All you need to know about the oxygen concentrator black marketing case

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September 14, 2021

Black marketing — Image Source: https://rb.gy/hfzxha

This article is written by Pranav Sethi, from SVKM NMIMS School of Law, Navi Mumbai. This article analyses the oxygen concentrator black marketing case in light of Navneet Kalra’s case.

Table of Contents

Introduction

“The greater the penalties laid on sellers in the black market… the higher the black market price.”

– Kenneth E. Boulding

In a pandemic crisis, fighting the coronavirus is similar to fighting a war of the government. However, because this is a different form of conflict in which the opponents are invisible and intangible, we must keep in mind that in an epidemic-like situation where disease spread occurs quickly, stopping control of the disease within a specific period becomes difficult. People must work together to assist the country in breaking the transmission chain. Using methods such as self-isolation, social separation, and the state’s quarantine measures. Many individuals lost their normal lives as a result of the devastating virus, and India’s economic situation deteriorated. Prime Minister Narendra Modi stated in an address that if the pandemic is not handled in time, it might set the country back 20 years.

The pandemic has had a significant effect on mental wellbeing, access, which has been aggravated by the parallel underground market. Despite the Covid-19 pandemic, the challenges experienced have only been worsened by institutional shortages of essential resources such as medicines, oxygen, oxygen cylinder refills, and hospital beds. People supporting each other find these important survival supplies is a positive aspect in such times of sorrow and suffering. For some, though, doing “business” and maximizing profits is the order of the day. With new cases of hoarding and black marketing of such services being reported every day, the Indian legal system is dealing with the definition and understanding of hoarding and black marketing to better execute its rules on the ground level.

Defining black marketing

Trading on the black market in contravention of publicly enforced restrictions such as rationing laws, legislation prohibiting the sale of specific items, and official currency exchange rates. In times of conflict, rationing is customary to level the transfer of scarce commodities and services; black-market activities may include demanding higher rates than the legal price, stealing or counterfeit ration funds, and arranging side payments in addition to the official exchange rate to receive a given amount of product.

When the lockdown was first implemented, individuals rushed to purchase masks and sanitizers, resulting in a shortage of masks and sanitizers in the market. Several medical establishments began black-marketing at that time. A regular Rs. 60 sanitizer was selling for 4-5 times its cost, and people could afford it out of fear. As a result, the impact began with the commencement of lockdown.

Black marketing of non-authenticated masks and sanitizers

People were so keen to buy masks and sanitizers that several people started selling non-authenticated masks and sanitizers because there was a shortage of masks and cleansers in the market at the moment. People began creating single-layered masks solely for profit, ignoring the general public’s health & wellbeing.

Unethical practices

Moreover, when the government began providing food packages to the poor, people began to engage in unethical behaviours there as well. For example, if the government was releasing 50 thousand food packets per day, the authority would take control of the 50 thousand food packets from the government while simultaneously collecting thousands of food packets contributed by the general public and distributing those packets to the poor while keeping the money.

What legal recourse can the accused take in black marketing cases

Bail is a legal term that refers to an accused person’s temporary release from custody. Bail is derived from the French word bailer, which means “to deliver” or “to give.” Bail is a term that has been used for a long time. From Section 436 to 450 of the Criminal Procedure Code, 1973, the requirements for bail and bonds are specified. These Sections envisioned in the code provide a summary of the bail provisions.

Does bail have to be compulsorily granted

It is compulsory to give bail to the arrested person in the case of a bailable offence, but it is up to the court’s discretion in the case of a non-bailable offence. Section 436 of the Code discusses the circumstances in which bail may be granted, while Section 437 discusses the circumstances in which bail may be granted in non-bailable situations.

The order’s appealability (Section 439 of the code)

Certain decisions issued under Section 436 of the Code are subject to appeal, according to Section 439 of the Code.

The magistrate’s decision to the session’s judge is appealable.
If the court of sessions issues an order to the court from which an appeal is pending.

The maximum period of detention for a prisoner facing trial (Section 436-A of the Code)

According to Section 436-A of the Code, an undertrial prisoner who is not charged with criminal offences punishable by death or life imprisonment will be discharged after serving one-half of the maximum term specified for the crime committed by him.

Defining anticipatory bail

The word anticipatory bail can be defined using the expression anticipatory, according to Section 438 of the Code. Anticipatory bail is the bail granted by the court in anticipation of the arrest. When a person is granted this bail, it guarantees that if he or she is detained shortly they will be discharged on this anticipatory bail. No doubts may be raised about the release unless the person performing the bail is arrested, hence the decision granting such bail is completely dependent on the arrest.

The Law Commission recommended Section 438 of the Code. In its 48th report, they conveyed their concerns about the requirement of anticipatory bail, stating that while it is a great addition to the code, it should only be used in extraordinary or exceptional circumstances.

Oxygen concentrator black marketing case

524 oxygen concentrators were discovered in three of Navneet Kalra’s eateries, Khan Chacha, Nega Ju, and Town Hall, during a single raid. The matter was then handed over to the Crime Branch of the Delhi Police.

Navneet Kalra’s arrest and observations by Delhi Police

Navneet Kalra, a businessman charged with black marketing oxygen concentrators in the capital with a foreign SIM company called Matrix Cellular Services Ltd, was detained by Delhi Police on May 16. He was apprehended in Gurugram, at his brother-in-law’s farmhouse. Authorities investigated the farmhouse after discovering that Kalra’s brother-in-law, who had only visited the property once in the previous month, had returned three times in the last ten days, according to police. On May 5, DCP (south) Atul Kumar Thakur revealed that during an investigation at Nege Ju Restaurant and Bar, officers from the Lodhi Colony police station found 419 oxygen concentrators.

The event of repeated calls to two IPS officers

During the search, Kalra turned off his cellphone later that evening. However, authorities discovered that Kalra had made repeated calls to two IPS officers, along with a former Delhi Police Commissioner and a senior IAS officer, before doing so.

Kalra and a group of friends left his house in two vehicles: a Range Rover and a Thar jeep. In Gurgaon, he was last seen at the Damdama resort. Police discovered that on May 5, he turned off his phone and began using his domestic help’s phone to make WhatsApp and Facebook calls.

Legislations involved

The investigation had been handed up to the Crime Branch’s interstate cell. A case under Sections 420 (cheating), 120-B (criminal conspiracy), 188 (disobedience to order duly promulgated by public servant) of the Indian Penal Code, 1860, Sections 3 and 7 of the Essential Commodities Act, 1955, and Section 3 of the Epidemic Diseases Act, 1897 was registered. Four men were apprehended, such as the restaurant’s supervisor. 96 more oxygen concentrators were retrieved from Khan Chacha Restaurant and nine from Town Hall Restaurant in Khan Market at the incident of one of the defendants.

During the examination, it was discovered that Matrix purchased over 7,000 devices from local vendors and Chinese companies and sold them to Covid patients and their families at “exorbitant prices.” The company’s CEO Gaurav Khanna and Vice President Gaurav Suri, as well as three other workers, were arrested previously. The defendants have been charged with deception, the Epidemic Diseases Act, and the Essential Commodities Act.

Investigation team observations

According to officials, businessman Navneet Kalra was arrested in Delhi for suspected black marketing and stockpiling of oxygen concentrators during the coronavirus outbreak. Ever since seizing more than 500 oxygen concentrators from three of his establishments in the nation’s capital, the businessman had been on the run for more than one week. Concentrators were essential medical supplies for COVID-19 patients and are in increasing demand as the pandemic enters its second wave. The concentrators, according to the police, were imported from China and sold at an extravagant price of Rs 50,000 to 70,000 each unit, as opposed to a cost of Rs 16,000 to Rs 22,000 per unit.

Timeline of events

On Thursday 20th of May, a Delhi court ordered Navneet Kalra to 14 days in judicial imprisonment for his role in the recovery and possession of Oxygen Concentrators by the Delhi Police from the ‘Khan Chacha’ cafe, which he owns. After the Court denied the Delhi Police’s appeal for a 5-day police custody remand for Kalra, Duty Metropolitan Magistrate Akansha Garg sent him to judicial detention. On the expiration of the Court’s previous order of 3 days police custody, the police filed a new application for 5 days police custody remand.
On Saturday 22nd of May, the Delhi court refused to keep suspected businessman Navneet Kalra in police detention for five days in respect to the Delhi Police’s recent recovery and confiscation of Oxygen Concentrators from the ‘Khan Chacha’ cafe in his possession. After hearing the views of Advocate Vineet Malhotra and Additional Public Prosecutor Atul Shrivastava, Duty Metropolitan Magistrate Vasundhara Azad denied Delhi Police’s appeal for a 5-day police custody remand for Kalra. The court ordered, “At this stage, I don’t feel the police custody remand is warranted. I am dismissing this application.”
Navneet Kalra, a businessman charged in connection with the Oxygen Concentrators hoarding case, told Delhi court on Friday 28th May, that the Delhi Police had no authority to scrutinize or imprison him in the current case under the Drugs and Cosmetics Act, 1940, and that he could not be held in pre-trial detention. Senior Advocate Vikas Pahwa ended his pleadings in favour of Navneet Kalra in his regular bail request, claiming that it was a case of “high-headedness” and “making Kalra a scapegoat.”
Senior Advocate Vikas Pahwa relies significantly on the Supreme Court’s decision in the matter of Union of India v. Ashok Kumar Sharma (2020) and stated that “Delhi Police has no jurisdiction to either include these offences in the FIR or to investigate or to even arrest me. The law has been settled that they cannot include the case in the FIR. Only the Drug Inspector can arrest me under the Drugs and Cosmetics Act. They don’t file a charge sheet and file a complaint.”
Senior Advocate Vikas Pahwa made the following argument about the entire procedure being pre-arrest detention, “I can’t be put to pre-trial detention stage. All the recoveries have been made. When there are efforts by the Supreme Court and HCs to decongest the jails, why are the police going on a spree to arrest people?”
At this point, the Court asked Pahwa if the fact that he bought supplies from Matrix Cellular and subsequently sold them for greater prices than the Matrix set was covered by black marketing or not.
Pahwa argued as he concluded up his arguments by stating that, “Why does the government not regulate it? Why doesn’t it say that only the government will sell it? I have deep roots in society. My lord may impose any conditions particularly when 5 other co-accused were given bail by this Court. This denial of bail at this stage particularly when I’m not required for custodial interrogation, I am with folded hands praying bail on the grounds of parity and principles of bail.”

Bail of businessman Navneet Kalra

On 29th may in a Delhi Court while addressing Senior Advocate Vikas Pahwa and Advocate Vineet Malhotra representing Navneet Kalra and APP Atul Shrivastava representing the prosecution, Chief Metropolitan Magistrate Arun Kumar Garg issued the order. Kalra was granted bail after submitting a personal bond of Rs. 1 lakh each from two sureties. Additionally, the Court has placed certain restrictions on Kalra, including that he should not approach the concentrator customers, that he will not alter any evidence or mislead witnesses, and that he join the investigation whenever necessary.

Senior Advocate APP Atul Shrivastava’s arguments

During the hearing, APP Atul Shrivastava told the Court that it was a clear case of deceiving and inducing people to buy low-quality oxygen to make a lot of money and that he was a member of a conspiracy.

Shrivastava contended that the concentrators were acquired and delivered to covid care facilities after Kalra marketed items under the pretext of “premium German-made quality,” rejecting the defence’s claim that police officers bought and distributed them.

Shrivastava submitted in the case that, “I’m giving an example. If I’ve opened my door in the night. Will it give the right to the thief to come and rob the house? The government has liberalized the policy. They’ve given an example of Salman Khan. Salman Khan has not sold it at higher prices.”

Senior Advocate Vikas Pahwa’s arguments

Senior Advocate Vikas Pahwa’s representations to the Court stated that the Delhi Police had no jurisdiction to examine or detain him in the current case involving the Drugs and Cosmetics Act and that he could not be held in pre-trial detention. Pahwa made a comparison between the price of oxygen concentrators he supplied and those sold at Amazon and India Mart, claiming that it was a case of “high-headedness German-made” and making Kalra a scapegoat. “Admittedly, the oxygen Concentrators of the same make are available on Amazon and India Mart at 95,000 and 89,000 respectively whereas I’m selling them for 60,000.” Pahwa submitted.

Pahwa moved on and submitted a response to the charges that the products were of poor quality by stating that, “If the products were substandard, would the Delhi Police have given the same to covid care centres? I’m only cheating. It’s a clear case of high-headedness. It’s a clear case of making somebody a scapegoat. If they are conducting it, they are seizing it from me and then giving the same to covid care centres for saving the lives of people. If the government can do this, why can’t I?”

Legislations involved & refusal of interim protection by Delhi High Court

In this case, Navneet Kalra is currently being held in judicial custody. The Delhi Police has filed a case under Sections 420, 188, 120B, 34 of the IPC, as well as Sections 3 and 7 of the Essential Commodity Act, to seize around 500 oxygen concentrators from restaurants around the country. The investigation has been handed up to the Crime Branch.

After a two-day hearing, the Delhi High Court refused to grant Kalra interim protection from arrest after he asked the court for anticipatory relief in the case. Senior Advocate, Abhishek Singhvi’s request was denied by a single judge bench led by Justice Subramonium Prasad, who orally stated, “I’m persuaded by the trial court’s order. Interim protection cannot be given at this stage.”

Conclusion

In a democracy often in these times of pandemic people have been doing black-marketing and want to use such times as an opportunity to escalate their business in indulging various malpractices. The accused was ordered not to approach the clients to whom he sold the concentrators, and not to fabricate evidence or mislead the witnesses by Chief Metropolitan Magistrate Arun Kumar Garg. “Accused is having clean antecedents, in as much as, no previous involvement of the accused in any criminal case has been reported. No purpose will be served by keeping the accused behind bars,” stated the Chief Metropolitan Magistrate.

The state’s appeal that the suspect may interfere with the evidence is without validity, according to the 23-page court judgment because all essential evidence has been already recovered from Kalra’s ownership. The magistrate, however, stated that the culprit was implicated in the execution of violations such as defrauding that under the Indian Penal Code and other parts of the Essential Commodities Act, both of which are punishable by up to seven years in jail.

References

http://www.legalserviceindia.com/legal/article-2592-economic-legl-and-social-impact-of-covid-19.html

https://www.livelaw.in/news-updates/delhi-court-grants-bail-to-businessman-navneet-kalra-in-oxygen-concentrators-hoarding-case-174892

https://www.livelaw.in/news-updates/navneet-kalra-to-delhi-court-in-his-bail-plea-in-oxygen-concentrators-hoarding-case-174844

https://www.livelaw.in/top-stories/delhi-court-sends-navneet-kalra-to-judicial-custody-rejects-plea-seeking-5-days-police-custody-remand-174449

https://www.livelaw.in/top-stories/delhi-oxygen-concentrators-hoarding-case-delhi-court-rejects-anticipatory-bail-to-businessman-navneet-kalra-174058

https://www.livelaw.in/columns/covid-19-pandemic-black-marketing-essential-commodities-act-1955-174416

https://thewire.in/government/khan-chacha-owner-navneet-kalra-arrested-in-oxygen-concentrator-black-marketing-case

https://www.livelaw.in/top-stories/delhi-court-remands-navneet-kalra-to-3-days-police-custody-in-oxygen-concentrators-hoarding-case-174262

https://www.idlehearts.com/2463409/the-greater-the-penalties-laid-on-sellers-in-the-black-market-the

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Policy improvisation : addressing vulnerability caused by intrusion of AI in privacy of individuals

By

Oishika Banerji

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September 14, 2021

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This article has been written by Parul Chaudhary pursuing the Diploma in International Data Protection and Privacy Laws from LawSikho.

Table of Contents

Introduction

Artificial Intelligence is becoming smarter every day. A huge amount of data is being fed to AI tools in order to make them more “human-like”. Initially, the idea was to help humans do everyday tasks and avoid repetitive and mundane tasks by leaving it on the AI to take care of, which would perform those tasks in the most “human-like” way possible by a machine. As time progressed, the big players in the technology world and their research departments have tried to surpass human capabilities by making a machine better than a human, it can process information faster, get the work done more efficiently and minimize errors to a large extent. However, in the process of trying to make the machines smarter, we have opened a world of privacy externalities that need to be addressed. AI has intruder effects on not only your personal data but also that of others. So, there is an urgency for policy and the law to keep abreast of such changes and improvise its scope in order to better protect the privacy of all individuals.

The article aims at highlighting how the deployment of AI-centric technology may expose the world to several vulnerabilities which may prove to be a threat to security, privacy and data protection principles, and the need to bridge the gap between technological advancements and policy-making.

Intruding privacy

On one hand, AI tools are being used to enhance cyber security services, while on the other, the very same tool can be used to infringe the privacy of its users.

Several AI- powered tools have been alleged to be collecting data even when the user is not using it specifically or feeding data into it by choice. Applications like Apple’s Siri, Google’s assistant, and Amazon’s Alexa have been suspected of listening to users’ conversations and recording personal or sensitive data by way of such eavesdropping. This can also lead to a situation of function creep, where the data being collected is used for purposes other than what it was intended for.
Another aspect where the use of AI is infringing the privacy of individuals is by deploying the facial recognition system and storing personally identifiable information without the explicit consent of the individuals. Digital surveillance runs contrary to the concept of consent and compromises the right to privacy. In such a situation, although your data is part of a much bigger data set, it will not be impossible for the AI to de-anonymize you due to the recombinant nature of data, and thereby breaching your right to privacy, as guaranteed by the Indian Supreme Court in the famous KS Puttaswamy v. Union of India judgement.
Yet another aspect that is linked with AI collecting and storing Big Data of its users is that it might be used for heuristic manipulation. AI technologies combined with machine learning can be used to identify and use human foibles against its users. The behavioural control can potentially lead to human manipulation, and then the day will not be far into the future where machines would control and govern human decision making because we would have fed almost all storable data over time.
Additionally, there could be machine bias which may lead to social inequality and discrimination. The United States uses an AI-powered software called ‘Correctional Offender Management Profiling’ for alternative sanctions in their judicial system of hearing bail matters. In a report by ProPublica, it was found that the software was biased against African Americans. This biased opinion is unjust and prejudiced against a particular group of people without a reasonable basis. Another incidence of machine bias was reported when an AI- driven technology misidentified a bunch of black women. This can lead to targeting individuals on the basis of their race due to a defect in AI technology.
In recent times, AI has also become the go-to tool for perverts and presumptuous politicians. ‘Deep fakes’ have already started making prominent rounds in these circles.

Deep fakes and AI

These are machine learning manipulated audio/video recordings that can be morphed and distorted in any fashion to achieve all sorts of nefarious goals. Such warped content can be put to use in blackmailing, political antics, defamation, and in the production of compromising videos/ audios. Video deep fakes have actively proven to be a nuisance in political campaigns and life of celebrities; it is also speculated that very soon, audio deep fakes will be rampant in contorting the public view. These audiotapes could be easily used to paint any individual as sexist, racist, or anti-national. The age-old tools of human confirmation, eyes, and ears will fail us in such scenarios.

Increased vulnerability of cyber attacks

Deep fakes are not the only concern that experts have regarding the eldritch exploitation of AI technology. Computer scientists believe that hackers and cybercriminals can use AI as both their slave and accomplice; they could use machine learning algorithms to teach artificial intelligence to adopt social engineering as its means of cyber attack. Such developed AIs can be termed ‘master manipulators’ and could cause massive breaches in personal security and evolve with time to digitally attack military strongholds and titanic corporations. This is not a far-off dystopian paranoia; it is a strong probability that could already be a reality under veils. Speaking of dystopia, AI has also been put to use in state surveillance. China is a nation-sized example of the same, using its ‘Orwellian’ facial recognition technology and well-placed CCTVs all over the country to monitor every citizen.

Other potential risks

Since the lines of real and unreal would be virtually blurred, the possibility of an influencer or social media personality being created out of thin air using AI and Deepfakes is not far-flung. Another incident where social media deployed AI was used to invade privacy was the use of a website called www.pleaserobme.com. It used a tweet by the user to identify whether he was at home or not and this information was being used by the burglars.

Even if we omit the negative uses and look at AI in an all-positive light, it still fails to be as flawless as it is said to be. Targeted Ads and misinformation campaigns appear to be two seemingly unrelated things but are all based on a careful network of machine learning and data analytics.

Even personal sensitive information like pregnancies have been accurately predicted by AIs; unfortunately, this too has been used for targeted marketing. But these ‘miracles’ can fall short in the case of machine/data bias which gets introduced when AI systems work with outdated, biased data for forecasting events. Unfairness cannot be put up against these non-sentient existences but, their exploitation could cause destruction to life, mental health, and property. Peaceful coexistence could be at stake when our institutions and authorities would be portrayed as evil tyrants and with all the evidence to back it up. Millions of people could be agitated without even actual human participation. By far, all the potential dark sides of this technology are still unknown, and job automation is the very least of our fears.

Now let us understand how the existing position of the law attempts to regulate AI-based technologies and ensure compliance with the data privacy laws.

Corroborating data privacy compliance by AI

Under the Charter of Fundamental Rights of the European Union, Article 8 recognizes the right to protect one’s personal data. The European Union General Data Protection Regulations do not specifically talk about AI, but it regulates automated processing and decision making. The regulation disallows important decisions about individual liberty and privacy to be taken by completely automated data processing and profiling through Article 22. This is a step towards maintaining fairness and transparency in the decision-making process and not allowing machines to dominate important life decisions or decisions in societal/national interest. This can be read into Article 22 and is recognized as the right to explanation. Another check on the development of AI is the right to erasure as provided under Article 17 of the GDPR. Without data, an AI tool cannot be fueled to perform activities or make decisions. AI technologies absolutely depend on data and a deletion request is a hindrance for its algorithm and performance.

Moreover, AI is not immune to attacks by hackers and data thieves. The AI attacks can create chaos in the existing, seemingly smooth running system and may lead to major losses. For instance, if an AI-driven car is hacked, then it can wreak havoc on the roads and may cause danger to life and property as well. If an AI-powered device like Alexa or Google Home malfunctions due to an alteration in algorithm or code, it can make life difficult for the people using the device. All such instances should be regulated as best as possible with the formulation of policies. Privacy-preserving AI should be used in order to promote privacy by design. Feature hashing schemes should be used as an effective tool for strengthening cyber security and defence mechanisms while using AI.

The Canadian Supreme Court, in R v. Spencer (2014), recognized informational privacy in the online space. It also talked about anonymity as an element of informational privacy. Thus, if AI technologies are used to de-anonymize individuals and re-identify them by collecting data from multiple sources, then it will cause a breach of the informational privacy of an individual.

According to the Indian Constitution, encroachment on privacy stands in violation of the fundamental right to privacy which has been read into the right to life and personal liberty under Article 21. In 2012, a report by a group of experts, constituted under the government of India, talked about technological neutrality and conformity with data protection and international privacy policies, but it did not specifically talk about any policy changes that can be made with special reference to AI. However, in a recent report, the Ministry of Electronics and Information Technology has proposed the use of an anonymization infrastructure for processing Big data in order to promote the privacy of individuals.

Conclusion

While the deployment of AI-powered tools generates issues regarding technological dependency and job replacement, the issue of intruding privacy cannot be overlooked. Restricting AI by privacy compliances may essentially mean stopping the development of the AI to its full potential, but that should not be a ground to bypass the need of protecting the privacy of individuals.

India has not yet passed the Personal Data Protection Bill of 2019, which makes us lag behind against the progressive approach undertaken by the European Union. The General Data Protection Regulation is a pioneering document in the world of privacy and data protection. Learnings must be taken from it and a suitable component regarding the regulation of AI and addressing its vulnerabilities should be incorporated within the new data protection policy in order to keep abreast with the requirements in a web-driven world.

References

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An analysis of all the legal, political and social crises in Afghanistan

By

Diganth Raj Sehgal

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September 14, 2021

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Afghanistan.2e16d0ba.fill-800x450 — Image source - https://bit.ly/3h1L0QB

This article is written by Anushka Singhal, a student of Symbiosis Law School, Noida. In this article, the author tries to throw some light on the legal, political and social crises in Afghanistan. She tries to briefly explain the whole situation and the history behind it.

Table of Contents

Introduction

Afghanistan is going through one of the worst humanitarian crises. America has withdrawn its troops from Afghanistan. Other countries are shutting down their embassies. President Ashraf Ghani has fled and now the Taliban has declared its rule in the country. Civilians are fleeing the country, bordering countries have sealed their borders and there is ruckus all around. This is the current scenario in Afghanistan. But how did it start? What is the role of America in all of this? Who is the Taliban and why are people fleeing? Let us study all of this in detail.

History of Afghanistan

Afghanistan is a landlocked country situated between the present-day countries of Turkmenistan, Pakistan, Uzbekistan, Tajikistan and Iran. Monarchy ended in 1973 in Afghanistan, when Prime Minister and President Mohammad Sardar Daoud Khan came to power. This new government was short-lived and shortly the Prime Minister was removed by a military coup organized by the People’s Democratic Party of Afghanistan (PDPA). Afghanistan was renamed the Democratic Republic of Afghanistan. PDPA joined hands with the Soviet Union to carry out economic reforms in the country. PDPA did atrocities on people and did not want people to follow traditional Islam. This led to chaos in the country and soon there was a civil war. The Soviet Union was an ally of the government and had appointed its military men to help PDPA. Therefore, the Soviet Union occupied Afghanistan. The United States of America was not satisfied with the Soviet occupation of Afghanistan and it started funding Mujahideen, a militant group of Afghanistan that arose during the civil war. The Soviet Union withdrew from Afghanistan in 1989. Civil war continued in Afghanistan and an ultraconservative political and religious faction called ‘Taliban’ emerged in Afghanistan. It ruled Afghanistan from 1996-2001 when a US-led regime toppled down the Taliban government after the 9/11 attack in the United States by the Taliban. The US decided to end these terrorist groups and started a war in Afghanistan. Then, the United States and North Atlantic Treaty Organization (NATO) started rebuilding Afghanistan. Democracy was established in Afghanistan and the new Constitution was adopted in 2004. Since then, the US and NATO have had their troops stationed in Afghanistan. Recently the US decided to withdraw and NATO also decided to do the same, following the US’ footsteps.

Who is the Taliban?

Taliban which means ‘students’ in Pashto. It is an extremist Muslim Militia movement that arose against the Soviet Union in Afghanistan. The Taliban were founded in southern Afghanistan by Mullah Mohammad Omar and it wanted to control the country after the withdrawal of the Soviet Union. It expanded itself by admitting members from the US-funded Mujahideen in its group. Taliban remained in power for five years and within this period, it tried to establish a strict ‘Sharia’ regime in Afghanistan. It banned women from going outside without a male relative, made burqas compulsory and banned western books and shows. Public executions and flogging became a common phenomenon. The world did not recognise the Taliban as the leaders, except for four countries, including Pakistan, which gave recognition to their rule during those five years. Now, the Taliban has again come into power in Afghanistan as the US troops have withdrawn from the country.

The US role

The US has played a major role in the Afghan crisis. Firstly, it funded Mujahideen to counter the Soviet Union. After that, Mujahideen slowly grew into a terrorist group with arms and ammunition. John K. Cooley, the author of ‘Unholy Wars: Afghanistan, America and International Terrorism’, referred to this as “America’s love affair with Islam.” The US realised its mistakes when Osama Bin Laden, the head of Al Qaeda, crashed planes into landmark buildings of New York and Washington. It is said that Al Qaeda and other terrorist groups grew out of those Mujahideens that were funded by America, Pakistan and other countries. After the attack, President George W. Bush led an invasion of Afghanistan supported by an international coalition to eradicate al-Qaeda and hunt down Bin Laden. Osama Bin Laden was killed in Pakistan but the US continued to stay in Afghanistan and fight the Taliban.

The early combat and retreat of the Taliban

In the beginning, the US and other NATO allies started bombing the Taliban forces in Afghanistan. Operation Enduring Freedom was launched. The US engaged in air combat while the fight on land was done by the Afghans. The Taliban regime lost in 2001. Taliban surrendered in Kandahar and its leader Mullah Omar fled the city.

Reconstruction of Afghanistan

Operation Anaconda was launched as ground combat in Afghanistan. It helped in dealing with the Taliban to a great extent. After the Taliban lost, the focus shifted to reconstructing Afghanistan. The US Congress appropriated over $38 billion for humanitarian and reconstruction assistance in Afghanistan between the years 2001-2009. Hamid Karzai was chosen as the interim president. In 2003, the US said that now its focus would be on reconstruction and not on combat. In 2003 only 8000 soldiers were stationed in Afghanistan. Even NATO and the United Nations played an important role in reconstructing Afghanistan.

In 2004, Afghanistan framed its Constitution and the first elections after 1969 were held. Hamid Karzai was elected as the President. Tensions started growing in 2006 and there was a tussle between NATO and the US over whether they should decrease the number of soldiers in Afghanistan or should they send more of them. NATO started focusing on strengthening the Afghan forces rather than on deploying its own. NATO launched the Resolute Support Mission (RSM) to train, advise and assist Afghan forces.

Political treaties and strategies

In 2009, Barack Obama sent more troops to Afghanistan. He increased the number of soldiers in Afghanistan. Along with it, the former president chalked a plan for dropdown in 2011 and even NATO’s International Security Force (ISAF) ended in 2014, and it handed over the security of Afghanistan into the hands of the Afghan Government. Obama’s rule ended and Donald Trump was appointed as the President. He decided not to go ahead with the dropdown as it could lead to the terrorist insurgency. He appointed more troops, especially in the rural areas.

US-Taliban Peace Talks

In 2019, negotiations between the Taliban and the US took place in Doha. The US proposed the withdrawal of more of its troops upon the promise of intra-Afghan talks and a ceasefire in Afghanistan. The talks ended abruptly. In 2020, US envoy Khalilzad and the Taliban’s Baradar signed an agreement that paved the path for military dropdown in Afghanistan on the condition that the Taliban would not use the country for terrorist activities. Joe Biden came to power and he said that he would not withdraw the troops by 1 May 2021 as per the agreement, but he would pull the troops by September 2021.

Human rights at stake in Afghanistan

Human rights are those rights that we possess by virtue of us being human beings. These rights include the right to life, food, education, health, etc. The Universal Declaration of Human Rights (UDHR) has compiled all these rights and formed a declaration that several countries have signed and ratified. Afghanistan has been facing the brunt of war since the 1900s and thus, human rights have been at stake in Afghanistan for a long time. When the Taliban came into power for a brief period of five years, the people saw a few of the worst human rights violations. Women were deprived of the right to education and liberty. Girls were forced to sit back at home and wear a particular type of outfit when going out. People were killed in the open and everyone had to abide by the Sharia laws. Afghanistan witnessed human rights violations not only in those five years but has been suffering from these problems for a long time. According to the Afghanistan Independent Human Rights Commission (AIHRC), more than 100 cases of murder of women were reported in the year 2019. Human rights defenders have also been the target of terrorist organizations. According to the Afghan Human Rights Defender Organization (AHRDC), a total of 17 human rights defenders have been killed from September 2020 to May 2021. COVID-19 exposed the fragile healthcare system in the country and there were no proper facilities even for testing. According to the International Organization for Migration, there were 4 million people internally displaced in Afghanistan in 2020. Even the countries bordering Afghanistan were sending the refugees back during 2019 and 2020 and were violating the principle of non-refoulement. After the fall of the government and the rise of the Taliban, these countries have sealed their borders. Freedom of speech and expression has been curtailed and women reporters have been asked to leave their jobs. Recently, the UN Human Rights Chief has expressed his concern over the rising tension in Afghanistan. He urged the international community to join hands and defend Afghanistan. Several people have lost their lives in the civil wars and presently too, mass killings have become common in Afghanistan.

World community and the Afghanistan crisis

The present crisis will not only alter the political as well as social scenario in Afghanistan but will alter world politics altogether. The already existing refugee crisis will reach its worst level. According to the United Nations High Commissioner for Refugees (UNHCR), about 82.4 million people in the world are forcibly displaced. Syria has the largest displaced population. The recent Afghan crisis may make this country the epicentre of the refugee crisis. People are running for their lives. Let us see what the world community has in its platter for the Afghan refugees:

Iran

Iran is in the process of setting up refugee camps in its country. Iran has already stated that it will send the people back, once the condition improves. According to the UN’s refugee agency, Iran already hosts more than 2 million Afghans.

Pakistan

This country plans to set up camps at its borders to prevent the refugees from entering the country and burden the whole system.

Turkey

Turkey is reluctant about admitting more refugees in its country. It is interesting to note that Turkey stands on the highest pedestal when it comes to accepting refugees but this time, it has said that it will not admit more people.

United Kingdom

The UK plans to receive 20,000 refugees in the coming future and plans to resettle about 5,000 of them in the first year of their arrival.

United States

The US is laying the whole of its focus on evacuating people. Along with it, it has requested countries like Uganda, Kosovo, North Macedonia and Albania to provide temporary refuge to the people until the condition improves.

India

India has proposed an E-emergency X-Misc Visa for all Afghans. One can easily apply for visas online. India is not a signatory to the UN Refugee Convention 1951, therefore, it has no obligations to accept the refugees.

Conclusion

In recent developments, Afghanistan has been declared as the Islamic Emirate of Afghanistan. The national flag has also been changed and a new white flag with a shahadah has been adopted. The Taliban is ruling the country and there is no democratic government in the nation. Mullah Abdul Ghani Baradar, the co-founder of Taliban, has been appointed as the President. The world community has still not recognised the Taliban as the new government and it is unlikely that they will recognise it. Some countries like China have said that they will think of recognising the rule, once the situation stabilises. Taliban has a long history of turmoil and the abrupt US army withdrawal without ensuring the safety of Afghanistan has aggravated the situation. Afghanistan has been ruined by some foreign countries and now it is the responsibility of the world community to ensure peace in the nation. The United Nations (UN) has urged its Security Council to unite for the cause of Afghanistan and the United Nations Human Rights Council (UNHRC) is planning to discuss the humanitarian crisis in Afghanistan. Amidst all this crisis, one should remember what Gandhiji said, “You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty.”

References

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Sale deed : important clauses and their execution

By

Abanti Bose

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September 14, 2021

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This article is written by Mayank Singh, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

Introduction

A sale deed is an important legal document that needs to be executed when a buyer buys the property. It means the title is transferred from seller to buyer. It consists of the property details and sets out the rights and obligations of each party. A sale deed is made on a non-judicial stamp paper. It is governed by the Registration Act 1908. These parties are also referred to as the ‘Vendor ‘ and ‘Vendee’ in legal documents. A sale deed indicates that the title of ownership has been transferred from the seller in favour of the buyer; or in simpler words, the ownership has been changed from the seller to the buyer. Section 54 of the Transfer of Property Act 1988 defines shade as the transfer of ownership of immovable property for consideration. This transfer of ownership from the seller to the buyer is done by the document called sale deed. Ownership of the properties is an important thing so drafting a sale deed must be faultless.

Important clauses in the sale deed

1. Parties in the sale deed

The sale deed must have the details of the parties. The deed should contain the name, age, address of the proper parties according to the sales agreement.

2. Description of the sales property

Description of the property is a must. For example, if I am the seller selling my 2 BHK flat, I must mention the total plot area, ID number, and exact location of the flat.

3. Sales agreement

Before making the sale deed parties need to enter into a sales agreement to settle the terms and conditions of the agreement. An advance amount is paid by the buyer.

4. Sale consideration

The amount at which the sale is made is contained in the consideration clause the price should be mentioned in both numbers and digits.

5. Payment method

Parties mutually agree in the sale deed to use the payment method like cash, net banking demand, along the amount of payment.

6. Advance payment

In buying a flat token amount is always given by the buyer that is an advance payment to close the deal and the rest of the amount is paid later. It makes the buyer forced to enter into a sale deed. The sale deed must mention the amount that is paid in advance the receipt of the amount shall be given by the seller to the buyer. The buyer can pay the advance payment in instalment as well and interest is charged on that both parties shall agree to make the instalment payment clause

7. Transfer of title clause

This was mentioned that the transfer of ownership from the seller to the buyer sets out the aim of the seller to sell the property to buy. All the rights should be shifted from buyer to seller

8. Delivery of the deed

The sale deed should be handed over to the buyer during the possession of property along with the sales agreement these are the two important documents that have to be handed over to the buyer.

9. Indemnity clause

The property of the sale shall be free from all charges like electricity bills, water bills, motor gauge any due if any charges are left, a buyer who paid the charges has the right to go over to the seller to indemnify him under this clause.

10. Liability in the case of default

If either party defaults, the party at no fault will be paid a penalty fee so that the cell does not get troubled.

11. Registration and witnesses

After the sale deed is ready, buyer and seller X it along with the two witnesses’ testimony as per the registration act 1908. It must be done within four months from the date of execution of the sale deed.

12. Right to quiet enjoyment of property clause

It means there shall be no interruption from the vendor or any third party and the vendor can peacefully enter and enjoy the property that he has purchased.

13. Reddendum clause

This clause is added by the seller even though the title is transferred, the seller has some rights like restrictions while using the property.

14. Tandem clause

This close mentions that any advancement in the property is also being sold by the seller along with the property

15. Warranty clause

This clause satisfies to Vendee that he is now the rightful owner of the property.

16. Time is of the essence clause

The most important closed today in the real estate contract is the time is essence clause. it means one party’s efficacious role within a certain time is needed. Inability leads to breach of contract; this clause mentions the delivery of the documents, termination method, closing date. This clause demands to meet the deadlines to do sales.

17. Right to call off the deed

If certain circumstances arise one can include a clause to refrain them from continuing the future obligations in the sale deed. Usually, parties call off the deed when the other party refuses to hand over the payment and the possession of the property.

18. Dispute resolution clause

This clause is made after mutual agreement to set out the process in case any dispute arises like mediation-arbitration if any party is still and satisfied it can go to court to decide the distance.

19. Miscellaneous provisions

Parties also provide some miscellaneous provisions, the sale deed these are listed below:

Governing Law: parties through the sales agreement choose the governing law that should be applicable to the sale deed and the sale deed should be enforced and executed by that governing law for example, if I am the seller selling my 2 BHK flat in Mumbai the sale deed shall be governed by the Municipal Law of Mumbai, Maharashtra.
Severability: this provision is one of the important reasons in the sale deed for any contract it says that if any part of the contract is invalid or unenforceable the other provisions remain valid.
Confidentiality: this clause restricts the disclosing of any private details or any confidential information between the parties involved in the sale deed It is important to mention the confidentiality clause when drafting the sale deed.
Breach of contract: when any party violates any of the clauses of the sale deed and terminates the sale deed, the other party can take action on that and recover the losses in the event of a breach of the contract.
Notices: during the drafting of the sale deed and agreement between the parties regarding the sale the communication plays an important role. This clause is drafted to describe the mode of communication between the parties and the frequency of the communication between the parties to the sale deed.
Amendments: when any clause needs to be added or struck out by the mutual agreement between the parties as per the terms of the contract the amendments are made. This clause addresses the amendments to be done in the sale deed.

The plan of execution of a sale deed

The first step that is required in the sale deed is to make it if spotless sale deed the drafting is done by the parties to avoid any errors.

The draft of the sale deed shall mention all the details of the parties the details of the property like identification of the property location of the property description of the property, the total area covered by the property, details of construction, facilities provided in the property, any advancement in the property, the consideration of the sale, The monetary transaction between the buyer and seller in the sale deed. The draft should also clearly specify any future obligations of the seller. Once both the parties are in agreement over the contents of the draft sale deed, the same details are taken over to the final document.

Registration of a sale deed

When the sale deed is ready, it needs to be registered in the office of the registrar of that jurisdiction. The party should be aware of the charges and the mode of payment for the same. In the registrar’s office, stamp duty and registration charges need to be paid. The buyer has the responsibility of paying these charges. The process of registration requires the presence of both parties in person. There is also a requirement for the presence of 2 witnesses to make the process legally binding. During the registration, two witnesses must mark their presence. An appointment must be marked Sub-Registrar of properties to register the sale deed.

Can a sale deed be executed by power of attorney?

The Supreme Court of India 2011 ruled that “a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property”. The order directed all the municipal bodies in the country not to register properties based on documents of power of attorney The Supreme Court, on the other hand, reinstated the legality of valid transactions carried out through General Power of Attorney.

The court held that ‘Nothing prevents affected parties from getting registered deeds of conveyance to complete their title. The said transactions may also be used to obtain specific performance or to defend possession under Section 53 A of the Transfer of Property Act, 1882’.

The states in India followed the Supreme Court order and made it illegal to register properties sold through a general power of attorney. Taken hook up the flow of Black Money that was going through in the real estate sector where titles are being manipulated.

Effect of non-payment of the sale price on the validity of sale deed

In the case, Vidyadhar v. Manikrao, (1999) 3 SCC 573, two-judge bench of Hon’ble Justice Indu Malhotra and L. Nageswara Rao, JJ held that non-payment of a part of the sale price had no effect on the validity of the sale deed. Once the title in the property has already been transferred from seller to buyer, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price in present or in future. This fact is gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.

Conclusion

When one is drafting the sale deed, it is better to draft with patience while scrutinizing all the clauses correctly because it is an important legal document. Further, it also acts as the main document for further sale by the buyer in the future as it establishes his proof of ownership of the property.

References

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Punishment for animal cruelty and laws for animal welfare in India

By

Diganth Raj Sehgal

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September 14, 2021

0

Animal_welfare_-_woman_pats_dog_(1) — Image Source: https://bit.ly/3syUk2Q

This article is written by Gyaaneshwar Joshi, a student of the Faculty of Law, Jamia Millia Islamia, New Delhi. In this article, the author discusses the relevant provisions under the Prevention of Cruelty to Animals Act, 1960 which allows for the penalties against violators.

Table of Contents

Introduction

“The greatness of a nation and its moral progress can be judged by the way its animals are treated”. – Mahatma Gandhi

A large number of cruelties are suffered by all types of animals in every corner of the world. The World Animal Protection, a global organisation, has created the Animal Protection Index (API) where a total of 50 countries receive grades according to their legislation and animal welfare policies. It is the first index of its kind that indicates the scores of various countries from A (the highest score) to G (the lowest score).

The Animal Protection Index released in 2020 placed India in the ‘C’ scoring band along with Spain, France, Germany, and Poland. Whereas, countries like the United Kingdom, Austria, Switzerland, Netherlands, Sweden, and Denmark have found a place in the ‘B’ score band. Iran rated with the weakest score ‘G’, and no country got placed in the ‘A’ scoring band.

However, India’s performance was average in Animal Protection Index 2020 but the scores imply that India’s animal welfare laws at present are quite weaker as compared to other nations and the inefficiency of the current legal provisions is the reason behind the rising incidents of animal abuse in the country.

The Prevention of Cruelty to Animal Act, 1960: a glance

The Prevention of Cruelty to Animal Act, 1960 is one of the most comprehensive laws on the subject of animal welfare in India. It is an Act of the Parliament passed on 26 December 1960 with a vision to prevent cruelties on animals.

The main objective of the Act is:

The Act prevents unnecessary pain or suffering on animals.
The Act enshrines provisions for establishing the Animal Welfare Board of India, its powers, functions, constitution, and term of the office of members of the Board.
The Act enshrines the guidelines regarding the experimentation on animals for scientific purposes and empowers a committee to make rules with regards to such experiments.
The Act restricts the exhibition and training of performing animals. Both the terms ‘exhibit’ and ‘train’ are separately defined under Section 21 of the Act.

Various forms of cruelty and their punishment

The PCA Act, 1960 provisions empower law enforcement agencies, animal welfare workers, and citizens who care for animals to take action against the culprits. As far as animal welfare laws are concerned, all acts of cruelty are covered under Section 11 of the Act. Section 11 of the PCA Act, 1960 deals with various forms of cruelties and atrocities perpetrated on both, domesticated and wild animals. This section has 16 sub-sections dealing with the different forms of cruelty, under which a person is liable for a fine of ten rupees, which may extend to fifty rupees. Whereas, in the subsequent offence, i.e. the offence committed within three years of the previous offence, shall be punishable with three months imprisonment and a minimum fine of twenty-five rupees which may extend up to one hundred rupees.

The categories of offences under Section 11 are as follows:

SECTION 11(1)(a): Causing pain, suffering, or injury to an animal.

Any person treating an animal which results in unnecessary pain, suffering, and injury to that animal. It includes acts like beating, kicking, overriding, overdriving, overloading, and torturing the animal as an offence.

SECTION 11(1)(b): Employing any unfit animal for work or labour.

Any person taking work from or has employed a sick, infirm, or wounded animal is an offence. A complaint can be filed against anyone who uses an animal suffering from any disease, infirmity, wound, or other causes which render the animal unfit for any kind of work or labour.

SECTION 11(1)(c): Administering any injurious drug or substance.

It is illegal to willfully and unreasonably administer any injurious drug or substance to any domestic or captive animal. This section also prohibits forcing an animal to take such drugs and substances. For example, using Oxytocin injection by dairymen on cows or buffaloes to increase milk production is illegal unless taken under the proper prescription of a veterinary doctor.

SECTION 11(1)(d): Carrying or transporting animals in a cruel manner.

This section forbids carrying or transporting any animal in such a manner as to subject them to pain and suffering. It applies to the transportation of animals through vehicles or walking them on foot. As per the rules mentioned under the PCA Act 1960, a lorry can carry up to six adult cattle, and a goods wagon cannot carry more than ten cattle.

SECTION 11(1)(e): Housing an animal in a place that hampers free movement.

Keeping or confining any animal in any cage or enclosure of insufficient size failing to permit the animal a reasonable opportunity for movement is an offence.

SECTION 11(1)(f): Restricting animal’s movement by using heavy chain or chord.

This section made it illegal to keep any animal chained, tethered for an unreasonable time.

SECTION 11(1)(g): Habitually chaining up of a pet dog by an owner.

If a pet or a dog owner does not exercise their pet dog or is habitually chaining up or keeping a dog in close confinement is an offence. For example, all dog owners are legally bound to take their companion dogs on a daily 30-minute walk in Germany.

SECTION 11(1)(h): Sufficient food, drink, or shelter.

It is the responsibility of the owner of any animal to provide sufficient food, drink, and shelter.

SECTION 11(1)(i): Abandoning an animal.

If a person abandons any animal, which renders that animal to suffer pain either due to starvation or thirst is an offence.

SECTION 11(1)(j): Allowing a sick/injured animal to go at large in the streets.

Suppose a person permits any animal to go at large or roam freely in the streets while that animal suffers from any contagious or infectious disease. This section also forbids a person to abandon any diseased or disabled animal to die in the streets.

SECTION 11(1)(k): Selling any animal suffering from pain.

Selling or possessing any animal suffering pain due to mutilation, starvation, thirst, overcrowding or other ill-treatment is an offence.

SECTION 11(1)(l): Mutilate or kill any animal.

This section made those activities punishable which includes mutilation or killing of any animal including stray dogs by using the method such as strychnine injections, or any cruel practices.

SECTION 11(1)(m): Animal used for entertainment purposes.

Using an animal solely for entertainment is an offence under this section. This section strictly forbids confining any animal, including tying an animal as bait in a tiger or wildlife century, to make that animal an object of prey. It completely restricts provoking any animal to fight or bait any other animal simply for entertainment purposes.

SECTION 11(1)(n): Organising or managing a place for conducting animal fights.

A person shall be held guilty for selling the land or premises for conducting animal fights. This section also prohibits a person from organising animal fights and collecting money from spectators as entry fees.

SECTION 11(1)(o): Promoting or participating in a shooting competition.

This section prohibits any kind of promotion or participation in a shooting competition that involves animals. There are some activities where animals are released from captivity for such shootings.

Most of the offences committed under Section 11 are non-cognizable, which means the offender can be arrested only after obtaining an arrest warrant from the Judicial officer. However, offences committed under Section 11 sub-section 1 clause (l), (n), (o) are classified as cognizable offences (under Section 31 of the Act), and police can arrest a culprit without any warrant. The violation of Section 12 is also a cognizable offence, which forbids activities like ‘doom dev’ or ‘phooka’ performed upon any cow or milch animal to improve lactation. It contains an imprisonment term for a maximum of two years, with a fine which may extend up to one thousand rupees.

How to file a complaint?

It is the responsibility of every citizen to protect animal rights. Any person who witnessed the cruelty against an animal can report the matter to a local police station or SPCA (Society for the Prevention of Cruelty to Animals) and seek their help in enforcing the law for punishing the offender. If the police are unresponsive, then a complainant can reach a nearby NGO like PETA (People for the Ethical Treatment of Animals), and they will assist to take a stand against animal cruelty.

Animal cruelty complaints can be directly reported to:

Local police station.
SPCA (Society for the Prevention of Cruelty to Animals).
Senior Government officials at the State or District Animal Welfare Board.
Area MLA.

A person can file an FIR against the culprit and provide police with a concise written statement and photograph of the situation (if available). A culprit can be charged under Sections 428 and 429 of the IPC, both are regarded as cognizable and bailable offences.

Section 428: Whoever commits mischief by killing, poisoning, maiming, or rendering useless any animal of the value of ten rupees or upwards shall be punishable with imprisonment of a maximum of two years with fine, or with both.
Section 429: Whoever commits mischief by killing, poisoning, maiming, or rendering useless any animal of the value of fifty rupees or upwards shall be punishable with imprisonment of a term which may extend up to five years, or with fine, or both.

Both the above provisions defined under Chapter XVII of the IPC apply only to animals with any monetary value (be it above ten rupees or fifty rupees as mentioned under Section 428 and 429). These provisions hardly attract a crime committed on stray animals because they are not household pets and do not hold any monetary value. Therefore, if any cruelty happens to a stray animal, it is very tough to apply these provisions because that animal is not purchased from a pet shop and hence does not carry a monetary value nor can be classified as someone’s property.

Several NGOs are providing access through their websites to register an online complaint of animal abuse. Any complainant can directly visit the websites of animal welfare organisations to get their assistance regarding the filing of a complaint. There are several organisations under which online complaints can be easily filed:

Authority	Link to file an online complaint	Contact Details
The Pet Nest	https://thepetnest.com/report-animal-abuse	Mob: +91 935 407 4426 Official website: https://thepetnest.com/
Society For Animal Safety, India	https://www.sasindia.org/report-a-case/	Mob: +91 909 681 0771 Official website: https://www.sasindia.org/
Sanjay Gandhi Animal Care Centre (SGACC)	http://sanjaygandhianimalcarecentre.org/complaints.html	Tel: 011-25447751/25448062 Email: [email protected] Official website: http://sanjaygandhianimalcarecentre.org/index.html

Offences and penalties

Section 11(2) of the PCA Act, 1960 makes it obligatory for animal owners to exercise due care and supervision to prevent cruelty against animals owned by them. If they failed to follow these obligations, they shall be held guilty.

Inflicting any form of cruelty on animals is an offence under section 11 of the Act. The commission of the first offence has a maximum fine of fifty rupees per animal. In the case of subsequent offence within three years is punishable for a fine of a maximum of one hundred rupees and three months of imprisonment or both. The court can order for the forfeiture of an animal subjected to cruelty, and after that, the animal is considered government property. The court can also prohibit the convicted person from having custody of any animal. This ban can be permanent or either for a fixed period and decided by the court.

Restrictions by the Indian Government to secure animal rights

There are several provisions under the PCA Act, 1960 which provide complete protection to animals against any form of cruelty but are mostly considered outdated, with low penalties. Their lack of implementation has led to an increase in the number of animal cruelty cases. The definition of cruelty is vaguely defined in India’s animal protection laws.

The writ petition of Sankalp Santosh Golatkar v. Union of India & Ors (2020) was filed in the Supreme Court to modify the penal provisions of the Prevention of Cruelty to Animals Act, 1960. This petition states that over 24,000 cases of cruelty to animals have been registered under the Act from 2012 to 2015. The petitioner has also mentioned the illegal consumption of dog meat that is mostly followed in northeast states. According to the data provided in the petition, every year around 30,000 stray and stolen dogs are brutally killed for their meat in northeastern states like Mizoram and Nagaland.

Currently, several legislations are working to keep a check on brutal treatment against animals. The Government of India has taken measurable steps to ensure better treatment of animals. In 2017, the Central Government banned various forms of entertainment using wild animals and restricted the use of animals in circuses. India became the first South Asian country to ban the use of cosmetic products on animals in 2013 and subsequently banned the import of cosmetic products tested on animals in 2014. India made impressive progress in protecting animals used in scientific research and approved them to use only under certain conditions as per Section 14 of the PCA Act.

In India, it is the fundamental duty of every citizen to have compassion for all living creatures. The Indian Constitution recognises animal rights under Article 51(A)(g) and Article 48(A), that mandate every Indian citizen to show compassion towards animals and wildlife.

Article 48A: The state shall endeavour to protect and improve the environment and safeguard the wildlife.
Article 51(A)(g): To protect and improve the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.

Legislations regarding animal welfare in India

The Prevention of Cruelty to Animals Act, 1960

With the adoption of the PCA Act, India became one of the first countries to enact a comprehensive law against animal cruelty. The Act defines the term ‘Animals’ as all species of animals (except human beings). However, the term cruelty has not been precisely defined under the Act, but roughly it means the infliction of unnecessary pain and suffering. This Act provides for the constitution of a committee to look after the various aspects of experimentation on animals, i.e. to supervise and control their use of experimentation so that animals can be saved from the sufferance of avoidable pains.

The Wildlife Protection Act, 1972

The Wildlife Protection Act, 1972 is a hallmark in the history of wildlife protection in India. This Act came into force on 9 September 1972 and consists of 60 sections and VI schedules- divided into eight chapters. The term ‘wildlife’ is defined under Section 2(37) as ‘Any animal, aquatic or land vegetation which forms part of any habitat’. The Act was implemented to ensure the protection of India’s wildlife (both territorial and aquatic) and their habitats.

As per Section 62 of the Act, States can send a list of wild animals to the Centre requesting to declare them vermin for selective slaughter. This Act empowers the Central Government to declare any wild animal (other than those specified in Schedule I and Part 11 of Schedule H) to be vermin for any area for a given period.

While the Act ensures the protection of wildlife animals, unfortunately, animals do not enjoy specific protections under the Act.

Draft Animal Welfare Act, 2011

On 11 August, 2010, the Minister of Environment and Forests assured the Lok Sabha to enact a Bill titled ‘Animal Welfare Act’ to provide steeper penalties for animal cruelty in India. Therefore, the Animal Welfare Board of India introduced a draft Bill titled ‘Animal Welfare Act, 2011’ to repeal the Prevention of Cruelty to Animal Act, 1960. The Bill was drafted to enlarge the definition of animal abuse and introduce greater and apt penalties for cruelty towards animals.

For the first offence, there is a punishment for imprisonment of up to two years and a maximum fine of twenty-five thousand rupees. In the case of a subsequent offence, the punishment shall be of a maximum of three years imprisonment and a fine which may extend to one lakh rupees. This Bill is yet to be passed by Parliament.

In 2016, the AWBI drew up a new draft, i.e. the Prevention of Cruelty to Animals (Amendment) Bill, 2016, considering the recent rise in the incidents of animal abuse and the scant punishments given under the ruling PCA Act, 1960. The AWB and several NGOs appealed to the Ministry of Environment, Forest, and Climate Change to consider this Bill in Parliament. However, the Bill has not yet been passed.

A way forward towards better development

The Prevention of Cruelty to Animals Act has not been revised since 1960. The culprits can easily get away with killing, maiming, beating a stray animal for a fine of merely fifty rupees. In almost all progressive countries, there are laws to save the animals from the infliction of unnecessary pain and suffering, or in other words, to prevent man from behaving cruelly to animals.

Different countries have adopted different ways to deal with animal abuse, which makes some of them the best countries for animals to live in. Austria is considered one of the best countries for animals that have the most robust anti-cruelty laws. The Austrian Animal Welfare Act, 2004 strictly prohibits pet owners from cropping the ears or tails of their pets, forces farmers to uncage their chickens, and forbids puppies and kittens to be showcased in pet shop windows. Similarly in the United Kingdom, the Animal Welfare (Sentencing) Bill, 2021 after receiving royal assent on 29 June 2021 has now increased the maximum imprisonment for animal cruelty from six months to five years. Also, the fine has been increased from £5,000 to £20,000.

The implementation of strict laws has made some of these countries perform better than India in the Animal Protection Index, 2020. However, India could not perform well due to some of the disgraceful incidents of animal cruelty that happened in some of the states in the past few years. Therefore, it is high time for the central government to amend the existing animal-protection laws since the old provisions have become ineffective in current times.

Some animal-friendly countries in the world

The Universal Declaration of Animal Rights was proclaimed in the UNESCO centre in Paris on 15 September 1978. The primary purpose of the declaration was to recognize that all animals are born equal and have equal rights to live.

Based on the Animal Protection Index, the top five animal-friendly countries are- Austria, New Zealand, Switzerland, United Kingdom, and Chile. However, no country at present offers full protection for animals of all kinds. Some countries are making progress in implementing strict animal welfare laws but still require that all animals live a free and happy life.

Here are some of the countries which have implemented strict animal welfare laws to ensure better protection of their animals.

Austria

Austria has the most strict laws about animal rights. The Austrian Animal Welfare Act, 2004 restricts animals to feel pain and fear. The Act states that “animals are creatures under the responsibility of humans” and all animals should be held to a value that is equal to humankind.

Switzerland

Switzerland became the first country to constitutionally recognize animals. The provision in the Constitution provides for the protection of ‘the dignity of the creature’. The Switzerland government mandates social animals such as guinea pigs, parrots, and mice to be kept at least in pairs for their well-being. It is illegal under Swiss law to stop a dog from barking and requires every pet owner to attend classes before the adoption of their pets.

Netherlands

The Animal Welfare Act of the Netherlands includes farm animals in anti-cruelty laws and duty of care provisions. The Netherlands is the first country in the world to have a political party for the animals, prioritizing the interest of all earth inhabitants with about 80 representatives at European, national, regional, and local levels.

Poland

According to Poland’s Animal Protection Act, if anyone finds an abandoned dog or cat shall be required to notify an animal shelter, fire authority or police. Poland also introduced a retirement benefits plan for service dogs and horses in which the government will cover the costs and their lifelong food and medical care after they retire.

Conclusion

The Prevention of Cruelty to Animals Act, 1960, is archaic and fails to safeguard animals because the current penalties are too weak to deter people from abusing animals. Animals used in scientific research are exempted from cruelty considerations. There is a lack of regulations regarding the rearing of farm animals, such as unregulated urban dairy systems which are growing rapidly with poor welfare standards.

Currently, India needs stronger animal-protection laws to prevent cruelties because a measly maximum fine of only fifty or one hundred rupees was inserted into the law more than a half-century ago and it desperately needs to be improved with the current times.

Therefore, the government must strengthen India’s animal-protection laws and ensure that people who abuse animals receive long-term jail, significant fines, and psychological counselling and are banned from having contact with animals.

References

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Unitary treatment of tax

By

Abanti Bose

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September 14, 2021

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This article is written by Simran Ubee, pursuing Certificate Course in Advanced Corporate Taxation from LawSikho.

Table of Contents

Introduction

The nature of companies has changed drastically over the last century. The key assets of multinationals today are their intellectual properties (IPs). Being intangible assets, they can be easily shifted around to tax havens where they can be kept untaxed for years. Microsoft did something quite similar by shifting all of its IP, worth more than a trillion, to a small factory in Puerto Rico which is a tax haven.

Under the present international taxation system, multinationals, especially the tech-giants, can evade trillions in corporate taxes by freely moving around their global profits. This has made the need for a tax system that better aligns the profits being made by the multinationals and real economic activity in states they make maximum sales. A unitary approach to international taxation can be one way in which corporations can be prevented from evading taxes and contributing more to society.

This article is about the present system of international taxation and why there is a need for an alternative taxation approach.

The traditional approach to international taxation

The root of the present international taxation system lies in the early twentieth century. The conventional brick-and-mortar businesses had started transforming into transnational corporations (TNCs), which generally operated as integrated businesses under a central command. National tax authorities had concerns that their TNCs would take advantage of the centralized decision making to shift their profits to lower-tax jurisdictions, creating a need for special rules. The League of Nations appointed a Fiscal Committee (1932) under an American lawyer; Mitchell Carroll. His report (Carroll Report) suggested two ways to tax TNCs; the arm’s-length pricing method and the unitary method (aka fractional apportionment).

Arm’s length principle

The present system of international taxation is based on the ‘Arm’s Length Pricing’ method. It does not consider any TNC as a whole. Every TNC is seen as a group of different parts with each part having its own unique taxable individuality. Thus, every subsidiary of a TNC is taxed differently based on its location. This is known as the ‘separate legal entity principle’ under the international taxation regime. Regardless of the parent company’s location, each of its subsidiaries become a ‘Permanent Establishment’ (PE) in the respective territories for the purposes of taxation.

Under the ‘arm’s length principle’, the price involved in a transaction between related parties (for instance, the parent company or its subsidiary), must be the same as it would have been had the parties been completely unrelated to each other. The method of ‘Arm’s Length Pricing’ was conceptualised between the two world wars. It was decided as a fundamental rule for evaluating all the trading between the various related parties. However, the principle goes against the economic rationale today – TNCs make far more profit by working closely and trading with each other.

Tax is a sovereign subject of every state. With the mushrooming of TNCs globally, countries have been restructuring their tax policies to attract business, resulting ultimately in a sharp decrease in corporate taxes. TNCs on the other hand undertake lengthy comprehensive studies of the taxation system in various countries before opening up any new subsidiary. A country with the potential for more tax avoidance markedly becomes a hub for routing the profits made by the TNCs in more lucrative jurisdictions. Using together the principles of separate legal entities and the ‘Arm’s length pricing’, corporations have been finding and creating new ways to avoid paying taxes on their domestic incomes.

Double Irish, Dutch Sandwich

In 2014, many of the large TNCs were found to be avoiding hundreds of billions of corporate taxes in the US by a scheme famously termed as ‘Double Irish with a Dutch Sandwich’. Under the system, one of the Irish companies would receive large royalties from a TNC’s sales in the US; the Irish taxes being dramatically low, the taxes paid by the TNC were similarly low as well. Using a loophole in the Irish laws, the TNC would then transfer its profits tax-free to another offshore company in a tax haven where it would remain untaxed for years.

Another Irish company meanwhile would be used for sales to European customers. Similar to the first company, it was being taxed at a very low rate and would subsequently send all of its profits to the first Irish company, using a Dutch company as an intermediary. The scheme was definitely convoluted and required a meticulous understanding of the respective tax systems, but if done right, there could be minimal to no tax paid by the TNC anywhere in the process. The first Irish company in the scheme would receive all the profits of the TNC and then transfer it to the Bermuda company by paying large royalties on the intellectual property.

These Irish tax loopholes were finally closed in 2015 by the Ireland government under pressure from the European Union. However, a transition period of five years was given to the TNCs, which ended in 2020. Using the ‘Double Irish, Dutch Sandwich’ method, in 2017 alone Google transferred almost 22 billion dollars through a Dutch company, which then redirected the money to Bermuda, a tax haven state. Reports also showed that by the end of 2017 the US’s most profitable companies, including Apple had appropriated almost a trillion dollars offshore to tax havens using the ‘Double Irish’ method. Alphabet, the parent company of Google finally announced in 2020 that they would stop using this tax loophole, but much damage has already been done.

The Double Irish, Dutch Sandwich is just one of the ‘base erosion and profit shifting (BEPS) corporate tax tools that were being used by the world’s most profitable multinationals to shift their profit from higher-tax jurisdictions to lower-tax ones. The Organization for Economic Co-operation and Development (OECD) has defined BEPS as multinational enterprises “exploiting gaps and mismatches” between the tax systems of different countries, costing them 100-240 billion USD of revenue annually. All of this loss, however, can be avoided by using a unitary approach to taxing multinationals.

Unitary treatment of taxation

In the simplest of terms, a unitary approach to international taxation means recognizing that a TNC’s profits accrue at the group level; not individually; they, therefore, need to be taxed on the same basis; as a group, and not individually. This is the opposite of the fundamental principle of separate legal entities under international taxation. The TNC under unitary taxation has to submit consolidated accounts of all of its subsidiaries for deciding their tax liability. The Carroll Report had reached the conclusion that the unitary taxation approach was the more superior one, but due to its complex nature and political considerations, it was decided that the ‘Arm’s length pricing’ method would be adopted.

‘Arm’s length pricing’ assumes that every company in a group is separate and independent, and therefore should be taxed as such. However, in reality, the only reason these companies are even in a group is that they make more profit in working under common ownership. This excess profit cannot be taxed because the prices charged between each company in the group is adjusted such that only the level that would be earned if they were separate and independent is taxed.

Unitary taxation has two important elements to it: combined report and formulary apportionment.

Combined report

A TNC would be required to produce consolidated accounts in every country it does its business. Along with consolidated accounts, the TNC also would need to provide details of all related entities in the particular corporate group based on the assets, sales, and employees. The advantage of access to consolidated accounts is that the local governments can see if the TNC is using internal transfers to shift their profit to offshore accounts.

Formulary apportionment

This means enabling every country to tax the global profits of TNCs, by apportioning the profits according to a formula based on assets, sales, and employees, with a global minimum effective tax rate. This would eliminate any incentive for TNCs to shift their profits around different jurisdictions and would lead to massive increases in tax revenues for the national governments.

Conclusion

The United States has been successfully using the unitary tax approach to tax the various multinational tech giants in its jurisdiction. The pressure from many other countries has also prompted the OECD to come up with a uniform system of taxation; the negotiations however have been delayed due to the present pandemic. One downside of the entire scheme may be that the tax havens, which in reality are relatively poorer states, will suffer from the new shift in global taxes. Already hit by the pandemic, this might strike a severe blow to their economies. However, considering the complex nature of the unitary taxation system and the various political interests of states involved, it may be yet another half a decade until a unilateral deal is struck.

Robert Frost, however ironically, was right in his poem ‘The Road Not Taken’. Two paths diverged into the same wood; the one chosen, made all the difference. The decision of the League of Nations in deciding upon the ‘Arm’s Length Pricing’ as the fundamental of international taxation has led to today where many of the most profitable multinationals have been abusing the different tax structures to evade trillions in corporate taxes. However, now we do have an option to change this fundamental assumption under international taxation. The group of companies in the TNCs are not in fact separate but are groups aimed at making collective profits. They should therefore be charged as such. That simply is the idea of unitary taxation.

References

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

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Need for adoption of corrective measures for proper functioning of rape laws in light of Kadir Kabir Husen v. the State of Maharashtra

By

Rachit Garg

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September 13, 2021

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Virtual rape — Image Source: https://rb.gy/temyqx

This article is written by Gitika Wadhwani, from Jagran Lakecity University, Bhopal. It is an exhaustive article that deals with the problem of rape and corrective measures to improve the future of rape laws.

Table of Contents

Introduction

One of the most growing problems when it comes to the safety of women is sexual violence against women. And when we talk about sexual violence, one category of violence which is most rapidly increasing and is quite pervasive be it any country is rape. Rape is a serious offence against women. It does not only affect a victim physically but also affects them mentally and emotionally. It is a wrong against society at large and requires serious attention. Every country has its laws governing the offence but still, there are certain lacunas due to which the number of cases constantly seem to be increasing. There is a need for change in the approach to deal with the problem and for the effective functioning of existing laws governing the offence of rape. This duty to bring change does not lie solely with the legislators, public institutions, or judiciary. The collective effort of every individual associated with the administration of justice is required.

India and its perception of rape

India has been a patriarchal society for a long time and even after several attempts, people are still following the same old beliefs when it comes to women and their status in society. People are progressing and trying to change their outlook towards women but a large section of society is not accepting those changes wholeheartedly. Whenever the incidents of rape take place people try to blame women for those happenings. They believe that the dressing sense, the extrovert behaviour, late-night working out are all these are the reasons for women being raped.

There is a large section of society that treats women as a chattel of men and finds it appropriate to treat them as per their whims. If a girl is raped the whole burden of proof lies on her to show the absence of consent. She is further put in a miserable condition by constant interrogation and media reporters which results in low esteem, loss of dignity, and mental pressure on the victim, as a result, many cases go unreported. When it comes to the knowledge of people they tend to have a negative attitude and behaviour , towards the victim. It is considered as a stigma on her and due to such socio-cultural beliefs, people are not coming up with their grievances.

Erasing the word ‘victim’ from the society

There is a need to change the perspective to progress and become more acceptable. The terminology that people use does affect the psychology of people. The words we hear and use shape our minds and lives. We all have a particular way to look at things and define them and generally, it is shaped by our society in which we grow. There are certain words that are often linked with people based on gender, sex such as a beautiful girl, brave man, etc.

People have been gender-biased for a long time and from a similar stereotypical perspective the word victim is used for a long time for women, and men are always considered the perpetrator. This gender blind approach to look at people and define their roles has resulted in a lot of problems and affected the mental and emotional health of people. The word victim resembles some loss, injury and shows a kind of helplessness and weakness. It is believed that women are victims as they are considered weak and incapable. Referring to her through such words reminds her time and again that she has been through those things and also it creates a sense of fear, low esteem, frustration among the sufferer. Due to such a view, it happens at times where there are false allegations against some men. Men are accused of false cases of rape and violence by women that are considered true by society and courts because of stereotypical mindsets. As a result, it takes years for an innocent person to prove his innocence and he continues to suffer for years.

This gender-blind way that has been used for a long time to represent things needs to be changed. The word ‘victim’ is negatively used many times to stigmatize the woman and make her realize that she has been through something bad and often considering her responsible for the same. This in turn makes the situation worse by not letting her overcome her past. Also, it is a stereotype to believe that the word victim is a gender-specific term.

An analysis of the case Kadir Kabir Husen v. the State of Maharashtra

Facts of the case

In the case of Kadir Kabir Husen v. the State of Maharashtra (2021), there was an auto-rickshaw driver who with his brother sexually assaulted a girl after giving beer and some food to her and while the incident took place there was a passerby who is the complainant in this case who was stuck at a signal on his bike when he noticed a rickshaw with black curtains and heard a girl crying. He went and inquired to the rickshaw driver who responded saying that he is having passengers. The crying sound continued so the complainant pulled the curtain and saw a man was forcing himself upon a girl. He pulled him out when he refused to come out. Meanwhile, the traffic police came and the person was apprehended. The accused was charged under Section 354, 363 and 376 of The Indian Penal Code, 1860 (IPC) and Section 8 and 12 of The Protection of Children from Sexual Offences Act, 2012 (POCSO) and he pleaded for instant bail.

The contention of the applicant

The counsel for the applicant contended that the girl was not a minor as there was no evidence to prove the same.
The applicant contended that the girl was not raped and she has consented for it and was conscious during the happenings. Also, she was into the flesh trade.
Further, they supported their argument with the medical records which stated “sexual assault with complete abortion”.

The contention of the respondent

The respondent contended that the age of the victim is 16 years and was a resident of platform No. 1, Andheri railway station.
She contended that she was in a drunken state and was forced upon her by a rickshaw driver and could not resist as she lacked the strength.

Major findings of the court

The court found certain things quite strange. When Additional Public Prosecutor was asked about the current status of the victim he stated that she still resides on Platform 1 Andheri railway station even after being sexually assaulted which is quite shocking. The investigating officer seems to be negligent of the legislations that mandate the state to ensure the protection of youth from any kind of exploitation and failed to take the girl to a rehabilitation home or take the assistance of the Juvenile Justice Board. The court, by considering all the circumstances, directed the investigating officer to take corrective measures by ensuring the necessary steps are taken concerning the victim and to have all the suspicions clear.

The future of rape laws and the corrective measures in Indian society

After the infamous Delhi gang rape of 2012, several amendments were made to the laws and provisions related to rape. Despite those changes, there are increasing cases of rape. One reason could be that laws are not implemented as effectively as they are legislated. Another reason is that India still has a long way to go to have an effective system that effectively deals with such issues.

The future of rape laws calls for a more strict approach. There is a need for corrective measures to be taken by all the functionaries of justice. The duty to ensure whether the laws are being followed or violated does not solely lie on the Judiciary but on all the other people who assist with the process. It is important from the initial stage when the FIR is filed that police and investigating officers take into account all the circumstances and ensure that in no case the remedies and protection available for the victim are ignored. The public prosecutor has a responsibility to represent the victim and be mindful of the rights of the victim. Victims should not be further left to suffer or be re-victimized by society, public authorities, or the accused.

There is a need for a gender-sensitive approach while dealing with a man or a woman and not a gender-blind approach to deal with the problem. Irrespective of gender or sex both should have an equal opportunity to present their part of the story. It is better not to pre-define that women are the victims, men are always the perpetrator or it is the women who invoke men and blame her for the entire incident. Whatever happens, efforts should be made to restore and rehabilitate the person and ensure justice. Further, it is important to set an example in society by giving adequate punishment to prevent such crimes. At the same time, the media must maintain the anonymity of the survivor.

Recommendations

Following ways can be used to prevent rape culture in the society and protect the survivor:

A change in the perspective of society is required. People should not blame victim for rape and should have an empathy and understanding outlook towards the problem.The lawyers should work pro-bono to get justice for women where victims are not in a condition to afford the expenses of the case.
The word victim should be avoided.
Shelter homes and other rehabilitation homes should be made available and the survivor should be informed about all the facilities that she can avail.
A proper investigation must be carried out in all cases.
The case should be resolved in a time-bound manner.Fast track courts set up for dealing with the cases related to rape will help in speedy and effective disposal of cases.
The victim should not be blamed.
Laws must have zero-tolerance approaches towards sexual assault.
Sex education is an important tool.
Proper medical facilities should be available for the survivor.
The media, judiciary, police officers, and prosecutors should perform their functions effectively.
Women who have been victimized should have access to free legal-aid services and economic conditions should not be a barrier in accessing justice.

Conclusion

Women are not safe outside. There is continuous exploitation of women in the form of sexual abuse which can take a more serious form of rape. Despite the continuous efforts of the legislature, the law is lacking due to improper implementation and lack of social support. People are generally stereotypical when it comes to rape and criticize women for staying out late at night, wearing short clothes, going to parties, etc. This deteriorates the condition and sometimes encourages men to believe that the duty to control does not apply to them and they are at liberty to get provoked by their sexual arousal. This mindset requires a change and a balanced approach is needed to ensure the proper functioning of laws and the safety of women. At the same time, it is the duty of the police officers, public prosecutors, investigating officers, and defence lawyers to ensure that the parties have full access to justice and not be denied the remedies and rights due to the negligence of any functionary.

References

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Defending fauna in India : SC’s perspective

By

Rachit Garg

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September 13, 2021

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supreme-court-of-india-02 — Image source - https://bit.ly/2VnRC41

This article is written by Sabaat Fatima, from HILSR, School of Law, Jamia Hamdard. This is an exhaustive article that discusses the cruelty meted out to animals and how the Judiciary has routinely protected the lives of these voiceless creatures.

Introduction

Mahatma Gandhi once said that if anyone has to find the moral progress and greatness of a nation, they can find it by judging how the people of that nation treat animals. There is no doubt that a country like India is home to various wildlife creatures. The country is highly devoted to serving its mother nature. The term ‘Fauna’, as per Roman mythology, is the name of the goddess of earth and fertility. So, Fauna represents the animal life of any particular habitat. At the initial stages, there was no direct provision for environmental protection in our Constitution.

The Indian Government in 1976 introduced the 42nd Amendment Act to the Constitution because of the rapid awareness of the environmental crisis. This amended Act introduced a direct provision for environment protection and hence Article 48-A was added to the Directive Principles of State Policy. This Article states that it is the responsibility of the State to protect and improve the wildlife of the country. Article 51A(g) places a fundamental duty on its citizens to not only protect the environment and wildlife but also have compassion for all living creatures. Cruelty towards animals is not new; there have been many instances where animals were inflicted with too much pain and agony. Human beings are regarded as ‘Homo sapiens’ and are classified as developed animals. They have indeed grown in various fields, but at what cost? Can we regard such development as an achievement, if we have lost our moral values?

India and fauna – the ones towards extinction

Asiatic Lion: In India, Asiatic lions are found in the Gir forest of the State of Gujarat. They are on the verge of getting extinct as they are being hunted and poisoned to protect domestic animals. Moreover, they fall prey to farmers who have placed electric fences to protect their cattle.
Bengal Tiger: The Bengal tiger, also known as the Royal Bengal tiger, is found in the territories of India, Bhutan, Myanmar, and Nepal. They are endangered species. Bengal tigers are hunted illegally for their skin and body parts as they are useful for Asian medication. For example, in China, tiger bones are used for treating typhoid, malaria, and other ailments. They are prone to poaching as they are the most dangerous animal in India.
Snow Leopard: Snow leopards are being hunted for their skin, bones, and organs. These are limited to India, China, Pakistan, Kazakhstan and are found in the Himalayas. The snow leopard is the national heritage of Pakistan and the State animal of Himachal Pradesh. They are prone to hunting and poaching as their beautiful fur is sold to make thick coats.
Kashmiri Red Stag (Hangul): They are found in the valleys of Kashmir and the district of Himachal Pradesh. As per the IUCN report of 2019, there are only 150 of them left. They have beautiful antlers and are prone to poaching.
Namdapha Flying Squirrel: They are found in Arunachal Pradesh of North-east India. Only one specimen has been found of them till date last they were seen in the year 1991.
Pygmy Hog: They belong to the family of pigs found in Bhutan and Assam; earlier, their presence was found in Uttar Pradesh too. Now, there are only 150 left in numbers.
Kondana Rat: They look like common rats but their habitat has been destroyed by human beings in the dry forest area of Maharashtra.

Landmark judgments by SC in protecting fauna

Naveen Raheja v. Union of India (2000)

Facts of the case

The facts of the case were related to the skinning of a tiger in a zoo in Andhra Pradesh. This case was extremely shocking as after listening to the facts the Court was stunned at how the humans are treating the voiceless animals by inflicting sheer pain and misery on them. There was no protection given to the tiger by the protector whose obligation was to secure it and take care of its prosperity.

Judgment

The Apex Court of India, hence, was of the view that it was very important to call the executive of the Central Zoo Authority to show up under the watchful eye of the court physically and to explain what steps and measures were being taken to secure and protect the tiger populace in zoos and reserved forests. The Supreme Court at that point passed proper orders in the said issue and provided important orders concerning the assurance of tigers. The Supreme Court clarified that it is important for the Central Zoo Authority to take an insight into this issue and make important strides to ensure the predicament of these voiceless animals as the situation wherein they are is very disturbing and a long way from satisfactory.

State of Bihar v. Murad Ali Baig (1988)

Facts of the case

This case dealt with the hunting of elephants. The issue raised was whether or not the hunting of elephants is legal under the provisions of Sections 447, 429, and 379 of the Indian Penal Code, 1860 and Sections 54 and 39 of the Wildlife (Protection) Act, 1972. Section 2(16) of the Wildlife (Protection) Act defines the word ‘hunting’ as killing or poisoning any wild creature or hostage animal; capturing, trapping, coursing, and goading any animal; harming, obliterating, or taking any part from the animal’s body; in the case of wild birds or reptiles, harming the eggs of such birds or reptiles or disturbing the eggs or homes of such birds or reptiles or even an attempt to do so. This case additionally dealt with Section 9 of the Wildlife (Protection) Act, which states that no individual should hunt the wild animals mentioned in Schedule I, II, III, and IV besides as given under Section 11 and Section 12 of the Wildlife (Protection) Act. A great emphasis was laid upon the provisions of Section 11 and 12 of the Act which gives the Schedule.

Schedule I of the Act mentions a list of animals including amphibians, reptiles, fishes, birds, and insects, such as the Kashmiri Stag, snow leopard, Cheetahs, elephants, crocodiles, leopard, Indian wolf, black duck, etc.
Schedule II of the Act mentions animals like dolphins, pythons, flying squirrels, bison, etc.
Schedule III of the Act mentions animals like the Himalayan black bear, wild pig, nilgai, etc.
Schedule IV covered under its scope hares, otters, swans, and a lot of other species of birds like owls, flamingoes, and cranes.

Judgment

The Supreme Court held that an elephant is an animal that cannot be hunted as it falls under the list of animals given under Schedule I. It tends to be accepted that hunting an elephant is illegal. The Court also held that the word hunting as defined under the Wildlife Protection Act, 1972 is not alike to the offence which is committed under Section 429 of the Indian Penal Code that mentions punishment for killing, poisoning, etc of elephants, camels, horses, and other animals as listed under the said section. Hence, the two offences are contrary to each other. The court also emphasized the preservation of flora and fauna.

Tarun Bharat Sangh, Alwar v. Union of India (1993)

Facts of the case

There was an illegal mining activity being practised in an area declared as a tiger reserve. The petitioner is a voluntary organization that has filed a petition in the Apex Court under Article 32 of the Indian Constitution, affirming that the State Government of Rajasthan has declared the Sariska Tiger Park as a Tiger reserve, yet there is an illegal mining activity taking place in the nearby area of the reserve. The petitioner also submitted that many notifications were released to prohibit this mining activity near that area yet the Rajasthan State Government issued licenses for mining dolomite, marble, and other materials and that such contraventions were mentioned in the notification released previously.

The Court, however, appointed a committee to observe various notifications which were issued concerning the protected area. After a keen study, the committee found out that there were 215 mines which were situated outside the area which was considered to be protected forest and 47 mines fell partly outside and partly inside the area declared to be protected forest. It further recommended that the mining operations within the area declared as protected should be stopped.

Contentions of the petitioner

The counsel on the petitioner’s side submitted that the mining operations in the areas declared as a protected forest should be stopped to maintain the orders of the Court and the report submitted by the Committee. They also argued that the license issued by the Rajasthan Government was ex facie and hence no permission was taken from the Central Government. It also argued that the continuance of such activity is violating the Court’s order, thereby causing contempt of court. The petitioner also submitted that the Government of Rajasthan is equally guilty of contempt of court because they did not take strict actions against the mine-owners.

Contentions of the respondent

On behalf of the State of Rajasthan, it was submitted that the State Government and its officers were not aware whether they granted licenses in respect to the listed mine that fell within the area declared as protected forest and that the notification released by the Forest Department showed that they did not fall within the protected forest area. It was further argued that the protected area was not known as there was no separation on the spot. Moreover, the State of Rajasthan had already down 54 mines.

Judgment

The Court observed that this matter is required to ensure the enacted laws made by the State Government for environmental protection and ecological balance of the area. The Supreme Court took notice and held that mining activity is prohibited in that area which is defined as protected. It also formed a committee headed by a retired judge to make sure that the wildlife within that sanctuary is secure. Apart from this, the mining activities that were conducted outside the protected area but within the tiger reserve can continue for four months but if no permission is taken from the Central Government within this period the activity of mining in that whole area which was declared as tiger reserve has to be stopped for good.

Animal Welfare Board of India v. A. Nagaraja & Ors (2014)

Facts of the case

Jallikattu was a traditional sport practised in the State of Tamil Nadu which involved a fight between two robust bulls. These bulls are freed in the crowd of the human participants who are expected to hold these fierce bulls and reach the finish line. Whoever among the participants reaches the finish line wins the award prize, which was sponsored by various sponsors of the festival. This practice not only involved injuries to the participants but also to the bulls, who were meted with harsh and poor treatment by the participants. Some reports were also issued concerning the violence being inflicted upon the bulls and these reports paved the way for the Animal Welfare Association.

The Animal Rights Activists decided to take a stand against the practice of Jallikattu occasion though the supporters of this event contended that it is immoral of the Animal Welfare Association and the Activists to prevent an individual from practising their tradition. The followers were also of the view that by imposing a ban on the activity they are infringing their fundamental rights which are guaranteed under Article 25 and 26 of the Constitution of India, and hence such ban was unconstitutional and unreasonable. Thus, the Animal Welfare Association filed a case in the Supreme Court asking them to impose a ban on the deadly sport.

The Supreme Court decided in favour of the followers and submitted that Jallikattu should be allowed as it is their old ritual, but certain conditions were struck down by the Supreme Court. These conditions were that the Animal Welfare Association would monitor the event and if they feel that some cruelty is meted out to the bulls, then can take strict actions as per the seriousness of the incident.

The Ministry of Environment and Forests in 2011 released a notification to the supporters of Jallikattu to stop using bulls as animal performers but the followers still practised their tradition, aided by the State Government of Tamil Nadu that passed the Tamil Nadu Regulation of Jallikattu Act to continue this horrific sport. The Supreme Court, in 2014, after getting to know of this held that the law passed by the State Government of Tamil Nadu was unreasonable and unconstitutional. It, therefore, instructed the Union Government to amend the provisions of the Prevention of Cruelty Act, 1960 and to set out guidelines stating that the bull is an animal and it should be included under this Act.

The State Government of Tamil Nadu went against the ruling of the Supreme Court in 2016 and released a notification to the organizer of the event to continue this practice. Then, on 14th January 2016, the Animal Welfare Board and PETA India decided to file a plea in the Apex Court to bring to the notice of the Supreme Court to release a stay order on the notification of the Government and impose the ban. The decree passed by the Supreme Court led to the conflict between the locals and the authorities.

Contentions of the petitioners

The petitioners’ side argued that Jallikattu causes harm to the bulls. The practice involved applying some powder on the bulls’ private parts, which caused a burning sensation and thereby incited the bulls. The bulls are also chained, beaten and subjected to other brutal practices causing them extreme trauma. As per the studies, bulls adopt fighting behaviour when they feel threatened; this clearly shows the behaviour of bulls during Jallikattu when they run away from people due to fear and pain. Bulls are abused, pricked, poked, harassed and attacked by numerous people. They have their tails gripped and warped and their eyes and noses filled with irritating chemicals.

Contentions of the respondents

The supporters of this practice carried out a large protest to ensure that the Supreme Court respects their views and comprehends that they are infringing their fundamental right. During the protest against the order of the Supreme Court, many protesters were detained by the Police Authorities. The Governor of Tamil Nadu filed a review petition stating that the ban was unreasonable and unconstitutional.

Judgment

The Supreme Court maintained its stand and refused to uplift the ban on the practice. The State Government then passed an enactment claiming to exempt and remove Jallikattu from the provisions of the Prevention of Cruelty Act, 1960 which got the assent of the Centre. The legal fight over the Jallikattu practice is still going on and remains unresolved to date, with the subject of its lawfulness springing up each time it is taken up for consultation. Notwithstanding, these legal challenges which were brought upon this traditional sport the game is as yet drilled and played with sheer energy by the locals and natives of Tamil Nadu. Though the Supreme Court has imposed a ban on it, the event is still organized lavishly and the coordinators spend huge amounts on it. The matter has even alluded to the Constitutional Bench and a lot of issues were raised as to whether or not such tradition of the individuals belonging to Tamil Nadu can be secured under Article 29(1) of the Constitution of India.

Are the judgments a good precedent?

After having a keen study of the above judgments we can say that the Indian judiciary and the lawmakers have highly prioritized the protection of animals, as they are voiceless living creatures who are meted out with pain and agony. So, we should support animal rights the same way we support human rights. Indeed, the Animal Welfare Association has not yet reached its top point but the judiciary is repeatedly struggling to uphold the rights of the animals, who go through a lot of vulnerability at the hands of humans. Animal protection is endorsed and supported by the judiciary as we have to safeguard and protect animals from abusive treatment, oppression, and confinement. At present, several disputes concerning animal rights have arisen and it is the job of the judiciary to emphasize the rights of animals. Animal rights can be considered as the voice given to animals to seek cooperation from human beings.

The right to have a life of dignity is guaranteed under Article 21 of the Indian Constitution. However, this right is not just confined to humans, but also includes animals. The Prevention of Cruelty to Animal Rights Act, 1960, the Wildlife Protection Act, 1972, and the provisions of the Constitution of India are not enough to deal with the protection of animal rights, and thus there is an urgent need for the enactment of new laws. Nevertheless, the Indian judiciary has handled every case of animal rights tremendously by filling the gaps that existed between the laws of animal welfare and has, again and again, protected the rights of animals.

The collective responsibility of every citizen in protecting the fauna.

World Wildlife Day is celebrated every year on March 3. The United Nations General Assembly celebrates this day by creating awareness about global wildlife. The theme for 2021 was Forests and Livelihoods: Sustaining People and Planet. PM Narendra Modi tweeted by saluting everyone who was involved in the protection of wildlife. He also brought into notice the rise in the population of lions, tigers, and leopards in India. He also urged everyone to do as much as they can for the protection of animals and their habitats. Moreover, Prakash Javadekar, the Union Minister for Environment, Forests, and Climate Change posted a video of a cheetah that was extinct in 1952 and said that the present government is striving to reintroduce Cheetah and that this Big Cat will be a reality soon.

The protection of animal welfare is not only the responsibility of the Government but of the citizens as well. The more the individuals come up, the more will it be possible to take care of these species. Now, the question is how can the citizens play a role in protecting the fauna in India? The answer to this has been discussed as follows:

Learn about how important it is to save wildlife and educate the same to your near and dear ones.
National Parks and Sanctuaries should be established in large numbers to protect the natural habitat of wild animals.
Illegal cutting of the trees for our use should be banned as it destroys the natural habitat.

Take part in volunteering in your local national wildlife park so that you can help in protecting the place for the animals.
Even if you are visiting a zoo do not litter around and do not disturb or tease any animal.
Cell phones and other electronic devices are made from a mineral whose mines are placed in the habitat of the gorilla, so try to recycle.
Never purchase products from markets that are indulged in threatening wildlife. For instance, fur products are made from the fur of tigers, polar bears, crocodiles, sea otters, etc.
If you object to the way things are handled by the government then speak up. You can start a campaign for creating awareness.
We must plant trees near our surroundings. Save water at your homes so that animals living near water can have a better chance of survival.
In 2014, Prakash Javadker authorized the cutting of 325 hectares of forest for building a dam and a railway line through the Kanha and Pench Tiger Reserves. If the Government authorizes the cutting of trees then for every acre of forest, an equal area of land should be used to plant saplings of trees to make up for the loss.

Conclusion

India has a rich legacy and is gifted with assets that are valuable and endemic to the country, and which makes it a biodiversity-rich country. Thus, it is the responsibility of everybody to secure this rich asset and keep a balanced climate. Wildlife security and protection is a huge errand in India with the developing concerns of illegal exchange and abuse of wildlife resources. This target cannot be accomplished until and unless all branches of the government authority, residents, and local individuals living in and around the secured territories, non-profit and non-governmental associations, policemen, and the overall population cooperate towards the fulfillment of this objective. Some laws are sanctioned and are set up as of now, notwithstanding, the provisions of these laws are outdated and should be updated at the earliest, to guarantee that animals are not exposed to abuse on account of individuals who claim to be more reasonable and brilliant than them.

There is a need for powerful techniques and solutions for the protection of wildlife in India since the protection of wildlife is of great importance at this point. The state governments and the central government are needed to cooperate and carry out every important law and preservation strategy to secure the wildlife and prevent unlawful hunting and exchange of these endangered species and natural life as a whole. It is high time India realizes that humans are not the only inhabitants of this planet.

References

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Enforcing competition laws in the UK : a critical overview

By

Diva Rai

-

September 13, 2021

0

lianos-brussels_banner-web — Image source - https://bit.ly/2XdlfFQ

This article is written by Udita Prakash, a student at UPES, Dehradun. This article talks about the competition law in the UK and how it plays an important role in business.

Table of Contents

Introduction

Competition law is a legislative body that aims to prevent market distortions caused by anti-competitive practices in part of the business. In the United States, Canada, and the European Union, competition law is also known as antitrust law. The purpose of competition law is to ensure a fair market for consumers and producers by prohibiting unethical practices designed to gain greater market share than can be achieved by honest competition. The impact of anti-competitive practices includes not only the difficulty of smaller companies entering or succeeding in the market, but also rising consumer prices, declining services, and reduced innovation.

Objectives of competition law

Competition law exists to ensure that businesses operate in open and competitive markets. The law aims to promote healthy competition and fair trading. Businesses need to be aware of the main rules to avoid breaking the law or becoming a victim of others’ anti-competitive practices. There are serious repercussions and heavy penalties for infringements.

The objective of Competition Law are as follows:

To avoid practices that adversely affect competition, that is other companies that may lose profits and close their businesses because they are not doing business in an open competition.
Encourage and maintain competition in the market. Without fair competition, society cannot get the best products and prices.
Protect consumer interests as the consumers must pay a fair price for the right product.

Two major laws protecting objectives of competition law in the UK.

The Competition Act, 1998

According to the rules of the Competition Act, 1998 companies cannot:

Keep a fixed price, this is an agreement between participants on the same side of the market who buy or sell a product, service, or commodity only at a fixed price. This will prevent other companies from competing. It also prevents the public from benefiting from free competition.
Limited production.
Agree with companies in the same market to limit production to reduce competition.
Open up the market.
Companies cannot share the market with their competitors. In other words, they cannot agree on who will bid on which contract. For example, we take this contract, you accept the offer, instead of competing fairly.
Competition law applies to all agreements that limit competition. This generally affects large companies, but the same applies to small businesses.

The Enterprise Act, 2002

The Enterprise Act, 2002 law prevents the creation of commercial business cartels. A cartel is an association of manufacturers or suppliers whose purpose is to keep prices high and limit competition. Within the cartel, companies do not compete with each other. Doing so will increase the gross profit by not lowering prices with competitive pricing. These laws give the Competitive Markets Authority (CMA) the legal authority to investigate the violations and take action accordingly. Proceedings can range from large fines to the dismissal of businesses, directors, and even imprisonment. Therefore, non-compliance with these laws can have major and serious consequences. It is imperative that companies, large and small, be aware of competition law and its implications, regardless of which market they operate in.

How does competition law affect businesses in the UK

Competition law has a positive impact on companies by establishing a competitive business culture and enabling them to improve and develop to remain strong competitors in this area. Competition law also ensures that organizations with a dominant position in the market cannot abuse this position to harm other companies. Competition law encourages companies to improve while having a positive impact on consumers who have a wide range of services to choose from for market competition. Therefore, companies need to continue to comply with competition law to ensure that the market is dynamic and valuable.

Anti-competitive behavior includes agreements that are deliberately aimed at reducing competition in the market for the benefit of the parties involved. For example, the contracts may include price-fixing, market share, production control, and collusion. If the company is not involved in these anti-competitive agreements, it will be at a disadvantage. Therefore, it is of utmost importance for regulators to enforce competition law to prevent organizations from engaging in such anti-competitive behavior. Moreover, if an organization has a dominant position in the market, it can use its position to harm all other business competitors. For example, in June 2017, the European Commission investigated Google for abuse of its position in the market after Google placed products such as Google Shopping on top search engines that were at a disadvantage to other shopping services.

How to protect a business from anti-competitive behaviour

To comply with competition laws and protect the company’s reputation, it is important to know the behavior of other companies around us and whether they are anti-competitive or not. The main anti-competitive business behaviors are:

Invalid contracts that show evidence of sharing sensitive commercial and market information.
Horizontal or vertical agreements appear to have anti-competitive purposes, such as sharing information about future prices so that relevant organizations can adjust prices.
Unconditional cartel.
Abuse of dominant position in the market. With predatory prices and an agreement not to serve other companies in the region, there is evidence of an exclusive agreement that may involve companies linked to retailers.

Competition law compliance within a business

If an organization does not comply with competition laws and engages in anti-competitive behavior, it can have the following catastrophic consequences:

Economic impact, as if a company is found guilty of violating competition law, it can be fined up to 10% of the company’s global sales.
Directors and management convicted of violating competition law may face criminal charges and be disqualified from their position as directors for up to 15 years.
A guilty company is also at risk of action by a third party, such as a customer or business partner, affected by the guilty company’s anti-competitive behavior. As they may face fines and definitely a hurt reputation.

Therefore, compliance with competition law is a wise decision. To comply, the management team must run the program and communicate compliance with competition law throughout the organization. This allows us to establish a culture of competition law compliance and directly confirm with the employees that anti-competitive behavior must not be compromised. This will later create a system of trust. If an employee is found to be against competition law, the management team will be notified. This can effectively reduce the risk of anti-competitive practices in the workplace.

Conclusion

To conclude, I would say that enforcement of competition law in the UK has a greater significance, as the UK is one of the developed countries and needs these regulations to have smooth conduct in business and fair competition in the market.

References

https://www.mondaq.com/uk/eu-law-regulatory/56902/the-private-enforcement-of-competition-law

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The rising trend of animal abuse on social media : a policy analysis

By

Abanti Bose

-

September 13, 2021

0

This article is written by Indrasish Majumder.

Table of Contents

Introduction

This epithet was added for titillation. For some strange cause, it drew you to this post, and you’re still reading it. Isn’t it true that people nowadays do anything for views? This paper, interestingly, addresses the deleterious repercussions of this very trend. In the last ten years with the advent of social media, the inherent essence of “shock value” to promote content on the internet has increased dramatically. It has affected the social media paradigm in terms of the need for extreme attention among its users. This, and other social networking distortions, have had a significant effect on the rise in people exploiting animals for attention (and for monetary gains, often). It can range from a Facebook video of someone tossing a dog off a cliff to a YouTube influencer beating and spitting on her dog for not abiding by the persona she expects her to put on when in public. Few of these videos incite indignation while some of them are entertaining. Some also have a niche audience that loves reading and watching instances of animal cruelty daily and some people are completely unaware that they are committing animal cruelty when indulging in such an action domineered by their lust for attention.

The increase in motivation to commit irrational actions of unspeakable cruelty among people against animals, for social media influence is discussed in this article, as is the need for legislation prohibiting animal cruelty to evolve and regulate social networking sites.

Case studies from around the world

In May, a teen from Alabama, United States, uploaded on Facebook a video showing himself tossing the 7-month-old dog of his neighbour from a great height into a shallow grove, while saying “This is what happens to stray dogs that follow me.” Despite being charged with egregious torture, the support he got from those with whom he posted the video was startling, with people claiming that it was only “a puppy” and contending “dogs die every day”. Another instance is that of a Korean Youtuber beating and biting his puppy, the video of which despite being reported in 2017 is still online and the perpetrator has not been apprehended.

During a youtube stream, a Youtuber known as Sseungnyangie bit and struck his puppy several times.

The desire to show off in front of a crowd may lead to peculiar attempts for attention and recognition, which could result in blatant harassment videos appearing in your stream more frequently than you’d like. The overused term “any publicity is good publicity” applies in this situation, where individuals can be motivated solely by the desire to be heard by many, which now is possible with slapping a dog and the press of a button. In the 21st century the phrase “to go viral” holds equal importance to your resume as does your school and college grades.

Local cases of cruelty against animals on the internet

Another very obvious way to reach a million people instantly is the display of bravado, masochism, vanity and narcissism on social media. One does not need to look further than Ulhasnagar, Maharashtra, where this July, a man caught a snake and repeatedly, on camera, thrashed it to the ground even after it was dead.

Image: A screen capture of the perpetrator holding by its tail the snake and abusing it.

One may claim that this occurred on or off-camera, but the reality that it occurred in front of a camera and was posted later on by the perpetrator demonstrates the presence of a motivation to demonstrate dominion over anyone or anything. One of the basic five manipulative characteristics is a show of narcissism. McCain et al. found that “grandiose narcissism” was directly related to social media in a study promulgated in an issue of the American Psychological Association. This just goes to show that an increase in animal cruelty, particularly for purposes of exhibition online, has the potential to attract a larger audience and actors.

Social media prohibitions and regulations in India

The purpose of this article is not to make a point or to justify something; rather, it is to start a conversation. Animal rights and animal cruelty policies/laws on social media are inadequate around the world. Despite being called out for his inhumane actions, the Korean Youtuber Sseungnyangie was not prosecuted because there were no established laws. Youtuber Brooke Houts, who uses her dog in funny videos on her stream, inadvertently posted footage of her strapping, kicking, and attempting to spit on her dog because he wasn’t acting the way she wanted him to on camera. After the police completed their investigation, the authorities chose not to prosecute her.

In terms of social media regulations and prohibitions in India, there have been some discussions about restricting TikTok the video-sharing app due to its large adolescent audience base and the possibility for geo-tagging to expose them to traffickers. The nation is no stranger to the consequences of new technologies and social media outlets. TikTok, on the other hand, highlights numerous instances of cruelty against animals and illegal animal battles, the majority of which are overlooked. People geotagging locations and displaying their pit-bulls when calling to the public for engagement in the barbaric practice can be simply searched up by typing in ‘#dogfight.’

Facebook conveniently overlooked tentatively 150 illegal dogfighting sites with over 2000 messages. Matches were declared and graphical material was shared. Lady Freethinker, an animal rights organisation, has presented the site with the findings of a three-month study, claiming to have found 2,053 videos in which animals were intentionally abused for amusement or were seen to be in extreme psychological trauma, physical discomfort, or dead.

The videos, which were shared across nearly 150 platforms and received 1.2 billion views, were found to be in breach of YouTube’s community standards, according to the charity. “YouTube needs to do a better job of tracking and deleting all videos that violate its terms and conditions, alerting local law enforcement to an illegal content, and keeping channels responsible for their conduct with suspensions and terminations,” Lady Freethinker owner and director Nina Jackel said.

According to the charity, the report turned up footage of animal fighting, animals being devoured alive, and being hunted using inhumane methods. It also discovered six YouTube channels with 17 videos of “fake” or “falsified” animal rescue missions with 41.7 million views. The contentious videos depict creatures such as cats and dogs being put in artificially created “dangerous” conditions in the wilderness, such as near predators, alligators and snakes, for instance, only to be “saved” just in time by a person.

YouTube removed 185 of the 2,053 videos found in Lady Freethinker’s study between April and July 2020, contributing to just 136.5 million out of 1.2 billion views. The organisation plans to start a petition demanding that YouTube delete all videos that violate its community standards and take concrete measures to properly track and remove videos that promote animal cruelty. YouTube said it had requested all of the inquiry’s information and that any material that violated its rules would be deleted. “YouTube’s community guidelines forbid any violent or gory material designed to shock or disgust viewers, including the needless infliction of harm on animals,” a YouTube spokesperson confirmed. We delete videos and comments flagged by our group that violate those policies regularly, and in many cases, we terminate the accounts of users who break our rules.”

How to identify and report online animal cruelty?

The following section of the paper shall enumerate the steps to file a complaint of animal cruelty and detail the entire process that takes place after a complaint of animal cruelty is lodged.

First, find out who in your area, county, or state is in charge of the investigation and implementing anti-cruelty laws against animals, your local “humane society” for instance, “animal control department”, “taxpayer-funded rescue group”, or “police precinct”. If you’re having trouble locating the appropriate organisation, try and connect with your local police station, shelter, or animal control service for the appropriate directions.

How to communicate cruelty to the authorities?

Until filing an animal cruelty complaint, try to collect the following information:

To provide to police departments and law enforcement, a succinct, written, accurate report of your learnings, including estimated time and dates wherever plausible.
Photographs of the scene, the animals involved, and the immediate environment. Take care not to endanger yourself! Entering another man’s property without their authorization is not advisable, and be cautious around unknown animals that are scared or distressed.
Furnish the contact details of other individuals who have direct information about the unsafe environment concerning animals to the law enforcement, if possible
While one can submit an anonymous statement, sharing your contact details is advisable. When there are reliable witnesses able to back up the report, better, and, if required, appear in court, the following steps increase the chances of the perpetrator’s conviction.
Keep track of who you spoke with, what you spoke with them, copies of any records you furnished to law enforcement or animal services, and the substance and result of your conversation. Make a friendly follow-up call to ask about the status of the inquiry if you do not hear back from the officer appointed to your complaint within a reasonable amount of time.

Animal cruelty : how to spot it

When on one hand an aggressive, passive, or afraid animal may seem to be a sufferer of violence, it is impossible to discern whether an animal has been exploited exclusively based on his/her actions. To decide whether or not the animal requires assistance, it is best to inspect the animal and its surroundings, as well.

Reporting cruelty on the internet

If you see cruelty portrayed online, you can report the site or photos in question by following these steps:

By visiting www.whois.net and searching “whois” on the respective website, therein you can get the basic information.
Inquire with the site’s “ISP (internet service provider)” about the content you find objectionable.
If you have evidence that the website in question is showing or supporting illegal acts, you can contact one or more of the following organisations and notify them of the circumstances.
Regional law enforcers and, if the animal is believed to be in imminent danger, the alleged offender’s regional FBI branch (“local” in this instance simply implies the region from where the domain originates) —the address of the registrant would be provided to you by “whois” search.
Your neighbourhood shelter for animals or “humane society”, that has the authority to enforce municipal “animal welfare laws”.
Since animal cruelty often results in unhealthy or unsanitary conditions for humans, the “local city/county Health Department/Board of Health” is a good place to start.
A complaint can be lodged before “The Internet Crime Complaint Center (IC3)” but only if what you’ve witnessed involves money (i.e one person trading, purchasing or selling, offering an illegal service)
Regional and national media organisations may facilitate rapid disciplinary actions by using their influence to draw people’s attention to an animal cruelty case.

What happens after you register a complaint with the IC3?

Your report ID and password, as well as a connection to a region on “the IC3” websites wherein one can access the information provided by you and furnish any ancillary information, will be emailed to you by IC3.
IC3 will thoroughly check the report and assign the same to a relevant federal, state, regional, or international enforcement agency after receiving it.
Any report submitted is forwarded to one or more criminal justice or regulatory bodies with authority over the case. The report could then be entrusted to an investigator. Your case may or may not be reviewed by IC3.

How does the law treat animal cruelty on the internet : a study of us jurisprudence

In the US, the Internet is primarily regulated by federal law due to the potential of data communications to cross state lines. It is important to improve federal legislation on Internet animal cruelty. Only a few federal laws expressly discuss the problem at the moment:

The Crush Act (Public Law 106-152) makes it illegal to display inhumane acts and sexual exploitation of animals for interstate commerce. Offenders could face up to five years in jail or a substantial fine if charged. Before this statute takes effect, two conditions must be met: 1) There must be real violence, and 2) the concerned site must plan to market the photographs beyond state borders. Implying, under this legislation, a webpage can lawfully exhibit images showing animal cruelty or sexual exploitation as long as it does not charge viewers for viewing or market the photos in any other way. In 2005, a federal district court in Virginia handed down the first sentence under this act.

“The Animal Fighting Prohibition Compliance Act (P.L. 110-27”) enhances law enforcement’s potential to tackle animal abuse by making interstate trade, exports and imports associated with animal combat practice, including commerce of cockfighting firearms, a criminal offence. Perpetrators of this federal statute face up to three years in jail and a fine of up to $250,000 for each infringement.

“The Computer-Assisted Remote Hunting Act (H.R. 2711/S. 2422”), initiated by “Rep. Brad Sherman (D-CA) and Sen. Sheldon Whitehouse”, is a proposed federal bill (D-RI). It aims to make it illegal to intentionally make a “computer-assisted remote hunt” open (using a computer or any other device, software or pieces of equipment for purposes of administering the discharge or aiming of a weapon to hunt and harm).

Laws against animal cruelty in India

Gandhi once said “the greatness of a nation is judged by the way it treats its animals” long before animal activism became a global movement and animal laws were enacted in India in their present form. Yet, 74 years down the line, in India, it is not uncommon to see crassly mutilated bulls carrying carts full of massive weights while being beaten continuously if they resist. People hurling stones at animals on the streets for amusement, and, not to mention, all the ‘taming’ contests, battles, and cart competitions in which animals such as cows, bulls and hens are treated like toys. The irony is in a world characterised by development (rational and technological) and globalisation people are increasingly losing out on their ethics and morality, not only towards one another but also these helpless creatures.

Many laws have been enacted by the legislature to combat animal cruelty, the most notable of which is “the Prevention of Cruelty Animals Act, 1960”, “Wildlife Conservation Act, 1972,” enacted to safeguard flora and fauna. However, the saga of internet cruelty towards animals appears to be only increasing. The following section of the paper shall discuss the laws on animal cruelty in India and the loophole that exists within it, fomenting the ground for an ever-rising trend of cruelty towards animals on social media.

The Animal Cruelty Prevention Act of 1960

According to the “Prevention of Cruelty to Animals Act of 1960”, the following are some examples of animal abuse :

(a) Beating, punching, tormenting, and inflicting excessive harm and suffering on any pets are all prohibited under Section 11(1)(a).

(b) Deploying any animal that is unfit to be working because of its age or an illness, and then forcing it to labour;

(c) Deliberately and unjustifiably prescribing any harmful medication or drug;

(d) Transporting or bringing in or upon any automobile in a way that causes it excessive pain and distress;

(e) Trapping/constraining any animal in a cage or container that is not large enough in height, length, or width to allow the pet to move;

(f) Keeping any animal confined or tied for an excessive period;

(g) When the owner, forgets to walk and exercise his/her pet ordinarily chained and housed within confines;

(h) Being the owner of any pet fail to provide sustenance, water, or housing;

(I) Being the owner, keeps the dog constantly chained or within close confines;

(j) Abandons the animal in any circumstance likely to cause it suffering in manner of physical e.g. pain, thirst or starvation.

(k) Sells or has in his custody any animal that is in distress as a result of castration, malnutrition, starvation, congestion, or other unhealthy treatment without a reasonable cause.

(l) Castrates or murders any animal (such as stray dogs) in an inhumane manner e.g. injecting strychnine into the heart;

(m) For entertainment purposes only, constrains or contains certain species (including binding an animal as a lure for any predator as a part of an experiment) Provoking animals to fight or be baited by another animal.

(n) Organises, holds, uses, or manages any site for animal fighting or trying to bait any animal, or allows or provides any venue to use it for such practices ;

(o) Participates in games of shooting match in which upon being freed from confinement animals are shot.

Cruelty to animals : a crime punishable by law

When an animal is abused or subjected to violence in any of the ways specified by “the Prevention of Cruelty Animals Act, 1960”, the perpetrator has to pay a fine of up to Rs 50, and if it is a subsequent or a consequential offence performed within 3 years of the first, the person has to pay a fine of not less than Rs 25 but up to Rs 100, or with imprisonment for a period which can extend to 3 months. If the criminal owns a vehicle, it will be seized if he or she commits a second offence, and the individual will be barred from owning animals for the rest of their lives.

Wildlife Protection Act,1972

The legislation is ostensibly for the protection of wild animals and birds, entailing provisions to protect their rights and become a voice for the voiceless in the process. It prohibits sacrificing animals, with Section 39 of the Wildlife Protection Act criminalising any cruelty to animals and punishing violators under Section 51 of the act. It also prohibits the caging of any bird. If anyone wants to hold a legal feathered pet, they must comply fully with “Section 11 of the Prevention of Cruelty to Animals Act, 1956”. Police powers: “Section 50 of the Wildlife Protection Act, 1972” approves a cop to arrest any individual without a warrant if an instance of cruelty against the animal is proved.

A citizen needs to be aware of the law before filing a complaint. For example, a donkey should be loaded with only 35 kgs of weight at one time; the permissible loading capacity of a truck is 4 buffaloes or 40 sheep/goats. Anything over and above it is technically illegal under the law. One needs to learn to make a distinction between cognizable and non-cognizable offences outlined in the PCA act 1960. “Section 43 of the Criminal Procedure Code” empowers every citizen the right to perform a ‘citizen’s arrest’ i.e the right to arrest a person who has committed in their presence a ‘cognizable’ offence, an offence for which the offender can be arrested without a warrant

Cognizable offences under PCA Act 1962 include the following:

Under “Section 12 of the PCA Act, 1962”, Transducing oxytocin into cows/milch animals to increase milk production capability – which is harmful to the animal’s wellbeing – or allowing such a procedure to be conducted on the animal he/she ‘owns’ is a criminal offence. This can, however, be one of the most common tactics employed by local legal and illegal dairy farmers across the nation.
Under “Section 11(1)(l)”, castrating or killing any animal, namely stray dogs, through overly barbaric practises such as poisoning.
Under “Section 11(1)(n)” Organizing, maintaining, or utilising any venue for animal fighting/baiting in exchange for cash.
Under “Section 11(1)(o)” promoting or participating in any shooting game or match in which animals are rescued from captivity for shooting/killing.

Policy suggestions to report cases of internet animal abuse

In terms of reducing instances of barbarism towards animals the government has an imperative power, that is, if the penalties for such offences can be made more severe, the general public will want to do better and will not savagely kill innocent animals. As a result of the need to update the old legislation, “the Prevention of Cruelty to Animals Act” was updated and renamed “Indian Animal Welfare Act in 2011” and recently it has been proposed by the Modi government that the punishments prescribed under Section 11 of the PCA be increased by 120 per cent. Despite such a vast list of regulations, the push can only come when people understand and appreciate the right of all living creatures to bodily entitlement.

Another suggestion for improving the system is to create and develop “the Society for the Prevention of Cruelty to Animals”, a non-governmental organisation that can work separately from the state. There is also a need to guarantee that the State Animal Welfare Board functions properly, given the fact that many states lack such a committee, and where one does exist, it is inactive.

Additionally, as the legislations and its ancillary provisions mentioned above typify, the judiciary in India is yet to incorporate provisions on internet cruelty against animals. The author, while stressing the importance of incorporating such a provision in the current animal welfare legislation, in the conclusion section of this paper shall enumerate the steps one can take upon seeing a disturbing image on social media on animal abuse to report and prevent the same in an extra-judicial manner. When you come across a troubling picture that appears to depict animal cruelty, you should:

Instantly download the photos and gather as much information as possible about the individual that posted the picture, including the poster’s username, the entire article that was shared with the photos, and any remarks that were uploaded with the photographs. Just use screenshots if you can’t download the photos because they contain essential data. Be as truthful and accurate as possible when describing the animal crime in your complaint. Give exact dates, times, places, and, if applicable, photographic documentation (while remembering to keep a photocopy with yourself). You can also make note of all the officials you deal with so that even if they refuse to listen, you can escalate to the next tier of the hierarchy and seek justice for the animal(s) you’re advocating for. Obtaining a vet’s certificate for the animal in question will also serve as good documentation and backup. The physical state of the animal, outward manifestations of animal brutality, cruelty during their training and exercise, accommodation (size of cages), overpopulation, the form of travel, sanitation and hygiene should all be considered when disclosing an instance of animal abuse.
DO NOT request that the photographs be removed from the website. “Most people who aren’t in law enforcement are surprised to hear that keeping such offensive material up is the best course of action in the short term,” Scott Heiser of the ALDF (Animal Legal Defence Fund) said in a comment. However, law enforcement agencies will need access to the photographs as evidence, so being silent in the short term will benefit one in the long run in convicting the perpetrator.
Don’t comment on the picture or the poster’s profile, and don’t share the message. This could give them the impression that you want to expose them to criminal justice machinery, and you don’t want to jeopardise the inquiry. For example, there was so much criticism after veterinarian Kristen Lindsey posted a picture on Facebook gloating about killing a cat called Tiger with a crossbow that she had to delete her account. In the long term, this hurts the prosecution because investigators had a hard time finding facts.

After that, you’ll be able to proceed with the case to the police.

Take copies of the evidence you’ve gathered to the police station from the area from where the picture/video was released. If this isn’t an option, take it to the nearest police station. One can also contact the local state “SPCA (Society for Prevention of Cruelty to Animals)/Animal Welfare Organisations”. Though an NGO cannot enforce the law as an organisation, they can connect you with an animal rights activist who can file lawsuits and bring awareness to certain issues through legal or media-based involvement. Animal rescue agencies and animal clinics may be called to help the distressed animal. Either way, be it a police station or an NGO, they’ll almost certainly ask you to submit a document, and this is where things get a little technical.

Include a specific request in the report that:

An official submits a detailed retention request to the host website. This will aid in the preservation of facts.
The department is conducting a thorough investigation into the crimes depicted in the photos you found.
You are aware that you might be called to testify.

Your job is effectively completed with the steps mentioned above, but the police’s work is just beginning: they’ll work on obtaining a warrant if they think the images indicate a crime in progress. As the case review progresses, be sure to demonstrate your commitment to helping the investigators. Your ability to help with the case is crucial to redressing the injustices that have been done to animals. Last but not least, be careful. “People are always shocked by the length of time it takes to conduct an investigation,” Heiser said. “It will take some time. Perseverance, on the other hand, equals a high-quality prosecution, which is what wins these cases.”

Article 51 A (g) of the Indian Constitution mandates a fundamental obligation of compassion for all living beings on every Indian citizen. But, from conducting pointless experiments on animals in skincare products labs to slaughtering one animal in front of another in an illicit abattoir, from having cockfights to boiling alive monitor lizards to produce oil from their skins, humanity does it all and does it ruthlessly. It is up to all of us who are conscious and educated to put our conveniences aside for the moment and become the voice and conscience for these deaf, flummoxed animals as they fight the all-powerful man in a desperate, helpless struggle. What makes cruelty to animals fundamentally unforgivable and immoral, when compared to human cruelty? Humans can still complain when they are treated cruelly; they have a mouth to lift an alert and hands to strike back. Unfortunately, animals lack such alternatives, leaving them vulnerable in the face of the brutality humans inflict on them, whether for their amusement, profit or to satisfy their masochistic urges!

Fyodor Dostoevsky once said that “no animal could ever be as cruel as a man, so artfully, so artistically cruel.” One would agree to it as Advocate Anjali Sharma concludes, “Perhaps humans are the worst animals ever born on this planet” “I don’t believe in the concept of hell, but if I did, I think it would be filled with humans who are cruel to animals”- Gary Larson.

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