Conservation of Paddy Land and Wetland Act exempts the conversion of paddy fields and wetlands for public purposes by the government. These wetlands governed by the local administrative bodies can be regularized for a nominal fee of Rs. 500 along with some documentation. The state lacks a database of the number of paddy fields and wetlands existing within its territorial domain. The Central government’s The Wetlands (Conservation and Management ) Rules, 2017 which mandates an identified list of wetlands in every state is ineffective in Kerala. There is an imminent need for statutory authorities to implement stringent provisions instead of diluting the wetland protection regime.

The Coastal Zone Management Plans which classify the 580 km of Keralite coastal stretch has not been published. The current regime pays no heed to the needs of the local communities. The Shailesh Nayak Committee Report recommends cutting down on the extent of the no-development zone in rural areas and seeks special concessions for boosting the tourism industry. These suggestions implemented by the Kerala government encourage construction in vulnerable areas for housing and tourism purposes, thereby adding to the problem of endangerment of certain endemic flora and fauna.

Protection of riverine life

Rivers are one of the most important natural assets of Kerala. Around 44 Keralite rivers are responsible for irrigation, electricity, drinking water supply and various ecological services like prevention of flooding. A lack of stringent policies and regulations has led to pollution and degradation of the riverine ecosystem. Some of the legislation like the Pampa River Basin Authority Act, 2009 and the Centrally Sanctioned Scheme of National River Conservation Plan focusing on specific areas have failed in implementation. Other legislations like the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 cater to the problem of dredging of river sand from river banks and river beds. In light of the present circumstances, it is clear that there is no comprehensive and integrated law or policy aimed at the overall management and conservation of the rivers in Kerala.

Flood management in India

The menace of floods is not a present-day phenomenon. According to the report on the Flood Management Program for XIth five-year plan stretching from the year 2007-2012, approximately 7.55 million hectares of land are afflicted by floods on average, every year, claiming the lives of about 1560 people and damage of Rs 1,805 crore to property and utilities.

However, a report by the Comptroller and Auditor General of India on the Schemes for Flood Control and Flood Forecasting shows that despite the frequency of floods and the subsequent damage caused in their wake, the implementation of effective disaster management measures has been neglected. The Report states:

In spite of the goal set by the XIIth plan of setting 219 telemetry stations, 310 base stations and 100 flood forecasting stations, about 56 telemetry stations have been installed in the country as of August 2006. The state of Kerala does not have a single flood forecasting station.
222 telemetry stations out of the 375 telemetry stations were non-functional right after setting them up and therefore no data is available from those telemetry stations during that time period.
The state of Kerala has neither an operation and maintenance manual nor an emergency action plan for around 61 dams. The country fares poorly in terms of disaster management planning with only 7 % of the large dams having an effective emergency action plan.
The only framework which caters to the requirement for Emergency Action Plans is the Dam Rehabilitation and Improvement Project by the Central Water Commission.

Recourse for victims of the flood

The Central Water Commission is the apex statutory authority responsible for managing the early flood warning system. The CWC had issued a Standard Operating Procedure for Flood Forecasting. The information regarding a possible deluge was shared on the website of the Commission and distributed to the local administration. However, in spite of being aware of the possibility of a flood in the areas receiving excess rainfall, the local administration failed in their duty of disaster management. The Ministry of Power for the state of Kerala reported that the Idukki Dam was capable of holding water even if the gates of the Mullaperiyar Dam were opened. However, this oversight in dam management resulted in devastating floods and caused immense damage to the people.

Article 21 of the Constitution of India mandates the State to take all necessary precautions and measures to preserve and protect human life. Article 21 serves as a guiding principle for the State’s action throughout the occurrence of a calamity. In the Bhopal Gas tragedy, the Supreme Court of India while interpreting Article 21 of the Constitution emphasized the enormity of human suffering caused by the negligence of particular individuals and directed the Union Carbide Corporation to pay a sum of around 470 million dollars as damages to the victims of the disaster. In the case of Jay Laxmi Salt Works Ltd V. State of Gujarat (1994), the Apex Court held that when the State undertakes a duty and is negligent in the performance of the said duty, it is liable to compensate the individuals suffering loss or injury directly due to the state’s negligent actions. The tortious liability mandates that a common man when wronged cannot be left without remedies just because the State is the wrongdoer.

In light of the negligence and mismanagement of the disaster management system, the state of Kerala is liable to pay damages for the losses incurred by the victims of the flood. The evidence shows dereliction of duty almost to the point of criminal negligence by the bureaucrats appointed in statutory authorities responsible for disaster management. Adequate compensation is a constitutional right under Article 21. The loss of life and property should be evaluated and compensation should be paid adequately. The government should also establish a fact-finding committee to assess the causes and impact of the calamity.

Institutional strengthening

Statutory entities responsible for environmental governance have always been diligent in the state of Kerala. The institutional mechanism for the protection of the environment and conservation of forest and biodiversity comprises government directorates, statutory institutions and independent research organizations. For example, the state of Kerala established an autonomous Department of Environment from the pre-existing Science, Technology and Environment Department in 2006. This department was later renamed the Department of Environment and Climate in 2010. The Directorate of Environment and Climate Change is responsible for supervising the implementation and working of different environmental programmes, Other institutions established under various legislations like the department of forest and wildlife, agriculture, fisheries, water resources and specialised bodies like the State Level River Authority work in synergy to achieve the goal of protecting the environment.

Several eco-tourism landscape based programs have been developed by the State Forest Department. The models developed in Periyar and Parambikulam Tiger Reserves could be replicated all across the state. An initiative to implement the Biodiversity Act, 2002 all across the state by the Kerala State Biodiversity Board can improve the conservation programs focusing on the identification of flood and drought resilient plants and animals. After the devastation of the 2018 floods, a survey to analyse the impact of floods on biodiversity of the state in terms of riverine population, fish migration, riparian vegetables, invasive specifies, mangroves, soil biota, etc is commendable. The Green Protocol under the Suchitwa Mission attempts to provide technical support to the local self-government entities prohibiting the usage of one-time plastics and controlling water pollution.

Challenges to institutional strengthening

The governmental institutions have been handicapped by rampant corruption, red-tapism, bureaucracy and lack of resources. The Kerala State Pollution Control Board and its regional offices have not been successful in implementing the environmental regulations and control the ever-increasing amount of pollution. A possible solution to this conundrum is the identification of the source of the problem and taking effective remedial action. For instance, the State Environment Impact Assessment Authority which evaluates projects belonging to Category B of the EIA Notification has not been set up immediately after the completion of the tenure of the previous members. This lag has a tremendous impact on the environmental preservation efforts in the state of Kerala. Similarly, the forest department should encourage community participation and raise awareness regarding afforestation policies along with the effective implementation of forest conservation programs.

A major obstacle for government entities involved in environmental conservation programs is budgetary constraints. The dearth of funds results in the lapse of many effective and innovative programs. While mismanagement in Union and State budgetary allocation is a major reason behind the shortage of funds, the issue could be tackled at the grass-root level. The Green India Missi o n seeks to converge the national programs like the Mahatma Gandhi National Rural Employment Guarantee Scheme, Compensatory Afforestation Fund Management and Planning Authority, National Afforestation Program, National Rural Livelihood Mission, Integrated Watershed Management Program, Programs of Ministry of New and Renewable Energy, National Rainfed Area Authority, etc in areas surrounding forests and micro watersheds. This would combine the resources of the various statutory organisations and reduce the budgetary constraints for each program individually. The state of Kerala has received permission from the National Executive Council under Green India Mission to execute its Annual Plan of Operation and Perspective Plan. This might prove to be pivotal in the effective implementation of the various policies and schemes that have been unable to achieve their targets due to a shortage of funds.

Duplication of work by different institutions can lead to several conflicts as well as wastage of the tax-payers’ money. There is an imminent need to coordinate and integrate the activities of such agencies to prevent such careless squandering of resources. Statutorily recognized funds like the Local Biodiversity Fund under the Biological Diversity Act, 2002, River Management Fund under the Kerala Protection of River Band and Removal of Sand Act, 2001 must be utilized in a proper and efficient manner. Corporate Social Responsibility Fund can make an important impact on the efforts to save the environment while encouraging environmental awareness and active citizenry among public and private sector entities.

The conservation of globally important sites like the Western Ghats, Vembanad Kole wetlands can prove to be an important source of international revenue. Tags under the UNESCO World Heritage Sites and RAMSAR entitle these areas to international funding. The revenue acquired must be utilized for the improvement and maintenance of the site along with the people living in those areas. The mechanism of taxation in the form of carbon and other green taxes as well as payment for ecological services can help mitigate the problem of shortage of funds.

Decentralized governance in rebuilding Kerala

The 73rd and 74th Amendments to the Indian Constitution introduced a new fold within the democratic governance structure of India. The Local Self Governments (LSGs) ushered in the era of Panchayati Raj which has been instrumental in eradicating the problems of inequality, illiteracy, etc in the state of Kerala. These local administrative bodies have also worked for the development of programs centring on ecological conservation and welfare. These LSGs and other legal bodies work with statutory agencies like the Biodiversity Management Committee at the gram panchayat level, furthering the cause of environmental protection. Similarly, ‘Oorukootams’ or village level committees, Joint Forest Management Committees, Gram Sabhas and Community Forest Resource Management Committees are established and empowered to deal with environmental problems in forest areas.

The Disaster Management Act, 2005 has been called out for its inadequacy and negligence in recognising the role of the local bodies like Panchayats in mitigating the losses caused by natural calamities. The Act provides for disaster management plans at the national, state and district level while disregarding the plans that could be implemented at the grassroots levels. Although Kerala Disaster Management Policy, 2010 acknowledges the importance of local bodies in disaster management, the scope of action for these local bodies in Kerala seem to be confined to the directives issued by the state and national level government departments and agencies. The lawmakers must realise that the response system after a natural calamity depends entirely on the local self-governments for relief, rescue and rehabilitation. Empowering these LSGs is the need of the hour to prevent such huge damage to life and property as witnessed in the 2018 floods.

Steps to prevent disasters in future

Improvisation of flood forecasting

The initial step is to make use of the new flood predicting advancements. The lack of monitoring networks in India and other developing countries is a major restriction that inhibits near-real-time flood prediction. In response, researchers at the International Water Management Institute (IWMI) and elsewhere are developing new methodologies for forecasting floods based on river discharge using increasingly available satellite sensors.

Ecological restoration

Settlements must be shifted out of the floodplain over time, allowing it to revert to its natural state. To aid in the healing of the river basin ecosystem, sound plans must be adopted. Measures such as stringent regulation of sand mining and other activities that directly affect river flow should be included in these plans. Planned river flooding downstream, which simulates the annual flood cycle to manage fluvial sediment in the river and reservoir, is also significant. Roads, buildings, and other structures encroaching on the floodplain, as well as diverse land uses (such as high-value agriculture), may limit the scope for controlled flooding, while some high-flow restoration should still be achievable. Dams’ enhanced water discharges are occasionally employed to dilute effluent discharge downstream. Due to human health issues, restoring naturally low levels of flow might be difficult, if not impossible, in many instances.

Building more infrastructure

Reservoirs built in the heart of river basins, based on feasibility assessments, are critical for reducing the risk of water-related disasters by increasing surface water storage capacity. Dams have a variety of economic benefits and can help to offset the negative effects of water unpredictability and extreme climate events. Large-scale water infrastructure, on the other hand, has incurred huge social and environmental costs, spurring calls for alternative, natural-based solutions.

An all-encompassing strategy

Individual flood risk and ecological impact mitigation methods should be part of a holistic approach based on an understanding of the many components of the urban water system, as well as upstream and downstream interactions. The approach, known as Integrated Urban Water Management (IUWM), includes not only flood models and the use of embankments to divert water but also the entire water cycle—water sources and supplies, as well as wastewater (for example, its use for urban cropping) and stormwater, viewing urban water in the context of the larger basin.

Institutional reforms

Better catastrophe risk management, with the ultimate goal of establishing water security, can be a vital engine for long-term growth. To accelerate progress toward this goal, water management should be delegated to a single institution that is capable of making high-level decisions about water use, implementing steps to decrease inequities in water resources, and responding to water-related calamities.

The United Nation’s Sendai Framework for Disaster Risk Reduction, (2015-2030) provides various recommendations for the protection and conservation of the environment along with innovative methods to build resilience for preventing and mitigating disasters. The culmination of the efforts of the legislature, bureaucracy and the citizens of Kerala in implementing these steps and recommendations can increase the state’ resilience against natural disasters to a great extent. The study conducted by Thanal, Climatic Action Network South Asia, UNICEF and Phia Foundation titled ‘Climate Resilient Kerala’ calls attention to some of the major gaps existing in the climate legislation of Kerala. It also attempts to synchronize domestic and international climatic action plans and recommends updating various laws with a view of achieving ecological resilience and environment protection.

Conclusion

The 2018 floods were, without a doubt, eye-opening in various ways. On the positive side, it brought individuals and state machinery together. During and after the floods, the state has led the way with effective rescue and relief activities. The Post Disaster Needs Assessment Report also acknowledged that environmental damage within the sensitive areas, has been the least as compared to other states. The fact that there are fewer casualties in such a densely populated state is a sign of progress in disaster management. Kerala’s civil society is rather strong in comparison to other Indian states, and there is a willingness to join in collective actions in the event of a disaster; behavioural and cultural changes are required to encourage collective activity in normal conditions.

References

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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