Challenges posed by the COVID-19 pandemic in the virtual justice delivery system

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September 10, 2021

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This article is written by Surbhi Jindal, a law student at Dr B.R. Ambedkar National Law University, Sonipat, Haryana. The article attempts to discuss the challenges posed by the COVID-19 pandemic in the virtual justice delivery system.

Introduction

“Justice delayed is justice denied.”

Have you ever heard this phrase? I am sure you must have. Before the COVID-19 pandemic arrived, India already had a lot of pending cases in judicial records. People were undoubtedly stressed and wondered when they would get justice. But whatever the case may be, still something was done to deliver justice, even if gradually.

But the situation worsened when this COVID pandemic arrived, and it posed a challenge to the Indian judicial system in its initial phase. Courts were shut down, and we had to adapt at a faster pace to this digital realm. Therefore Indian courts adopted this new standard of digital hearings in COVID times. Though it brought a sense of relief for protecting oneself from the disease, it certainly posed challenges to the hon’ble judges, advocates, and clients.

Earlier, virtual courts were present only for a few cases like remand of prisoners where the movement was restricted. However, the pandemic forced the whole justice system to shift to a virtual setting so that the basic necessity of a civilised society is not threatened.

This article attempts to discuss the problems faced by the Indian courts in the virtual scenario. It will also try to highlight the opportunities and challenges faced in virtual courts and how virtual courts can solve the problem of pending cases.The article will also discuss the hardships faced by the lawyers during the pandemic while offering their services. There has remained an ambiguity in the concept of a court being a service or a place. This article will clear the concept by providing various provisions as highlighted in our various statutes.

The E-courts project was drawn on the National e-governance plan and has been in existence in India since 2007. How are e-courts different from virtual courts, and what are the advantages and disadvantages of e-courts? This article attempts to put a way forward to enhance the scope of virtual courts and how they can be beneficial in the long run.

Court : a service or a place

The pandemic forced us to shift to virtual courts. After that, a debate arose over whether the court is a service or a place? This question arose because if the court is a service, then continuing with the virtual realm is not a problem in the long run, and justice can be served through this medium. But if it is a place, virtual courts are not ideal and hence cannot deliver solutions for the long run.

Critics argued that a court is a place and not a service, while supporters of virtual court asserted that a court is a service and not a place. Now to answer this debate, we have to look upon the court’s definition as given in various statutes, if any.

The problem arose when neither the Civil and Criminal Procedure Code nor the General Clauses Act, 1897, defined the court. But the legal glossary of the legislative department defines the court. The legislative department is under the Ministry of Law and Justice, and it establishes the court as a place where justice is administered.

The Indian Evidence Act, 1872 defines a court under Section 3 that includes all the judges, magistrates, and all persons except the arbitrators, who are legally authorized to take evidence. In the Indian Penal Code, 1860, Section 20 defines the ‘Court of justice’ as a judge or body of judges assigned by the law to act judicially to administer justice.

The US federal judiciary has defined the court as a government entity authorized to resolve legal disputes. On the other hand, Black’s law dictionary defines a court as a government body consisting of more judges to adjudicate disputes or administer justice.

From the definitions presented above, it is clarified that the court has different meanings. But essentially, they point out two common elements that answer our debate of whether the court is a service or a place. The two elements are as follows:

Element 1: Courts are government entities composed of one or more judges.

Element 2: Courts deal with the administration of justice.

Therefore, courts are more of a service as compared to a place. Also, the concept of the virtual court is not new, but it has been highlighted recently in the wake of the COVID pandemic. Hence, virtual courts are fully capable of delivering justice as a service, and they do not necessarily need a place to administer justice.

Virtual courts : challenges, opportunities and the way ahead

Virtual courts are the courts where objections and other documents like vakalatnama, affidavits, and other written submissions can be filed electronically. The arguments are heard virtually through videoconferencing/teleconferencing, and evidence is submitted digitally, and cases are adjudicated by the judges either by presiding at physical courtrooms or any other place. The parties to the issue need to be present virtually at the time of the hearing. This means that the virtual courts’ hearings are synchronous.

Virtual courts are the way to transform the physical process of documentation and hearings digitally from start to finish. It brings us opportunities as well as challenges. Challenges can be turned into opportunities if requisite and necessary steps are taken. Similarly, opportunities can be turned into a challenge if we fail to identify and give necessary weightage to those.

Let us have a look at the opportunities and challenges in a virtual court system. After that, we will also discuss how the virtual court system can enhance its scope.

Challenges in a virtual court system

According to Rajya Sabha’s One Hundred-Third Report on Functioning Of Virtual Courts/ Court Proceedings Through Video Conferencing (Interim Report), a few challenges and opportunities were reported while adopting this new normal of virtual courts. It also explained why it could not be permanently replaced with regular courts.

Indeed, the importance of physical courts cannot be denied. Also, physical courts cannot be replaced with virtual courts ultimately because physical courts allow the administration of justice on the basic principle of open court as enshrined in the Indian Constitution.

The report was presented by the Department-related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice. The Committee considered the recommendations and observations from the Secretaries of the Department of Justice and Department of Legal Affairs and Secretary-General of the Hon’ble Supreme Court, Delhi High Court Bar Association, and representatives of the Bar Council of India, and Delhi District Courts Bar Association. The observations are summarized here as below:

Digital divide

It was brought to the notice of the Committee that many advocates and litigants, especially those living in the rural areas, lack the basic infrastructural facilities and high speed of network connectivity which is generally necessary for the virtual hearing of cases.

In this kind of situation digital divide makes justice unaffordable and inaccessible for a large number of people.

The Committee has provided three dimensions to the concept of the digital divide. Three dimensions are as follows:

Access divide: It includes access to equipment and infrastructure.
Connectivity divide: It provides access to the high-speed internet connection required during virtual hearings.
Skill divide: It consists of the skills and knowledge needed to use digital platforms.

Technological competence

The Committee was informed that most advocates do not have sound knowledge of information and communication technology. They showed their concern that these advocates will be unfairly at a disadvantage from the advocates who have sound knowledge of computers and have access to high-speed network connectivity.

Open court principle

Some experts opine that virtual courts go against the fundamental principle laid down in the Constitution of India. Virtual courts threaten the constitutionality of court proceedings and undermine the basic structure of law, i.e., the rule of law.

They further added that virtual courts are not at par with the open court principle under Article 145(4) of the Constitution of India, and Section 327 of the Code of Criminal Procedure, 1973, and Section 153B of the Code of Civil Procedure, 1908.

From time to time, the Honorable Supreme Court has reiterated the importance of the open court principle. However, it also observed that live streaming of court proceedings is an extension of the open court principle. It promotes transparency and reinforces the true faith in the judiciary by the public.

Issues on data breach and data security

There is a considerable concern relating to the issue of cyber security in India. They are of the view that virtual courts can compromise the privacy and confidentiality of data. Also, Indian courts take assistance from third-party apps like Vidyo, Cisco, and Jitsi, which poses a threat to data security. India does not yet have stringent laws that could ensure the protection of our data. While the internet has proved to be a boon to us in the pandemic, it has also been a bane in terms of compromising the data.

Opportunities in the virtual justice delivery system

Following are the opportunities offered by the virtual justice delivery system. These are as follows:

Virtual courts are more accessible, affordable, and time-friendly. They provide greater access to justice. The costs of both the litigant and lawyer are saved due to the factors like no travel etc. The traditional courts are accessible to a few and involve a lot of time and costs of the parties and lawyers.
Around 30 million cases are pending in Indian judiciary records. If some of the cases are transferred according to specific needs, it will also help reduce the long-pending backlog of cases.
Virtual courts should work on promoting the principle of distributive justice. That can work only if the court services are affordable to all the sections of society. The digital divide and lack of knowledge of technology should not become the hurdle. Digital justice should be accessible to all.
Virtual courts promote flexibility in a lawyer’s life. A lawyer can argue more than one case a day while sitting in any corner of the world.
Virtual courts promote a safer environment. They extend help to witnesses, women, children and especially-abled, those who find traveling to courts traumatic and difficult.
There are specific categories of cases where final hearings and appeals are not necessary. Hence, those cases can be disposed of easily through virtual courts. It will cut down the unnecessary litigation costs and will provide spacious courtrooms with fewer crowds. That becomes even necessary in pandemic times where social distancing is the rule.
Virtual courts will usher in time management. Justice can be delivered faster with fewer resources.

Ways to enhance the scope of the virtual court system

After analyzing the key challenges and opportunities in the virtual court system, we can conclude that the virtual court system is necessary for the present and future eras. If our economy wants to see justice done right, virtual courts are the solution.

Talking about the challenges we discussed, then we have to overcome them. Our virtual justice delivery system can enhance its scope by taking various measures. Some of the steps are discussed as follows:

Government should provide an alternate system where advocates can access the technology and participate in the judicial system.
The scope of virtual courts needs to be extended, and it should be seen as a positive step. Mindset plays an essential role in the adoption of the new things that arise in our environment.
Legal and professional ethics need to be kept in mind. Take the situation wherein Juhi Chawla a film actress filed a case before Delhi High Court. When the proceedings were going on, a voice was heard where a man was singing the songs of Juhi Chawla’s film in the virtual proceedings. The integrity of the court should not be compromised and should be dealt with diligence.

The problem of pendency of cases to be dealt with in virtual courts

The e-committee of the honourable Supreme Court has been functioning since the year 2005. Though the panel of e-committee acknowledged the shortcomings/challenges of virtual courts, it also said that these courts could bring in considerable advancement over the existing system. It has made two excellent recommendations, but to my dismay, those are not being followed.

The first recommendation by the e-committee was to adopt the detailed standard operating procedures of filing documents like petitions, affidavits, etc., electronically. It was recommended because it would eliminate the need for lawyers and litigants to travel to the courts. As a result, it would save a lot of travel costs and space in the courts. It would prove to be beneficial to the environment because on average India requires 12,500 tonnes of paper, equal to the destruction of 3 lakh trees for its court work.
The second recommendation made was to adopt the new normal of virtual hearings for a long time. Even if this pandemic goes, still virtual hearings should be continued for the faster disposal of services. Virtual courts have been there in the past cases as well but as an exception. The COVID-19 surge led to the need to conduct virtual hearings.

Between 2006 to 2017, there have been on average 4.7 lakhs pending cases a year. In the year 2020, there were 51 lakh pending cases. Now, If we go by this data, we can imagine over five crore cases by the end of the year 2022.

It is suggested that the courts should at least start with the virtual hearings and start disposing of cases. Even after the COVID-19 pandemic, virtual courts can undoubtedly reduce the backlog of cases and prove beneficial to both the public and the Indian judiciary.

But it all depends upon the litigators and lawyers to adapt to this new normal. They have to understand that this will prove to be beneficial in the long run. A lot of time will be saved, and there won’t be overcrowding in the courts. Cases will be disposed of at a faster pace, and justice won’t get halted. And probably the phrase used in the beginning, “Justice delayed is Justice Denied,” will somewhere diminish.

The Indian judiciary should take into consideration these recommendations positively.

Legal and constitutional principles embodied in virtual courts

Our Indian Constitution embodies some legal and constitutional principles in correspondence with the virtual courts in real and virtual aspects. The codes are defined here as follows:

Article 21 of the Indian Constitution enshrines the fact that the purpose of the judiciary is not only to deliver justice but fundamentally to reduce the longevity of the proceedings of cases. Virtual courts must be seen as a means to achieve the milestone of reducing pending cases and not merely as adopting technological and advanced digitalization in pandemic times.
Article 14 of the Indian Constitution calls for equality and non-discrimination in the territory of India. Technology can accelerate the process of accessing justice while sitting in any corner of the world. Time and costs are reduced, and the litigants don’t have to bear high fees to get justice.
The Indian Constitution calls for a free and fair judicial process. Since documents will be submitted electronically, no tampering of records could take place.
While adopting virtual courts, the principle of natural justice must be adhered to in the judicial hearing. The focus of natural justice says that every party has the right to be heard.

These are some of the principles that need to be looked upon while discussing the virtual courts’ related aspects.

Concept of e-courts project

The e-committee of the Honorable Supreme Court submitted the ‘National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005. Based on this plan, the e-courts project was launched. The primary purpose behind this is to bring technological advancements in the field of working courts. It seeks to provide the designated services to the lawyers, litigants, and judiciary. These are being implemented as a part of the National e-Governance Plan. The Ministry of Law and Justice funds the project.

Recently, while considering the COVID-19 pandemic, the Honorable Supreme Court of India exercised its power under Article 142 and directed all the country’s courts to use video conferencing for judicial proceedings.

The e-courts project was divided into two phases:

Phase-I

The phase-I started in the year 2007. This phase was executed between 2007 and 2015. Its main aim was to bring the technological revolution to the judiciary. Courts were provided with facilities like computers, working internet connection via LAN (Local Area Network), and required hardware and software essential for the working of the court system.

Also, the judges were provided laptops with a proper internet connection, digital signatures were introduced, and the district court websites were made functional. It helped citizens in checking the status of their cases online.

Phase-2

The phase-2 was enacted with the help and coordination of the e-committee, National Informatics Center (NIC), the Department of Justice, and the Ministry of Finance. The computerization system was incorporated in the offices of the Delhi State Legal Services Authority, National Judicial Academy, State Judicial Academy, and Taluka Legal Services Committee. This phase was executed between the years 2015 and 2020.

Case Information Software has also been created as a common platform for uploading court data, including past cases. The facility of video conferencing in courts and jails are on their final stage.

There are various mobile applications made available for both the district and taluka courts and judicial officers. Mobile applications include eCourt services for district and Taluka courts and JustIS for judicial officers. With the implementation of phase 2, citizens can file their cases while sitting at home, checking real-time case status from websites like e-Filing. They can also make court fee payments via the ePay facility. The end of phase-2 seeks to discontinue manual registers and introduce the cloud-based system for court-related work.

Objectives of the e-Courts projects

The following are the objectives of the e-Courts project:

It aims to provide time-bound citizen-centric services.
It seeks to develop, install, and implement decision support systems in the courts.
It aims to provide transparency to the stakeholders.
It also seeks to enhance judicial productivity and make the justice delivery system more accessible, predictable, transparent, and reliable.

Also, it is pertinent to note that e-Courts are not virtual courts. Therefore, we need to understand the meaning of e-Courts, their advantages, and their challenges. We will also look at how e-Courts are different from virtual courts.

What are e-Courts

E-Courts are electronic courts where all the law matters are adjudicated in the presence of a qualified judge. They are undoubtedly different from the computerized court. In these courts, the litigants can file their complaints electronically, view their case status online, pay the fee and fines online.

What are the advantages of e-Court

Following are the advantages of the e-Courts:

E-Courts are accessible and affordable to all sections of society. They ensure that justice is served to the community.
The litigation process moves at a faster rate.
E-Court experience is personalized and private. It is in opposition to the theatrics that involves mainly a public-speech-based system.
With the help of e-Courts, the judiciary system in India can overcome the challenges, including long-pending cases. It can make the justice delivery mechanism transparent and cost-efficient.
The E-Court system provides flexibility, and data can be shared among various departments easily since everything will be integrated under one system.

Challenges faced by the e-Courts system

Following are the challenges faced by the e-Courts:

Non-competent and non-equipped paralegal staff in terms of maintaining e-court records.
With the digital economy moving at a faster rate, cyber security is becoming a huge concern.
Sometimes, litigators are seen having a lack of confidence in the e-Court system.
The process of filing complaints online is riddled with endless complications. Also, few sections of people lack access and knowledge to work in the e-filing process; therefore, it poses a problem.
These can prove to be cost-extensive as setting up e-courts require adequate funds and deployment of new-age technology.
Electricity connection and lack of sufficient infrastructure is another concern that will remain the biggest challenge in the e-courts project. Though it can be implemented in cities, most talukas and villages will face internet issues.

How are e-Courts different from virtual courts

Virtual courts are aimed at eliminating the presence of litigants or lawyers in the court of law. The adjudication takes place online. The objection and other documents are filed electronically, submissions are heard through video conferencing or teleconferencing, and witnesses give testimony virtually through the platform. It is upon them to either attend the case while sitting in the courtroom or from any place.

On the other hand, e-Courts are online courts. These are an advanced version of virtual courts. The most fundamental difference between the two is that in virtual courts hearings are synchronous, i.e., parties have to present virtually at the time of the hearing. In e-courts, hearings are asynchronous, i.e., parties don’t have to be present simultaneously. E-courts have been working since 2005 in India. But the concept of virtual courts arrived with the pandemic when social distancing had to be maintained, and the justice delivery system could not be put on a stay.

Hardships faced by advocates

Advocates are one of those who are most affected by the pandemic. While the courts go online, some of them face an issue in not having proper equipment like laptops, computers, and high-speed internet connectivity usually required in the virtual court setup.

Some of them are not tech-savvy, which worsens the situation more and puts them at a disadvantaged situation compared to the advocates who have sound knowledge of using tech. These problems affect the employment of these advocates and cause stress. Due to the lack of technology and equipment, how can the advocates participate in the justice system?

They are not given proper training; they have little or no access to primary digital media, and the advocates can ensure justice to their clients if they are themselves at a disadvantage. Why should justice and people suffer between the digital pendulum?

Conclusion

The Indian Constitution embodies the principle concept of access to justice in the rule of law. It cannot be denied to the general public, and justice should be accessible equally to all sections of society. Virtual courts are the way forward to survive the pandemic situation and get ourselves ready for the future.

After having all the arguments in favour and against virtual courts, it would not be wrong to say that opportunities outweigh the challenges if we take all the necessary steps to make our virtual court system a better service. The piling up of files, travel costs borne by the litigants and lawyers can be reduced and it can usher in the fastest justice delivery system.

Proper training can overcome the difficulties faced by lawyers. Everyone has to adapt to this new normal of going digital. So, how can we overcome the challenges in the digitalised world? We can hold ourselves together to overcome the challenges. Technology only shows direction and support but the ultimate step lies in our hands. The situation is similar to that of a small kid who struggles to walk on the floor for the first time, but he has to walk overcoming the struggles.

References

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Lalit Kumar Jain v. Union of India : an analysis

By

Oishika Banerji

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September 10, 2021

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This article has been written by Abhilekh Tiwari pursuing the Certificate Course in National Company Law Tribunal (NCLT) Litigation and Shreya Mishra pursing Diploma in Global Corporate Practices from LawSikho.

Table of Contents

Introduction

Insolvency and Bankruptcy Code, 2016 (hereafter referred to as “Code”) was enacted in 2016 and is in its developing phase. With the landmark judgements like Swiss Ribbons, Bhushan Steel, Essar Steel, etc. have paved the way to give clarity on various aspects of the Code. In the same way, the Hon’ble Supreme Court through its latest judgement gave a new perspective to the Code. It highlighted the issue of insolvency of Personal Guarantors in Lalit Kumar Jain vs. Union of India & Ors. vide Order dated 21.05.2021. Before going ahead with the case, let’s first understand who is a Personal Guarantor? Section 5(22) of the Code defines – “Personal Guarantor.” It means an individual who is the surety in a contract of guarantee to a corporate debtor.

Personal guarantors for long were not included within the ambit of proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) until the recent judgement of Lalit Kumar Jain v. Union of India that dealt with the validity of impugned notification dated 15.11.2019. The notification was issued under Section 1(3) of the IBC which allows for certain provisions to come into effect when the Central Government issues the notification. The present article analyses the provisions in question in the case and argument of both the parties. The main issues that have been addressed in the case were pertaining to the liability of personal guarantors post approval of resolution plan and the extent of liability of personal guarantors to the corporate debtors.

Background

The main crux of the case is the notification dated 15.09.2019 issued by the Government of India. The notification talks about Part III of the Code which broadly states the enforcement of certain provisions relating to the Personal Guarantor. The petitioners provided bank and financial institutions with guarantees in their capacities as directors, promoters, chairman and managing directors of the firms, and the guarantees have been invoked and procedures against the companies with which they are affiliated are pending. The cases that are still outstanding, at various phases such as insolvency filing, resolution plan, etc. Many demand notices were sent to petitioners after the notification was published, suggesting insolvency proceedings under the Code, and recovery actions commenced after the invocation of guarantees under Part-III of the Code. The Petitioners claimed that the power of the Government under Section 1(3) of the Code could not be used to limit the Code’s provisions to Personal Guarantors of corporate debtors. The challenged notification made Sections 2(e), 78 (except for the fresh start process), and Sections 79, 94-187 (both inclusive); Section 239(2)(g), (h) & (i); Section 239(2)(m) to (zc); Section 239 (2) (zn) to (zs) and Section 249.

The Ministry of Corporate Affairs (MCA) on 15.11.2019 issued a notification (Notification) regarding the implementation of certain provisions of IBC regarding liabilities of personal guarantors. The same was later challenged by the Insolvency and Bankruptcy Board of India (IBBI). Multiple petitions were filed before the Supreme Courts, out of which many were referred back to the respective High Courts except for the instant case of Lalit Kumar Jain v. Union of India which took the lead.

It was common at various instances that promoters and directors of the companies used to act as a guarantor to the banks for the companies. In the present case, after the notification was published, demand notices were served to the petitioners who later approached the Supreme Court, challenging the validity of the notification.

Provisions involved

– Section 1(3) of IBC states that the Insolvency and Bankruptcy Code, 2016 shall come into effect as when the Central Government puts a notification in the Official Gazette. The provisions also mention that different provisions can come into effect at different commencement dates.

– Section 60(2) states that while a corporate insolvency resolution process or liquidation is pending, an application for insolvency or bankruptcy can be filed against the personal guarantors.

– Section 243 of the IBC states about repeal of the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 and about the cases in which these erstwhile acts will be applicable.

– Section 128 of the Indian Contracts Act, 1872 states about the surety’s liability being co-extensive with that of the debtor unless the agreement between the parties states otherwise.

– Section 134 of the Indian Contracts Act, 1872 states that surety is discharged if the debtor is released under the agreement between the creditor and the debtor.

– Section 135 of the Indian Contracts Act, 1872 states that surety shall be discharged of its liability if the creditors agrees to give time, or agrees not to sue, or compounds with the debtor unless surety has assented to the agreement.

Question of law

What is the liability of personal guarantors post-approval of a resolution plan?
Validity of the notification dated 15.11.2019 issued by the Government
What is the extent of liability of personal guarantors to the corporate debtors?

Contentions of the parties

Petitioners

The powers exercised by the Central Government are ultra vires

Section 1(3) of the IBC states that the provisions under the code will come into force as when implemented by the central government. It is a conditional legislation in which only the executive is allowed to implement laws. The law was made by the legislature and was complete in itself and hence no delegation was required at the part of the executive. Petitioners contended that the central government has exceeded its authority and have made changes to the provisions of Part III of the IBC. While making this submission, Petitioners relied on the case of Delhi Laws Act, 1912, In re v. Part ‘C’ States (Laws) Act, 1950 and other similar judgements. In the case of the Delhi Laws Act, the Central Government was given power to repeal the previous laws which were ultra vires. Certain parts of Delhi Laws Act, the Ajmer-Mewar Act and Part C States laws Act were in question and later the first two acts were declared ultra vires.

The notification does not differentiate between financial and operational creditors

Petitioners relied on Swiss Ribbons Pvt. Ltd. v. Union of India wherein the constitutional validity of different provisions of IBC was dealt with and the Supreme Court held the entire IBC to be constitutionally valid. The Petitioners contended that there is a difference between the nature of loan agreements signed by financial creditors and contracts of goods and services by operational creditors. Treating both classes of creditors equally will be disregard the differentiation and would treat the different class equally and hence would be against the distinction created by the parliament.

The central government ought to bring Section 243 into effect.

Petitioner contended that insolvency proceedings against an individual are initiated under Presidency Towns’ Insolvency Act 1909 and Provincial Insolvency Act 1920 and to repeal this act, Section 243 of IBC should have been brought to the effect. Hence the notification has been released with a non-application of mind.

The liability of the personal guarantor is co-extensive with that of the corporate debtor.

Petitioners relied on the case of Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta and stated that post-approval of the resolution plan, all the claims are extinguished against the corporate debtor and since the guarantor has a co-extensive liability to the corporate debtor, the liabilities of guarantor also gets extinguished. The case of Committee of Creditors of Essar Steel India v. Satish Kumar Gupta dealt majorly with Section 29A of IBC and also stated that under Section 31(1) of the IBC if the resolution plan is passed then it would be binding on the guarantors and all other stakeholders.

Respondents

The legislative intent was to treat personal guarantors differently

Respondents contended that the legislature had the intent to treat personal guarantors differently from proprietorship and partnership firms. It was due to this reason that three classes of debtors were introduced in the 2018 amendment in (Section 2(e), 2(f) and 2(g)) which can act as a personal guarantor to the corporate debtor.

The 2018 amendment to Section 60(2) permits insolvency proceedings against personal guarantors

It was further contended that Section 60 of IBC was also amended in 2018 and words included were “corporate guarantor or personal guarantor as the case may be.” Hence, it can be reasonably inferred that even personal guarantors can be subjected to an insolvency process. If acknowledgement to this amendment is not given then the personal guarantor would remain outside the purview of IBC. The amendment to Section 60(2) is to enable the dispute resolution of insolvency and bankruptcy through the same forum.

Stage-wise implementation of IBC is valid

Relying on the case of Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., Respondent contended that it has been established in the catena of decisions that segmented implementation of the laws is valid. Furthermore, Section 1(3) ought to be interpreted in a way to implement the objectives of the code. Therefore, considering the objective of the IBC, the notification is valid. In the case Basant Kumar Sarkar v. Eagle, the appellants were workmen of the respondents and were entitled for certain medical benefits but due to the notification issued by the Central Government under Section 1(3) of Employee State Insurance Act by which some more provisions were brought into force by which the employees were no more eligible for certain medical benefits. The Supreme Court held the notification valid and stated that Section 1(3) does not illustrate delegated legislation but a conditional legislation.

The liability of personal guarantors is coextensive, joint and several

Respondents stated that liability of the personal guarantor can be joint and several or coextensive depending upon the agreement between the parties. Therefore, if the debt is not paid off completely, the liability of personal guarantors cannot be absolved from its liability. In the case of Maharashtra State Electricity Board Bombay v. Official Liquidator, High Court, Ernakulum & Anr., it was stated that the rights of creditors exist in the stage of liquidation and bankruptcy as well. In this case, as per the tender of the company a bank guarantee of 50,000 was offered and the bank took certain goods as securities.

The Supreme Court stated that liquidation will not affect the bank guarantee and it is certain that the liability of surety is coextensive with that of the principal debtor but the surety is not absolved if the discharge is due to operation of law. Hence, with reference to Section 135 of the Indian Contracts Act, 1872 (Contract Act), mere approval of a resolution plan which might secure discharge of some liability, do not absolve the personal guarantor. This was also upheld in the case of State Bank of India v. V. Ramakrishnan & Ors . that particularly dealt with applicability of moratorium to personal guarantors. The Supreme Court stated that Section 14 of the IBC does not mention the applicability of moratorium to personal guarantors.

What was held by the Apex Court?

Hon’ble Supreme Court held the notification to be valid. It was stated by the Supreme Court that the notification is not excessive legislation as there is no compulsive effect in the IBC for its application. There is an intrinsic connection between corporate debtors and personal guarantees. Hence power exercised under Aection 1(3) of the IBC is not ultra vires.

If the loss of security of a corporate debtor is due to any involuntary act then the personal guarantor will not be absolved of its liability. The guarantee can be realised under Section 128 of the Contract Act as discharge has not occurred under Section 134 of the Contract Act.

Hon’ble Supreme Court held that passing of resolution plan will not ipso facto discharge the personal guarantee. The discharge of liability of the borrower has occurred by the operation of law which is an involuntary process and hence will not absolve personal guarantee of its liability if it arose out of an independent contractor. The extent of liability for a personal guarantee would depend on the agreement between the borrower and guarantor.

The notification in question is valid. Further, the approval of the resolution plan is related to the corporate debtor and will not discharge the liabilities of the personal guarantor to the corporate debtor.

The Supreme Court stated certain reasons as to why the forum for adjudication of insolvency-related matters should be common. The NCLT, which is the adjudicating authority, would be able to acknowledge the entire issue as a whole. NCLT would have the knowledge of the assets of the corporate debtor which would help in making apt resolution plans and also using personal guarantee in realising the debt.

Analysis

In my opinion, though this judgement has opened a new pathway under the Code but in practicality it can be challenging in the initial stage as in many cases where the Insolvency proceedings are initiated against the Personal Guarantors of the Corporate Debtor, either the Resolution Plan has already been approved by NCLT or is approved by the Committee of Creditors and is pending before NCLT for its approval. In that case, it is difficult to start the entire Insolvency process afresh and moreover, the object of the Code states that Insolvency Process is a time bound process and shall be completed within the stipulated time.

Secondly, the case clearly states that the Personal Guarantor is not ipso facto discharged from its liabilities on approval of the Resolution Plan. It is equally binding on every Creditor, Personal Guarantor or Stakeholder. The same is also reiterated in the Contract Act, 1872 that “the liability of the surety is co-extensive with that that of principle debtor”. Further, as per Section 140 of the Contract Act, 1872 Personal Guarantor cannot avail the subrogation rights after the approval of the Resolution Plan.

The present judgement can give restless nights to the chairman of various companies and will bring a sigh of relief to various banks. Previously, banks were unable to proceed against the personal guarantors of various companies who were majorly chairpersons, directors or promoters of the companies. One such example can be observed in the resolution of Bhushan Steel and Power, wherein the promoters have given guaranties of about 24,550 crores, however, the banks could not proceed against them simultaneously as the company was undergoing an insolvency resolution process. It was a required step and this upholding of the notification in this judgement is a welcome step in reducing the non-performing assets and in furtherance of the objectives of the IBC.

Conclusion

Finally, it was declared by the Supreme Court that the notification is not ultra vires as it was not excessive legislation and further held that stage-wise implementation of the IBC is valid. Petitioners stated that liability of the personal guarantor is coextensive with that of principal borrower, however, the liability is not merely co-extensive but also joint and hence passing of the resolution plan cannot absolve the personal guarantor entirely. It can be inferred from Section 60(2) of the IBC that personal guarantors are within the scope of liquidation or bankruptcy. The notification was held valid and all of the writ petitions in this matter were dismissed.

References

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Inherent jurisdiction in light of the case of NB v. MI

By

Rachit Garg

-

September 10, 2021

0

This article is written by Vanya Verma from O.P. Jindal Global University. This article covers the case analysis of NB v. MI in detail covering facts issues and judgements of the case focussing upon inherent jurisdiction highlighted in the case.

Table of Contents

Introduction

In the case of NB v. MI (2021) an application for a declaration of nonrecognition of Muslim marriage and a petition for nullity was brought before the High Court. In June 2013, the parties got married in Pakistan under Sharia law. Using two expert assessments, the applicant attempted to show that she lacked the mental ability to consent to marriage at the time. The court had to assess her capacity before deciding whether to issue a decree of non-recognition or to alternatively annul the marriage.

The applications were denied by the High Court because the petitioner had the capacity to agree at the relevant time, according to the facts of the case. As a result, the marriage was lawful under English law at the time of its inception. Even if he had come to a different view, Mr Justice Mostyn made it plain that the Court would not have made a declaration under its inherent jurisdiction because he was barred by statute.

Background of the case

On June 1, 2013, NB (“W”) and MI (“H”) married in Pakistan under Sharia law. Neither party disputed the validity of the marriage in Pakistan, which was a huge event that included the exchange of vows in front of some 500 people.
Apart from the two weeks following the wedding, the parties had spent very little time together. They had never lived together and were irreversibly separated.
When W’s family put pressure on her to reconcile with H, high levels of tension were created. In April 2018, W travelled from England to see him, but the parties had agreed that the marriage was finished, according to W. H was now working in Dubai, and it was widely assumed that he intended to remarry, though W was unaware of any attempts to divorce her.
W’s lawyers had attempted to serve H by mail and email, but he had not responded. Mostyn J was satisfied that H had been served but had chosen not to engage in the proceedings.
W had been in a serious car accident eighteen years prior to the marriage when she was just six years old. She experienced a “catastrophic brain injury,” which had a significant influence on her mental health as well as her cognitive performance.
W settled her damages claim for a large sum which was overseen by a deputy appointed by the Court of Protection as she lacked the capacity to manage her property and financial affairs.
Throughout the deputyship, the deputy obtained capacity reports and evaluations in order to keep the court informed about W’s capacity. Dr. Kinch’s report from February 2014 (“the First Report”) and Dr. Michael Barnes’ report from 2016 were among them (“the Second Report”).
W had grown more independent and was now competent to manage her property and finances, therefore the deputyship was terminated in 2019. Dr. Simon Prangnell’s examination (“the Third Report”) indicated that W had gained capacity in all areas of life examined, including the ability to marry and have sexual intercourse.
Only the First Report, out of the three capability assessments, determined that W was capable of marrying in 2013.
The applicant married respondent I in June 2013. Two experts, in assessments in 2012 and 2016, considered the applicant did not have the capacity to marry in 2013.

The application

In September 2020, W issued an application for a declaration of non-recognition of the marriage, pursuant to the inherent jurisdiction of the High Court. W made a subsequent petition for nullity in November 2020.

Issues before the Court

The court had to decide whether W had the mental capacity to consent to her marriage to H and, if she didn’t, whether the marriage should be recognised by the court or annulled alternatively. Mostyn J asked:

Whether W lacks the ability to consent to the marriage on June 1, 2013?

If yes,

Did the court have the right, under its inherent jurisdiction, to declare that the parties’ marriage, while legitimate under the Pakistani law, was not recognised as such in this jurisdiction, and if so, should that power be exercised?
Should the time limit for the W’s nullity petition be extended under Section 13(4) of the Matrimonial Causes Act 1973?

Capacity to marry

Mostyn J extracted a series of useful ideas from the broad case law on the capacity to marry, including:

A marriage contract is “a very simple one” that “does not require a high degree of ability to comprehend.” This affirmed the “universal norm” established in Durham v Durham (1885), leading him to conclude that the required capacity to marry was of a “low level.”

That marriage is “status-specific” rather than “spouse-specific”.
The ability to marry is not the same as the ability to consent to sexual intercourse. Mostyn J emphasised that “capacity is always issue-specific,” and that while the capacity to marry and the capacity to engage in sexual relations are “legally distinct” and do not “rise and fall simultaneously,” they “usually function at the same level.”
That a person getting married has no obligation to “cohabit, engage in sexual relations, or procreate with his or her spouse.” As a result, none of them is required for a legal marriage.
The spouses are given a certain status as a result of their marriage. It establishes “a union of mutual and reciprocal expectations,” the most important of which is “enjoying each other’s company, comfort, and support.” Furthermore, “the general purpose of the institution of marriage is man and woman’s consolation and contentment”. Mostyn J preferred allusions to married couples’ expectations over the language of “obligations and rights,” which he regarded as including “concepts likely to be alien to a wedding couple,” such as justiciability and enforceability.
While there may be financial implications to a marriage’s dissolution, spouses are not required to be aware of or understand those consequences. Mostyn J emphasised that a sharing economy was not the essence of a marriage contract and that marital consent did not require knowledge of prospective financial claims in the event of divorce. To use this as a criterion for marrying capacity “is to import a level of sophistication at odds with the contract’s simplicity.”
“The wisdom of a marriage is irrelevant”.
As a result, the “irreducible mental requirement” is that a “potential spouse must have the capacity to understand, in broad terms, that marriage confers on the couple the status of a recognised union,” which leads to an expectation that the couple will “share each other’s society, comfort, and assistance.”
In light of this test, Mostyn J examined the capacity assessments one by one, concluding that the Second and Third Reports had “applied a higher standard for capacity to marry than that required by law” and, as a result, had incorrectly decided that W lacked the capacity to marry in 2013. Despite the importance of these findings and W’s testimony, W’s lack of awareness of the differences between Islamic and English marriage, the financial implications of marriage, or H’s planned living arrangements had no bearing on her ability to marry. While “they may say a lot about her wisdom in marrying,” it was not the issue Mostyn J had to resolve.
In 2013, Mostyn J agreed with the First Report’s conclusion that W had the potential to engage in sexual intercourse and marry. He concluded that “she was fully aware of the simple nature of the compact and that by an exchange of vows a partnership was made with mutual expectations of comfort, society, and support,” based on W’s testimony.
As a result, both the application and the petition were dismissed. While Mostyn J recognised that this was adequate to resolve both claims, he went on to address the remaining issues in the event that a higher court disagreed with his fundamental conclusion.

Declaration under the inherent jurisdiction

Mostyn J examined Section 58(5)(a) of the Family Law Act 1986, which provides that “No declaration may be made by any Court, whether under this part or otherwise- that a marriage was void at the time of its origin.”
Mostyn J ruled that “whatever you interpret these terms, the meaning is clear”; Section 58(5)(a) “explicitly precludes a declaration of the initial validity of the marriage being made by any means”. Furthermore, Mostyn J stated that the Law Commission had stated in a 1984 report that if the court lacked jurisdiction to hear a nullity petition, it could not use a declaration of non-recognition to ‘fill the gap.’
However, Mostyn J observed that “judicial fidelity to these statutory mandates and prohibitions has been mixed.” While Mostyn J acknowledged the “temptation of a judge” to “find a loophole of some kind” where nullity proceedings are impossible, he pointed out that such a scenario had been explicitly considered by the Law Commission, and thus implicitly by Parliament, who decided that the “statutory prohibition should be unyielding even in those circumstances.” Parliament had the option of inserting an exemption based on public policy, but it chose not to do so.

Extension of time under Section 13(4) the Matrimonial Causes Act, 1973

W made a “disciplined effort” to persuade Mostyn J to interpret the medical evidence in the case, which was aimed at capacity, as indicating that she had a mental disability or mental disorder at the time of the marriage. Despite these attempts, none of the medical evidence in the case addressed the question of whether W suffered from a mental disorder or mental disability within the meaning of the Mental Health Act 1983 between June 2013 and June 2016.

As a result, the requisite for a grant of leave to apply for nullity outside of the three-year time limit set out in Section 13(4) of the Matrimonial Causes Act 1973 was not met.

The decision of the Court

The Court found that two of the experts in the case used a higher standard of capacity to marry than that required by law. In June 2013, the court heard evidence from the applicant and determined that she had the legal competence to marry. Even though she was unaware of the financial ramifications, she understood and was “completely aware” of the contract’s simple nature. Although the latter may represent her lack of insight at the time of her marriage, it had no bearing on her ability to marry. The application for a declaration of non-recognition and the petition for nullity were both dismissed on this basis.

What can be drawn from the case

The marriage contract is a straightforward document that does not necessitate a high level of intelligence to comprehend.
Marriage is status-specific, not spouse-specific.
While the ability to choose to participate in sexual relations and the ability to marry is typically on par, they do not stand or fall together; one is not dependent on the other.
A lawful marriage does not require sexual interaction.
The institution of marriage does not end with the procreation of children.
Marriage confers a certain status on the spouses. It brings together a set of mutual and reciprocal expectations, the most important of which is to enjoy each other’s company, comfort, and aid. The general goal of marriage is to provide comfort and satisfaction to both man and wife.
A marriage, as well as its breakup, may have financial ramifications. However, it is not necessary for the spouses to be aware of, let alone understand, the effects of their marriage contract.
Although most married couples live together and love one another, this is not the essence of the marriage contract.
A marriage’s wisdom is immaterial.

Judgement of the case

W’s application for a declaration and her petition for nullity were both dismissed by Mostyn J for the reasons mentioned. He said that Section 16 of the Matrimonial Causes Act 1973 has the effect of treating the marriage formed in 2013 as legitimately continuing even if he had been erroneous about the question of capacity at the time of the marriage in 2013. The most appropriate remedy, according to Mostyn J, would be for W to seek divorce.

Mostyn J, on the other hand, reassured W that the chances of H succeeding in an ancillary relief claim were “vanishingly small.”

W’s award as a result of the 1995 accident had been assessed with her requirements in mind, as well as compensation for her pain and suffering. Furthermore, the parties’ marriage had never been a marriage in the first place. It was because of this that Mostyn J found it “impossible to conceive of any circumstance” where H could mount a plausible claim against W.

Practical implications of this case

Mostyn J conducted a thorough review into the capacity to marry. He agreed with the Durham dicta (Durham v Durham (1885) 10 PD 80) that the marriage contract is a “very simple one” and the case law that sets the standard for capacity to marry at ‘low-level’. He distanced himself from Mr Justice Munby’s (as he was at the time) language of ‘obligations and rights,’ instead of referring to expectations between a married couple. He emphasised that capacity is issue-specific, noting that the capacity to marry differs from the capacity to consent to sexual relations. Ultimately, the test of capacity to marry is not difficult, even if an applicant is unaware of the financial implications of marriage (as the experts, in this case, claimed the applicant was not), they may still be able to consent to marriage.

Modern marriage does not imply a responsibility to cohabit (which the applicant had not done in this case), engage in sexual relations, or conceive. There is also a thorough examination of the law relating to declarations in family issues, as well as the Law Commission’s recommendations in its 22 February 1984 report, which resulted in the Family Law Act 1986. (FLA 1986). The ‘statutory prohibition’ found in FLA 1986, according to Mostyn J, prevents a court from declaring a marriage’s initial invalidity. Furthermore, Mostyn J expresses the Law Commission’s view that if a court lacks jurisdiction to hear a nullity petition, it cannot use a declaration of non-recognition to “fill the vacuum.” In NB v MI, the Court determined that the petitioner had the capacity to consent and that the marriage in June 2013 was legitimate under English law at the time of its formation. Even if the Court decided she lacked capacity and the marriage was voidable because the applicant did not consent due to insanity, Mostyn J was clear that he would have refused to grant a declaration that the marriage should not be recognised because it would have been a “blatant bypassing and flouting” of the statutory prohibition.

Conclusion

As a result, the irreducible mental condition is that a prospective spouse must be able to comprehend, in general words, that marriage confers on the pair the status of a recognised union, resulting in an expectation of sharing each other’s society, comfort, and help.

It is not necessary for a person getting married to understand the financial implications of the union in-depth, let alone the law of financial remedies. A person getting married is also not obligated to cohabit, engage in sexual relations, or conceive with his or her spouse.

References

https://1gc.com/images/uploads/documents/TR_-_Capacity_to_consent_to_marriage_nullity_and_declarations_under_the_inherent_jurisdiction_considered_%28NB_v_MI%29.pdf

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Anti-piracy reforms with respect to media law

By

Sneha Mahawar

-

September 10, 2021

0

Anti piracy — Image source - https://bit.ly/3hbOKPE

This article is written by Niharika Agrawal, pursuing B.B.A.L.L.B from IFIM Law School. This article comprises major media piracy and recent development in the anti-piracy reforms with respect to media law.

Introduction

Piracy has been a global issue since 1980. According to the Oxford dictionary, piracy is the unauthorized use of someone’s original work. It rapidly increased after the advancement in media technology such as the enormous spread in video culture, the emergence of software giants, etc. The collaboration of Indian media globally with movies, music, televisions gave rise to the urgent need for copyright protection. Large-scale piracy has not just been found in audio cassettes and books as earlier but is also a threat to larger economic models and national ambitions. From the 1980s piracy has been seen in India through production, circulation, and regulation of media and culture.

In today’s world, digital technology and the internet enable easy accessibility of pirated content. Online markets such as Amazon Prime, iTunes, and other OTT platforms and offer media libraries that provide a wide range of music, movies, news, gaming, etc. This media library makes it more feasible for internet pirates to use the web as a platform for illegal downloads and uploads. These possibilities have increased illegal production and distribution at a huge scale which has resulted in huge financial losses for artists, companies, and publishers.

This has created more pressure on owners and broadcasters. This financial loss and other harmful impacts of piracy need to be controlled by specific laws and reforms especially in India which is the second largest online media hub in the world. This article deals with the comprehensive details regarding media piracy in India and the latest development and efforts made by various people in combating media piracy.

Media piracy in India

There are several ways through which media piracy can take place. It is either through software by just copying it to another unauthorized machine or in cinematography by live recording and further telecasting for free without permission from film producers or in music or games using indefinite ways. These are the following major ways through which media Piracy is practiced.

Sound piracy

Three types of piracy are found in the music industry.

Firstly, by copying songs from different legal cassettes and CDs and then uploading them in one Cassette or CD. After which it is packed in some other name and sold in the market.
The second type of piracy is committed through counterfeiting. In this, the song is illegally copied and packed in such a manner using the same logo and symbols that a prudent man thinking it to be original, purchases the duplicate product. This misleads the consumers and the original owners have to suffer.
Lastly, music piracy is committed by the way of bootlegging. In this, during the performance of an artist, various unauthorized recordings are made and are sold in the market. These acts are done without the permission or knowledge of the artist and composers or any other recording company. One of the biggest piracy in the music industry was found in the 1970s during the era of T-series.

Case study of T-series

In 1979, Gulshan Kumar and Gopal Arora who have had a keen interest in music opened a small studio where they used to record certain regional music such as Ghrwali, Punjabi, Bhojpuri, etc. To learn more about the recording industry they visited various countries such as Japan, Hong Kong, and Korea. Later they established a factory to produce magnetic tape and audio cassettes and eventually built a large manufacturing plant that consisted of duplicate series for small regional cassette producers. Due to this, T-series by the 1980s became the market leader of cassette production in India and started manufacturing videotapes, television, washing machines, and detergents. After getting success in all this they also started producing VCD and MP3 players.

This successful pirated content was spread all over the Indian market. Gulshan Kumar further studied the loopholes in the Copyright Act, 1957, and with the help of it, he recorded near-perfect versions of movie songs. On the basis of this, the T-series has released thousands of cover versions of classic film songs, and hence it resulted in copyright infringement in the form of pirated content and often illegally obtained film scores before the release of the film in the market. He was also charged for discrediting the brands of competitors through the whole business of inferior magnetic tape. Further, T-series started distribution of cassettes in nearby shops, grocery stores, paan centers, etc. and they realized the importance of the product in their commercial life. He also started recording in other ignored languages by dominant Indian record labels and distributors. By providing such duplicate services to smaller labels, it helped in the revival of other small market music traditions.

According to recent observations, due to the availability of smartphones and affordable internet charges, India has been accompanied by an increase in the consumption of pirated content online. Accordingly, 76% of the people are accessing music through pirated means such as illegal P2P (peer-to-peer) apps, streaming apps, stream-ripping websites, or even infringing websites due to which the Indian recorded music industry is suffering a loss of $250 million annually.

Computer software piracy

Computer software consists of the creation and distribution of computer programs and such piracy is committed by copying and distributing computer programs without the permission of copyright holders. It takes a lot of effort to build up software programming. Piracy in software companies is observed more than any other as it is relatively easy to copy software on computers. These pirated versions perform the same as the original and look alike too. Five very common ways of piracy in software are counterfeiters, resellers, mail order house bulletin boards, and end-users piracy.

Microsoft Corporation vs. Yogesh Papat & Anr. 2005

The plaintiff, in this case, had registered for the proprietorship of the trademark of ‘Microsoft’ and along with this he also had the copyright and license agreement of other computer software such as MS Windows 98, MS office 2000, and MS Visual Studio 6.0. Here the plaintiff had filed a plaint against the defendant for infringement of the software in the computer. According to his allegations, the defendant used to sell the copies of this software without any license by loading it in a hard disk of the computers. This plaintiff’s company suffered a huge financial loss. The plaintiff, in this case, sought from the court a permanent injunction to restrain the defendants and his staff from such illegal acts of infringing the plaintiff’s copyright. Further, the plaintiff also asked for compensation for all the losses including all the counterfeit copies of the plaintiff’s software, and the software which has the plaintiffs’ trademarks, or any other mark which may be identified without his permission, and the duplicating equipment used in copying the same.

The Delhi High Court in this case gave the decision in favor of the plaintiff and awarded him the compensation of Rs.19.75 lacs along with interest @ 9% from the date of judgment till the payment. The Court stated that this case constitutes a general threat in infringement of the copyright in the class related to software.

Movie piracy

Cinematographic piracy is a bit complex as it requires varieties of copyright in single work. Initially, it’s a theatrical right in which the distributors buy this right from the producers for the actual viewing of the public. However, these rights are limited to time and territory. Therefore, it is more feasible to view the films on video cassettes that do not need cable or satellite connections. Two forms of piracy found in movies are video piracy and cable piracy.

Video piracy

Video piracy is the one in which films are produced in the form of cassettes without the permission of the right holder. Usually, producers sell the video rights after 6 weeks of the release of the film. This sale of video rights is legal and authorized for home viewing only. Any commercial use of these cassettes such as in video parlors may cause a violation of copyright. Two types of video piracies are mainly found in India.

First, where video rights for films have not been sold by the producer but video cassettes are available in the market for buying or borrowing.
The second is when video rights are legally given to the parties, but cassettes are made and sold by pirates as well.

Cable piracy

Cable piracy is the unauthorized transmission of films through cable networks. As mentioned above, showing a film in a cable network requires the acquisition of proper authorization from the right holder. But many a time, films, especially the new releases, are shown through cables without such authorization, which tantamounts to piracy.

However, nowadays these pirated contents are easily available due to the internet. Online film piracy was increased by 62% in India during March 2020 than in February that is during the initial stage of lockdown. The reason behind this was that part of the country’s population could not afford legal video streaming platforms such as OTT or may want to intentionally consume free pirated content. OTT platforms with their advanced technologies have given rise to digital piracy as these platforms need the subscription through money. Last year, due to a lockdown when all the theatres were closed, many of the producers released their fresh films on OTT channels such as Netflix, Hotstar, Voot, Prime, etc.

Very recently, the movie Radhe was released on Zee studio however its pirated copies were leaked on Telegram and Whatsapp. The production company also filed a complaint about downloading and selling the pirated version of these movies, also Salman Khan the lead role actor in the movie warned the people who were engaged in piracy.

Piracy in web series

Piracy was also found in recent web series such as Sacred Games, the very famous series on Netflix. The pirated version of its second season was released on various messaging applications such as Telegram and other pirated websites on the internet. As per the report by Irdeto, a global solutions provider in digital platform security, media, and entertainment, Indian media and entertainment loses $2.8 billion of its annual revenue to piracy. Also, it observed that India is among the top five countries in peer-to-peer downloading.

The above contents were some of the common media piracy which has increased in today’s time. This causes a huge impact upon the original creators who invest lots of time, money, and skills in the creation of such unique things. Therefore, it is important to know about the laws governing media piracy.

Piracy law in India

In India, there is no definite law to regulate the act of piracy. However, it is governed under the Copyright Act, 1957 that gives protection to all kinds of literary, artistic, musical, and dramatic work. This also protects the interest of moviemakers and distributors. One of the objectives behind the Amendment Act of 2012 was to curb the rapid increase in online piracy in India.

Section 65 A of the Amendment Act secures Technological Protection Measure (TPM) that is used against the breach by the copyright owners. If such breach occurs by evading TPM, then the person could be punished with a fine and imprisonment up to 2 years. Section 65B of the Act also protects sensitive information from unauthorized and illegal sites through Information Rights Management. Any alteration or intentional removal of IRM would lead to an offence punishable with imprisonment.

Section 66 of the Information Technology Act, 2000 protects against the online distribution of illegal copies of the pirated contents and if such offence is committed, it can be punished with imprisonment for at most 3 years and fined up to 2 lacs.

Anti-piracy reforms in India

The act of piracy has immensely affected the profits of rightful copyright owners and also the overall economy of the country. This has increased due to the inability of the copyright owners in identifying the real culprit behind infringements of such rights and also due to the presence of digital media everywhere resulting in a lot of pirated content. Being scared of these increasing threats, the Government of India initiated numerous reforms at various levels to curb these threats.

National Intellectual Property Rights Policy, 2016

The government initiated this policy in 2016 with an intention to spread IPR awareness, creation, commercialization, and enforcement of these reforms. The policy defines “pirated copyright goods” as stated under the TRIPS agreement, “goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.”

Objective 1 of this policy is to create awareness of the economic, social, and cultural benefits of IPRs especially among the teenagers who are the major consumers of the pirated content. This would help in understanding the importance of IP rights and the impact of the infringement on the artist’s rights and the economy of the country. This will further help in clarifying the difference between the distribution of legal and illegal channels at a large scale in the society who are unknowingly the victims of promoting piracy.
Objective 3 of the policy deals with the amendments in the Cinematograph Act, 1952 for additional provisions in the illegal recording of the films.
Objective 6 of the policy states the requirement for awareness, firm enforcement, and mechanism to fight offline and online media piracy among a large group of individuals.

Few steps were taken to tackle the issue of piracy.

There was an enhancement in coordination, direction, and guidance among various agencies for strengthening enforcement measures.
Continuous sharing of intelligence and best practices at various national and international levels.
Awareness about IP violations and their impact upon various sectors were studied.
There was a continuous examination of implications in jurisdiction among enforcement authorities.
Various solutions through appropriate technology were introduced for curbing digital piracy.

The Cell for IPR Promotion and Management (CIPAM)

The National IPR Policy has given rise to the Cell for IPR Promotion and Management (CIPAM) under the various departments of the Government of India that is the Department of Industrial Policy and Promotion and the Ministry of Commerce and Industry. This was profound for promoting awareness and strengthening the enforcement of IP rights. CIPAM together with the Film and Television Producers Guild of India and Viacom18 has campaigned against piracy through a series of videos on anti-piracy. This campaign consisted of top celebrities to give more effects on public minds. Also, various cartoon videos were aired for the children’s awareness stating ‘no to piracy’. These videos were played before the movies in all the cinema halls including the largest cinema chain that is PVR cinemas. Due to all these efforts, CIPAM collaborating with the National Internet Exchange of India and Maharashtra Cyber Digital Crime Unit (MCDCU) has suspended 300 pirated websites. These materials relating to anti-piracy were available on CIPAM websites in multiple languages in schools, markets, cinema halls, etc to combat the issue of piracy. CIPAM, in association with the Federation of Indian Chambers of Commerce and Industry (FICCI), has created an IPR Enforcement Toolkit for Police to guide police officials in dealing with IP crimes, in copyright piracy. The toolkit provides:(i) information on legal provisions relevant to IPR crime, (ii) a checklist for registering a complaint, (iii) a checklist for search and seizure, and (iv) proposed guidelines for search and seizure in case of IP crimes. This policy of 2017 has also initiated training programs for the judiciary such as high courts and district courts.

Indian Music Industry (IMI)

It is the second oldest music company established in the year 1993. It is registered as a society in West Bengal. IMI includes several major companies like Saregama, Venus, Sony, etc. It is the first organization to initiate police officers to lead anti-piracy operations. IMI operates law enforcement, gathering information, etc. to deal with the issue of piracy through its strong teams in the offices at Kolkata, Bangalore, Mumbai, Chennai, and many other cities in the Country. From 2001 to 2004, IMI registered over 5500 cases, seized over 10 lakh music cassettes, and around 25 lakh CDs.

Business Software Alliance (BSA)

BSA has its regional office in Delhi from where various anti-piracy operations are conducted across the country. According to BSA, India is at 20th Rank in global piracy. They involve the general public in providing information on pirated software through an anti-piracy initiative. They also punish various companies for using unlicensed software. They organized reward programs for encouraging people to fight against piracy.

Industry Enforcers

Famous T-series and Yash Raj Films and many more Bollywood and music companies have established anti-piracy reforms to fight piracy in specific markets. These branded companies have many times conducted raids along with the police officials to scrutinize piracy of its copyrighted contents and took strict action against the digital stealing. They are also part of enforcement activities against piracy at national and international levels. This organization is also trying to enforce anti-piracy laws by conducting raids across the country with the help of Ex-Cops.

Other initiatives by both Central and State Government

Anti-piracy measures in the Draft E-Commerce Policy– This was prepared in 2019 to take into consideration all the interests of the stakeholders like investors, manufacturers, MSMEs, traders, consumers, and start-ups. Following measures were initiated by these stakeholders.

Intermediaries were involved to prevent the online dissemination of pirated content. Also gave priority to the trusted entities for resolving the complaints.
As soon as the complaint was charged for the program, distribution of pirated content without any authority, such websites are removed or disabled access to the alleged content.
Rogue websites are the host of all the pirated websites. A body of stakeholders are created to identify such rogue websites and after proper verification, they are included under “Infringing Websites List” (IWL), which provides the following measures

Internet service providers (ISPs) remove or disable access to the websites identified in the IWL within a set of specific time periods.
Payment gateways are not permitted for the flow of payments to or from such rogue websites.
Search engines take the necessary steps to remove websites identified in the IWL in their search results.
Advertisers or advertising agencies shall not host any advertisements on the websites identified in the IWL.
The Ministry of Home Affairs has launched the National Cyber Crime Reporting Portal where the citizens could easily log and complain regarding cybercrimes. Online piracy complaints can be filed under subheadings.

The above are certain anti-piracy reforms initiated by the Government of India to combat media piracy. It’s not just the government but also the judiciary that has contributed to this fight against piracy. Following are the steps that were taken by various courts to prevent piracy in the country.

Judicial contribution

The Copyright Act has provided relief to the artist against cybercrimes to much extent from civil and criminal liabilities. From the purpose of restricting unauthorized broadcasting to blocking the websites, Indian courts have taken strict actions against online piracy.

With the help of the introduction of John Doe orders (also called Ashok Kumar orders in India), it has become easy to identify the infringers and take action against them for online pirates. The courts in such cases grant injunctions against anonymous persons, that is they do not reveal the identity of the infringer but describe them by a brief description of the identity of the person via notice. It allows the victim to search the premises and seize the evidence of infringement of the rights from the unknown defendant. To obtain this order the victim has to establish the following.

a prima facie case.
likelihood of irreparable damage if the order is refused.
balance of convenience in favor of the plaintiff.

In the case of Taj Television LTD v. Rajan Mandal (2003) the concept of the John Doe order originated. In this case, the order was issued against the cable operator who was unauthorisedly broadcasting the World Cup football tournament. The Delhi High Court granted Taj ex-parte injunction on both named and unnamed cable operators for unauthorized transmission of its broadcasting rights which lead to infringement of copyright. Due to this, several cable operators have not signed up with Taj or its authorized operators for broadcasting the tournament without any permission, which has changed the television industry with millions of losses.

One of the important developments was brought in the form of a ‘dynamic injunction’ in the recent landmark judgment pertaining to combat online piracy in India. In the case of UTV Software Communication Ltd. v. 1337. TO and others (2019), the Delhi high court has assured that the right holders need not go through a lengthy and complex process of a judicial order for issuing blocking orders. Instead, the plaintiff can directly approach the Joint Registrar of the Delhi High Court to extend an injunction order which already existed against similar websites containing mirror contents. This form was inspired by Singaporean law. The Court has also ordered the plaintiff to file an affidavit for the confirmation of the mirror website with sufficient reasonable evidence. On satisfying the declaration, the Joint Registrar will direct the ISP to remove all the access in India to such mirror websites. This would restrain the people who are unknowingly using the pirated sites.

Conclusion

Every person has a right to protect their work from being stolen. Lots of financial and mental efforts are required to create such innovative art. Online media piracy has increased with the rapid growth in technologies. Both Central and state governments have enforced various anti-piracy reforms and amendments in the Copyright Act to secure the intellectual rights of the right holders. These efforts had proven to be successful to much extent. However, in this digital world, it is not easy to eradicate the problem of piracy completely as most of the users are aware of piracy, and it is easily and freely available.

The recent judgment is a giant step towards blocking the websites and making the enforcement procedure easier for the copyright owners. It can be more beneficial if these directions of the courts could be formulated as the policy in India. Due to all such reforms, there might come a time when the users will be notified about the pirated content they are unknowingly accessing. To make India a piracy-free country, many more anti-piracy reforms should be introduced and there should be easy and affordable access to the original content so that the users will no more use pirated content.

Reference

https://copyright.gov.in/documents/study%20on%20copyright%20piracy%20in%20india.pdf

https://www.campaignindia.in/article/how-content-piracy-has-evolved-with-the-rise-of-ott/469731

http://piracy.americanassembly.org/wp-content/uploads/2011/06/MPEE-PDF-Ch8-India.pdf

https://www.livemint.com/news/india/india-sees-big-spike-in-film-piracy-post-covid-19-11589183182123.html

https://www.myadvo.in/blog/the-legal-battle-against-online-piracy-in-india/

https://www.mondaq.com/india/copyright/901978/combating-copyright-online-piracy-in-india-government39s-initiatives-and-judicial-enforcement

https://cis-india.org/a2k/blogs/piracy-and-enforcement

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Laws governing the wildlife trade in India

By

Sneha Mahawar

-

September 10, 2021

0

wildlife trade — Image Source: https://bit.ly/2MaYCJq

This article is written by Divyanshi Singh of Symbiosis Law School, Noida. This article discusses the Wildlife (Protection) Act, 1972 along with several other Acts that protect the survival of wildlife in India. It also gives a detailed analysis of the wildlife trade and multiple organizations working to prevent the illegal trade.

Table of Contents

Introduction

Our country has a long history of conservation, dating back to Asoka’s stone edicts in the 3rd century B.C., which laid out guidelines for elephant preservation. The conservation agenda has evolved over the years in response to changing human needs, cultural, social, and political standards. As a result, wildlife policing in India has also evolved, with the most drastic developments coming in the past several years.

India, as one of the world’s most biodiverse countries, plays a significant role in the international trade of wildlife, which includes all kinds of wild animals. There is more to wildlife trade than merely charismatic creatures. Animal conservation in India is governed by the Wildlife (Protection) Act, 1972, which is the country’s primary wildlife legislation. As well, India was one of the first countries to ratify CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora).

Wildlife, which is an integral part of the environment, constitutes the wealth of the nation. Man in the course of development has been causing a lot of damage to the forest and wildlife. In order to protect the wildlife, the government has passed the Wildlife Protection Act, 1972.

The objectives of this Act are as follows:

To provide protection to wildlife animals, birds, and plants.
Empowerment of the central government to declare certain areas sanctuaries and national parks where human involvement would be vastly restricted.
Prohibition of hunting of birds and animals and suitable punishment in case of violation of the rules.

Under the Section 2(37) of the Wildlife (Protection) Act of 1972, animals and plants that are found in the wild are included in the definition of wildlife. These ecosystems would also include those found in the ocean, freshwater, and coastal regions.

Wild Animal as per Section 2 (36) includes any animal that is given in Schedules I to IV of the Act and is wild in nature.

Wildlife trading

What is wildlife trading

The term “wildlife trade” refers to the selling and exchange of animal and plant resources. Ornamental animal items such as corals for aquariums, reptile skins for the leather industry, tortoiseshell, as well as ornamental plants such as orchids and cacti are traded. It also includes timber products, medicinal and aromatic products such as taxol, agarwood, and musk, as well as fisheries products and live animals for the pet trade, such as parrots, raptors, primates, and a large range of reptiles and decorative fish.

When it comes to the Wildlife (Protection) Act of 1972, Chapter V explicitly deals with Trade or Commerce in Wild Animals, Animal Articles, and Trophies, even though the word “wildlife trade” is not defined.

What are the reasons for wildlife trading?

Food;
Fuel;
Fodder;
Handicrafts;
Healthcare;
Ornaments;
Pet;
Timber.

Illegal wildlife trading

What is illegal wildlife trading

Illegal wildlife trading is the sale or exchange of wild animals and plants that are prohibited to be sold under law. This can include live or dead animals, plants, and their byproducts. For example, the trade could be in the pet or horticulture industries. It could also be in the sale of wild animal and plant items, such as skins and medicinal ingredients or tourist attractions.

Why is illegal wildlife trading problematic

Over-exploitation of species-

As a result of the illegal wildlife trade, several species have been severely over-exploited, making it difficult for them to survive at all. A lot of attention has been paid to this issue in the case of tigers, rhinoceros, elephants, and star tortoises.

Depletion of species due to over-usage-

Many freshwater and marine species, such as otters, freshwater and marine turtles, corals, sharks, tuna, and other sea fish, have been depleted as a result of overfishing for commerce.

Economic Development is hampered-

It’s not just about preserving creatures from extinction when it comes to fighting the illegal wildlife trade. Promoting economic development and the rule of law as well as protecting public health are all part of this effort.

Major health risk-

In addition to posing a major health risk, illegal wildlife trading can spread diseases such as avian influenza and SARS, as well as the Ebola virus and tuberculosis from animals to humans.

Depleting forest resources-

A substantial percentage of our human population relies on forest and coastal biomes for their sustenance, and the illicit wildlife trade threatens that.

Threat to livelihood-

Not only do these people rely on wild resources to feed themselves, but they also rely on them to provide for their livelihood and healthcare. These wildlife resources must be managed sustainably and protected in accordance with the legislation.

Reasons for the steep rise in wildlife trade in India

Prosecution of illegal traders and animal stores is a difficult and challenging task in itself, often leading to deception. The majority of the cases have fallen due to the high level of corruption, with barely a few exceptions. Typically, the networks of trafficking in wildlife include numerous interconnected pieces that function in the chain.
High Court interventions were ineffective since these markets are extremely robust and tailor-made. Sometimes a market stops for a while when there comes a stringent judge in the High Court and comes back in action when they retire.
The local police are generally in cooperation with illegal traders in markets like Crawford. Information is transmitted directly to traders when a citizen or activist is informed and makes a complaint at a police station. All measures are in place before raiding the region. That is why activists now rely on the criminal branch to ensure they do not involve the local police station.
While the WPA governs trading in wild animals, it excludes exotic wild animals imported into India. Because the WPA only applies to trade in native animals protected by its six schedules, this gap has resulted in a dramatic increase in the commoditization and sale of exotic species.
The customs law provides another loophole. The Customs Act 1962, the Foreign Trade (Development Regulation) Act 1992, and the Government of India’s Foreign Trade Policy all contain penalties for import and export offences such as wildlife movement without authorization, the export of protected species, or the misclassification of exports.
Customs law applies only when there is clear evidence of smuggling, and the onus of tracking animals to their nation of origin falls on the authorities, which is a challenging process.
The absence of provisions for imprisonment further weakens these regulations. Furthermore, they do not mandate the involvement of wildlife and forest authorities, who are normally specialists in this subject. This leads to a lack of inter-agency coordination and, as a result, additional enforcement issues.

Non-governmental organisations working for wildlife protection

CITES

The Convention on International Trade in Endangered Species of Wild animals and plants aka CITES, is an international agreement that was drafted after a resolution at a meeting of IUCN (International Union for Conservation of Nature) in 1963. It came into force in July 1975.

This convention ensures that the international trading of wildlife does not prove harmful to the survival of the species. It establishes a framework that must be adhered to by each party, which must adopt its own domestic laws to guarantee that CITES is implemented at the national level.

WWF India

WWF-India is the country’s largest non-governmental organization dedicated to the conservation of biodiversity and natural environments. It works with a wide range of stakeholders, including local communities, teachers and students, state and federal governments, industry, and civil society organizations, to ensure that future generations will have a healthy world. WWF-India implements its goal and operations through a network of state and field offices scattered throughout the country. The Secretariat is based in New Delhi, and the organization is part of the WWF’s international network, with its headquarters in Gland, Switzerland.

PETA India

Founded in January 2000, PETA India is a non-profit animal welfare organization. It aims to educate politicians and the public about animal abuse and promote a better understanding of the right of all animals to be treated with respect.

PETA India focuses on the areas where animals suffer the most: laboratories, the food industry, the leather trade, and the entertainment industry. PETA India’s investigations, public education campaigns, research, animal rescues, legislative advocacy, special events, celebrity involvement, and national media coverage have resulted in innumerable changes to the quality of life for animals and have saved countless lives.

TRAFFIC

TRAFFIC is a worldwide network that includes TRAFFIC International, based in Cambridge, UK, and offices on five continents, seven regional programs in 25 nations and territories, and ongoing research and activities in dozens of others.

Since its establishment in 1976, TRAFFIC has evolved to become the world’s largest wildlife trade monitoring organization and a global expert on wildlife trafficking concerns. TRAFFIC actively monitors and investigates wildlife trade, and delivers its findings to a diversified audience worldwide as a basis for effective conservation policies and activities.

As part of its mission, TRAFFIC India is actively involved in wildlife trade-related issues in India and the South Asian region. This includes providing policy inputs, supporting and strengthening field enforcement, and improving capacity across multiple levels and organizations to handle wildlife trade-related issues.

Government Agencies contributing to wildlife crime enforcement

Directorate of Wildlife Preservation: It works on national policies and legislations that are related to the issues on wildlife.
Wildlife Crime Control Bureau: A federal agency on enforcement and regulation of wildlife crime and has multi-agency representation.
State Forest Departments: It is responsible for the management of enforcement of forest and wildlife resources within respective states.
State Police Departments: It works on the enforcement and the investigation of crimes within respective states.
Central Bureau of Investigation: This agency is entrusted with the investigation of criminal cases. It is also the nodal agency of Interpol in India.
Indian Customs: This body regulates trading across international borders.
Department of Revenue Intelligence: It is a federal agency that works on the collection of intelligence about the smuggling of contraband goods, narcotics, under-invoicing, over-invoicing, etc. With the help of its sources in India and abroad, it analyzes and disseminates such intelligence to the field formations for action.
Indian Army: Indian Army is present along with remote border areas of the country and helps in monitoring transborder activities.
Paramilitary including Coast Guard, ITBP, SSB, BSF, CISF, etc.: They are present on all international borders, airports, seaports, etc., to monitor trans-border activities.
Directorate of Forensic Sciences: A premier federal agency on forensics that provides specialized support to enforcement agencies.
State Forensic Directorates
Wildlife Institute of India (WII): In order to implement the Wildlife (Protection) Act, 1972, WII was established with the primary objective of developing and standardizing techniques for identifying the species of varied wildlife parts reported in wildlife trade and providing support to various enforcement agencies such as the Forest Department, Police Department, CBI, DRI, Courts, Government of India, and Customs.
Zoological Survey of India
Botanical Survey of India
Central Marine Fisheries Research Institute

Interpol and Wildlife Crimes

The “International Criminal Police Organization Interpol” (Interpol) is the world’s largest international police organization. Established in 1923, it encourages international police cooperation and provides assistance to all organizations, institutions, and services whose duty is to prevent or combat international crime and terrorism.

There is a National Central Bureau in each of the Interpol member countries, which is maintained by local law enforcement professionals. For the General Secretariat, regional offices, and other member countries requesting assistance with foreign investigations and the finding and recapture of fugitives, the NCB serves as a recognized contact point for Interpol. It is the responsibility of the National Central Bureau (NCBs) to act as a link between member countries and the General Secretariat. Indian law designates the CBI (Central Bureau of Investigation) as a National Central Bureau (NCB).

1992 marked the beginning of Interpol’s campaign against environmental crime, and since then, the program has evolved dramatically. Towards the beginning of 2006, a full-time officer was appointed to handle the wildlife crime program, which continues to extend its activities in cooperation with numerous national and international authorities.

Laws regulating wildlife trading in India

The following Acts have an important bearing on the enforcement of wildlife in India:

The Wildlife (Protection) Act, 1972
The Indian Forest Act, 1927
The Forest Conservation Act,1980
The Biological Diversity Act, 2002
The Prevention of Cruelty to Animals Act, 1960
The Criminal Procedure Code, 1974
The Indian Penal Code, 1860
The Arms Act, 1959

The Foreign Trade (Development and Regulation) Act, 1992: India, at present, governs all the Exports and Imports, including that of wildlife under the EXIM Policy that was formulated under this act.

The Customs Act, 1962: Custom Violation in export and import is regulated under and is punishable under this Act.

The Prevention of Money Laundering Act, 2002: As per the amendment of 2009, hunting of wild animals is constituted as an offense.

Wildlife (Protection) Act, 1972

The Wildlife Act was enacted by Parliament under Article 252 of the Constitution of India after 11 state legislatures passed the required resolutions. After the subject wildlife was moved to the concurrent list by the 42nd Constitutional Amendment in 1976, Parliament was empowered to enact laws relating to wildlife without recourse to Article 252(1).

The Act regulates trade and commerce in wild animals, animal articles, trophies, and derivatives from certain animals. Any violation of the provision in the Act attracts imprisonment and fines. Under section 26(1)(i) of the Indian Forest act, 1927, anyone who contravenes any rules made by the state government to hunt, shoot, fish, poison water, or set traps or snares, is punishable in a matter provided in that section.

In India, the Wild Life (Conservation) Act, 1972, is the primary legislation for wildlife protection. A number of amendments have been made to this Act as per changing circumstances. The following are some of the key components of the Act:

The Act categorizes species into “wildlife” and “wild animals”.
Wild animals are divided into six categories.
Only species listed in Schedule V (vermin) are allowed to be hunted without permission.
All other species can only be hunted under particular conditions and with special permits.
Schedule I animals can only be hunted under very unusual circumstances, with the permission of the Chief Wildlife Warden, and only when the species has become a threat to human life or is disabled or diseased beyond recovery.
Schedule I to IV species can be hunted with authorization from the Chief Wildlife Warden or the Authorised Officer if they pose a threat to human life or property, including standing crops, or if they are diseased or handicapped beyond recovery.
Species included in Schedule I through IV and Schedule VI are protected, wherever they are found.
Wildlife, as defined by this Act, is protected as part of the habitat in any Protected Area.

Wildlife offenses in India

The following acts constitute a crime against wildlife in India and are punishable offenses as per the Wildlife (Protection) Act, (1972).

As per Section 9 of the Wildlife (Protection) Act, 1972, any illegal hunting or killing of any species is stated under the schedules of the Wildlife (Protection) Act, 1972, or even the slightest attempt to do so.
Under Section 27 and Section 35(8), causing harm or destruction to any National park or Sanctuary is punishable.
Illegal possession of wild animals and/or their derivatives require signed authorization from the Chief Wildlife Warden to keep all “animal articles, trophy or uncured trophy” that are produced from animals stated listed in Schedule I or Part II of Schedule II as well as salted and dried skin of any such animal, as well as the musk from musk deer or rhino horns. Such possession, even if it predates the CITES treaty or Indian law, is prohibited without a certificate of ownership from the Chief Wildlife Warden.
Section 40(2), 43, 44, 49, 49 B prohibits the domestic or foreign commerce of specified species or their derivatives.
Entrance into a national park or wildlife refuge without authorization as given under Section 27, 35 (8).
Invasion of a national park or wildlife sanctuary with a weapon according to Section 31, 35(8).
Arson and the use of harmful chemicals within a sanctuary, a national park, or a Conservation reserve as per Sections 30, 32, 35(8), 36 A(2), 36C(2), 38V(2).
The act of mocking or assaulting animals in a zoo, or causing disruption or littering is punishable according to Section 38J.

Transnational crimes in illegal wildlife trade

Crimes involving more than one country are referred to as “transnational crimes.” The structure, strength, size, geographic range, and extent and diversity of operations of transnational criminal organizations vary greatly.

A group of persons acting together to commit one or more significant crimes with the goal of directly or indirectly receiving an economic or material profit is usually the basis of worldwide organized crime syndicates. In the actions of such a group, “money laundering,” or the recycling of illicitly obtained money, plays a major role.

Let us look at some major characteristics of transnational organized crime:

Fraudulent use of legal business entities, especially in the transportation sector.
It has a considerable impact on business, politics, the media, public administration, and other areas of public life.
When such criminals are captured, they seem to have no trouble getting access to expensive legal counsel, despite the fact that they may appear to have limited financial resources.
It often thrives in the absence of strong governance regimes, especially under unstable political settings, most often in the “developing world.”

In the illegal wildlife trade, organized criminal groups generally fall into three categories.

Local farmers: They sell species to supplement their meagre income.
Mafia-style groups: These groups purchase species from impoverished peasants and sell them at a large profit. Such groups are especially common in developing nations.
Major International Smuggling Rings: These rings are involved in other illegal trades as well. They tend to use violence, have resources, and are aware of smuggling routes, therefore, present the greatest threat in regulating the illegal wildlife trade.

Global health implications of wildlife trade

There exist threats to global health due to a variety of risk factors for new infectious diseases ranging from climate change to security concerns. However, few seem instantly manageable in the name of the global wildlife trade. Wildlife trading provides disease transmission channels at levels that not only cause epidemics but also affect livestock, rural incomes, international trade, local wildlife populations, and ecosystem health. The global wildlife trade is nearly impossible to quantify as it exists at every level from local barter systems to massive international channels. Most of the wildlife trade is performed illegally or through informal networks.

The scale of the wildlife trade is tremendous. According to Interpol, the annual illegal trade alone is worth the US $6.2 billion, making it one of the world’s most lucrative criminal activities. The profits earned from the illegal trade are mostly concentrated in the hands of small groups of intermediaries, many of whom are also involved in drug and weapon smuggling.

As per a report, one-third of the first 41 patients that were admitted to the hospital with COVID-19 symptoms had been exposed to the Huanan Seafood Wholesale Market in Wuhan, central China in some of the other manner. It is believed that there is a high possibility that the coronavirus developed from this wet market in Wuhan where illegal wildlife trade exists. It provided optimal conditions for the coronavirus’s new mutation due to the poor hygiene conditions. The market also sold livestock protein alongside wild species such as pangolins, bats, snakes, and civets. All this created an ideal breeding habitat for the novel virus. The apparent link between the Huanan Seafood Whole Market and the global outbreak of COVID-19 quickly drew attention to animal trafficking in wet markets.

Wet markets typically sell ‘wet’ commodities such as fruits and vegetables, as well as domestic animal protein. Because of a variety of socioeconomic conditions, these markets are a common characteristic in the Global South. One of the frequently reported concerns is a lack of access to refrigeration in poor urban settlements, which diminishes the practise of consuming cold meat, which is popular in the Global North. Customers who prefer ‘fresh’ and ‘warm’ meat to frozen meat throng to these markets on a regular basis. As a result, these wet markets supply important nourishment to urban people and are critical to maintaining urban food security. However, when the hygienic conditions of these marketplaces are poorly regulated and there is parallel traffic in animals, a major threat to public health is posed.

Unregulated wet markets dealing in animals risk becoming potential origins of zoonotic disease pandemics due to high pedestrian traffic, high human-species interactions, and a lack of proper sanitary procedures. As long as wildlife trading in those marketplaces and throughout the entire supply chain stays unregulated, we will continue to be confronted by a nuclear pandemic bomb that is detrimental to human health, environmental security, and the global economy.

Landmark cases

Let us discuss the landmark cases that have evolved wildlife protection in India.

State of Bihar v. Murad Ali Baig (1988)

The case of the State of Bihar v. Murad Ali Baig focused on elephant hunting and whether it was justified under the Indian Penal Code and the Wildlife Protection Act. It was held by the Supreme Court that killing/hunting elephants is a crime as they fell under the ambit of Schedule I of the Wildlife (Protection) Act, 1972.

It was further held that “hunting” as per the definition under the Wildlife (Protection) Act, 1972 and Section 429 of the Indian Penal Code, 1872 are not the same. The Court was of the view that the ingredients of an offense under the Wildlife Protection Act, 1972, are significantly different from those of an offense under the scope and breadth of the Indian Penal Code.

Tilak Bahadur Rai v. State of Arunachal Pradesh (1979)

In the case of Tilak Bahadur Rai v. State of Arunachal Pradesh, a Tiger was shot and killed by the defendant. When deciding whether an accused killed a wild animal in good faith or not, the Court concluded that it was essential to comprehend the nature and hazards that surrounded the accused, as well as the circumstances under which the accused killed the animal. According to the Court, the accused shot the tiger that charged at him in good faith and as a means of self-defense after due discussions and arguments by both sides.

The Court ruled that if the accused had not shot the approaching, intent on attacking the tiger, he would have died. As a result, he shot the tiger to protect himself, which can be considered self-defense and was therefore lawful.

The Supreme Court clarified that when an animal is harmed or killed in self-defense, it becomes the property of the government. Anyone who has killed or injured a wild animal has no claim to the animal, regardless of who shot or killed it.

Naveen Raheja v. Union of India (2000)

When Naveen Raheja, a wildlife enthusiast, filed a lawsuit under Article 32 of the Indian Constitution, he pointed out that captive tigers in Bhubaneswar Zoo were at risk of being skinned alive, and that the Nehru Zoological Park in Hyderabad had skinned an adult tigress alive as well. Both in the protected forests and zoos, he expressed his concern for animal welfare. The Supreme Court was horrified by the terrible activities that people engaged in, causing animals to suffer in excruciating anguish.

The Court held that the zoo administrators had a duty to safeguard the tiger, however, the tiger was not protected from the cruelty that was perpetrated in the zoo. Inhumane treatment of voiceless animals is unacceptable and constitutes animal cruelty. It is punishable under the Prevention of Cruelty to Animals Act of 1960 if it is committed. The Court ordered the state to take the necessary procedures to ensure that such an incident does not occur in zoos or protected forests in the future.

T.N.Godavarman Thirumulpad v. Union of India (1947)

In the case of T.N. Godavarman Thirumulpad, the petitioner Godavarman filed a petition under Article 32 of the Indian Constitution, asking the Supreme Court to direct Chattigrah and the Union of India to take necessary steps to save the Asiatic Wild Buffalo, an endangered species, as well as to ensure that interbreeding between wild and domestic buffalo does not occur and that the genetic purity has been protected from contamination.

The Supreme Court directed the state of Chattisgarh to adopt the Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 in order to conserve the wild buffalo from extinction. For severely endangered animals and their habitats, recovery programs should be prioritized over conservation initiatives, and the recovery program’s goals are to protect wildlife outside of protected areas.

Ivory Traders and Manufacturers Association v. Union of India (1997)

The Petitioners challenged various amendments to the Wildlife Protection Act of 1972 that prohibited the importation of ivory goods in their petition. The Petitioners’ major argument, in this case, was that they were not covered by the required provisions of the Wildlife Protection Act of 1972 and that the Amendment Act No. 44 of 1991 did not cover them either. The Petitioners were primarily affected by the Wildlife Protection Amendment Act of 1991, which prohibited them from dealing or storing ivory taken from African elephants.

They claimed that they were simply traders who traded in ivory that was legitimately delivered to India, inflicting no harm to African elephants. They argued that the Wildlife Protection Act of 1972 and the Wildlife Protection Amendment Act of 1991 were unconstitutional because they infringed on their right to practice any profession or carry on any occupation, trade, or business as granted by Article 19(1)(g) of the Indian Constitution.

This case was decided by the Delhi High Court, which ruled that the ban imposed on the sale and trading of ivory items was not unreasonable or unconstitutional. The Court held that the restrictions placed under the provisions of the Wildlife Protection Act, 1972, and the Amendment to the Act were in accordance with the Constitution’s provisions and were not ultra vires the Constitution’s provisions.

The ban on the sale and possession of ivory was a fair restriction on the fundamental right to do business. The Court held that a statute enacted to safeguard an animal on the verge of extinction cannot be considered ultra vires to the Constitution’s provisions and that the amendment was made with the protection of endangered species in mind. The Court decided that such a law could not be construed as infringing on the rights provided by Article 19(1)(g) of the Indian Constitution.

Illegal trade of exotic species

Exotic species are the ones that are taken from their natural environment and shifted to a non-natural environment. These species of animals and plants are generally transferred by people from one place to another.

The illegal trade of exotic flora and fauna in India has increased to a great extent. The main trade in India is that of tortoises and birds particularly belonging to the parrot family and which are vulnerable. Due to the complete ban on the trading of Indian species, illegal trade of exotic species has flourished causing disastrous global environmental damages. The interest in trade in exotic species of birds has opened up illegal trade channels in India. These illegally traded exotic species are very easily sold in the pet market.

In June 2020, the Ministry of Environment, Forest, and Climate Change had issued an advisory to curb the import and possession of exotic species in India.

The advisory stated that since there is no clear data of the holders of such exotic species, they would collect the data through voluntary disclosure of the same within the next 6 months.

The aims for this disclosure are:

To provide better management of species.
To provide better veterinary care, housing, and other aspects of the well-being of the species.
To provide better management of zoonotic diseases.

Loopholes in the Wildlife (Protection) Act, 1972 with respect to illegal trade in exotic species

Zoonotic diseases, such as Covid19, developed in other species and are transmitted to humans (as well as other animal species) by direct or indirect contact. The Wild Life (Protection) Act of 1972 contains a loophole that has a direct impact on the development of lethal pandemics like the one caused by COVID-19.

While the Act governs trading in wild animals, it excludes exotic wild animals introduced into India. The act is applicable only to the trading of native animals protected by its six schedules. This gap has resulted in a dramatic increase in the commoditization and sale of exotic species.

Furthermore, the term “exotic animal” is not defined under any law prevailing in India. Although many species, such as monkeys and snakes, are protected under the Pet Shop Rules of 2018, exotic animals are still very easily sold in a pet shop or at a live wet market.

As per the law, pet shop owners are required to ensure that their suppliers of imported exotic breeds of birds and animals have all the necessary approvals or license from the Director-General of Foreign Trade along with a sanitary import permit and permission from the Regional or State Animal Quarantine and Certification Services. Furthermore, the import of live animals is done in a legal and reprehensible manner.

Despite all of the restrictions and rules, illegal trading in exotic animals continues to happen in both stores and online, using e-commerce platforms like Olx and Quikr, without being licensed by the State Animal Welfare Boards. All attempts to curtail the illegal wildlife trade fails due to a strong network of traders.

Licensing is also vital for public health since it assures safe, humane, and healthy circumstances for exotic animals, which is the first step in preventing the spread of dangerous zoonoses like Covid19.

Mitigation steps

To address the above-stated loopholes there are few steps as stated below:

Amending the Wildlife (Protection) Act to include not just CITES-listed creatures, but also exotic animals in need of protection.
Introduce a new law that addresses exotic species trade and criminalizes not only ownership but also possession of such animals, or
Intervention by the Supreme Court to fill in these loopholes until a new statute is enacted.

Instances of illegal trade of exotic species in India

Following are some instances of illegal trade in India:

In October 2017, a man was convicted for smuggling body parts of 125 tigers and 1,200 leopards in Madhya Pradesh.
In July 2020, a red Kangaroo, six Hyacinth Macaws, three Aldabra Giant Tortoises, and two Capuchin Monkeys were rescued in Cachar district in Assam from a private truck coming for Mizoram.
In January 2021, 30 exotic birds and a red-eared guenon were rescued from the Mizoram-Assam border town in the Kolasib district.
In February 2021, 80 exotic animals including rare species like leopard tortoise, red-footed tortoise, yellow, orange, and green iguana, bearded dragon, and albino iguana were rescued from the Friendship Bridge over the Tayo river near the India-Myanmar border in Champai district of Mizoram.

PIL for illegal trading of exotic species (2017)

In 2017, a PIL was filed by social activist Sanjay Shirke before the division bench of Chief Justice Chellur and Justice G. S. Kulkarni at Bombay High Court. Through the PIL, the social activist was seeking an immediate shutdown of a pet shop at Crawford Market because of cruelty towards animals and illegal trading of exotic species.

The Court ordered the ward officer and senior inspector of the area to check the license of all shopkeepers in Crawford Market that illegally sold animals and birds to ensure no illegal sale of animals and birds took place. The Court also ordered two secretaries to make surprise inspections to the market and report back in four weeks.

National Wildlife Action Plan for 2017-2031

The Third National Action Plan on Wildlife for 2017-2031 was published by India to outline the future Wildlife Conservation Road Map. The plan was first introduced in 1983, and then in 2002 to 2016, the third action plan follows on from the first. The third National Plan of Action on Wildlife is special because it is for the first time that India has acknowledged its worries about climate change in wildlife and emphasises the integration of measures to mitigate it and adapt to wildlife planning.

On the launch day of the Global Wildlife Program (GWP), environmental Minister Dr. Harsh Vardhan revealed the strategy. The GWP, which was started in 2015, is a World Bank partnership leading 19 nations to promote sustainability and conservation through fighting wildlife trafficking. Within the four-day conference, India will be able to learn about best practises in wildlife habitat management and minimise conflicts between people and animals.

The proposal was launched by the Environment Department in February 2016. This proposal was developed by a committee of 12 members chaired by former Minister JC Kala. The GWP, which was started in 2015, is a World Bank partnership leading 19 nations to promote sustainability and conservation through fighting wildlife trafficking. Within the four-day conference, India learned about best practises in wildlife habitat management and minimised conflicts between people and animals.

The proposal for Third National Action Plan on Wildlife for 2017-2031 was launched by the Environment Department in February 2016. This proposal was developed by a committee of 12 members chaired by former Minister JC Kala. In the conservation of all animals – uncultivated flora and fauna – which have ecological significance for the ecosystem and humanity, regardless of where they occur, the Plan employs a “landscape approach.” It emphasises the recovery of endangered wildlife species while maintaining their ecosystems.

The state has also stressed the business sector’s increasing participation in the conservation of wildlife. The strategy provides for enough and continuous funding to be made available for the implementation of the National Wildlife Action Plan, including corporate social responsibility resources.

Conclusion

India, the world’s seventh-largest country, is home to four of the world’s 36 biodiversity hotspots, making it one of the world’s most biodiverse regions. As a result, animal conservation and welfare in the country have taken on a significant position in recent years, from Bengal Tigers to Great Indian Rhinoceros. According to the Indian Constitution, animals must be protected and there are various animal welfare laws in India, including the Prevention of Cruelty to Animals Act 1960 and the Wildlife Protection Act 1972, as well as state-level laws prohibiting cow slaughter and protecting cattle.

Article 51A(g) of the Indian Constitution makes it a duty of every citizen to protect the natural environment and wildlife. Moreover, Article 48A provides a Directive Principle of State Policy to protect and improve the wildlife of the country.

The legislature and the judiciary have cooperated to safeguard wildlife and have issued judgments that highlight the importance of wildlife. Over the years India’s environment Jurisprudence has evolved to great heights.

To conclude, there are currently more than seven billion people on the planet, and that number is expected to continue to expand enormously in the coming years. The billions of people on the earth are consuming natural resources faster than ever before. It also threatens the habitat and existence of a wide array of animals and plants, including those that may be relocated for land development or used as food or in other human endeavors. Invasive species, climate change, pollution, hunting, fishing, and poaching are significant hazards to wildlife.

Today, it has become even more important to protect wildlife because the threat to it will eventually pose a question of the existence of humanity in the future.

References

https://heinonline.org/HOL/Page?handle=hein.journals/vantl36&id=1673&collection=journals&index=

https://www.traffic.org/site/assets/files/6284/handbook-wildlife-law-enforcement-india.pdf

https://legislative.gov.in/sites/default/files/A1972-53_0.pdf

https://ipsnews.net/business/2020/07/28/15-landmark-judgement-of-indian-judiciary-on-animal-rights/

https://blog.ipleaders.in/supreme-court-india-role-protecting-fauna-india/#Naveen_Raheja_v_Union_of_India_2001

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Does the presence of an arbitration clause in a contract with a State oust the jurisdiction under Article 226 : an analysis

By

Oishika Banerji

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September 10, 2021

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This article has been written by Vaibhvee Jangid pursuing the Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho.

Table of Contents

Introduction

In the case decided by the Hon’ble Supreme Court titled “UNITECH Limited & Ors. v. Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors.”, on February 17 2021, Justice D.Y.Chandrachud and Justice M.R.Shah deliberated and delivered an important decision that the presence of an arbitration clause in a contract with a State, or its Instrumentalities does not oust the jurisdiction of the High Court completely under Article 226 of the Constitution of India. Let us understand this through analyzing the above-mentioned case law:

Facts

There were three appeals that were filed before the Supreme court by Unitech Ltd. (“Unitech”); Telangana State Industrial Infrastructure Corporation (“TSIIC”); and the State of Telangana. The appeals were filed in response to a judgment dated April 1, 2019 of a division bench of the High court of Telangana.

The Andhra Pradesh Industrial Infrastructure Corporation Ltd. (“APIIC”) in September 2007 invited bids to “develop, design and construct” a multi-services township project in the area of 350 acres of land in Nadergul Village, Saroornagar Mandal, Ranga Reddy District.

Unitech Ltd. was the successful bidder. Accordingly, Unitech had to make the payment of Rs. 165 crores:

Payment of earnest money- Rs. 20 crores,
Project land cost- Rs. 140 crores, and
Project development expenses- Rs. 5 crores.

The whole contract was dependent upon the pending litigation concerning the project land as the matter was sub judice and thus APIIC cannot allot the land until then. This was even stated in the Letter of Award (“LoA”) issued by APIIC.

Unitech Ltd. paid the purchase price of the land in four installments of Rs. 35 crores in each installment. It started to pay from December 3 2007, when it accepted the LoA and thereby paid a total of Rs. 165 crores till January 25, 2008. Consequently, they executed a development agreement in August 2008 to execute the project.

The case of Pratap Karan vs. Govt. Of Andhra Pradesh

However, on December 19 2011, the Government of Andhra Pradesh lost the case in “Pratap Karan vs. Govt. Of Andhra Pradesh”, and thereby lost the title over the project land. Following the decision, Unitech made several communications to APIIC to clarify the position and to jointly explore possible solutions to the problem.

Subsequently, the state of Andhra Pradesh was re-organized into two states ie. State of Andhra Pradesh and the State of Telangana in June 2014 according to the Andhra Pradesh Reorganization Act, 2014. Following which Unitech addressed a letter to the newly-formed TSIIC- as a successor of APIIC and as the land was now a part of the State of Telangana- seeking its intervention in clarifying the actual status of the extent of the land awarded to them, the cases against the erstwhile APIIC, physical handover of possession with a clear title and compensation for loss of time and opportunity.

Appeal made in the Supreme Court

On October 9, 2015, the appeal made in the Supreme court by the State of Andhra Pradesh through Principal Secretary v. Pratap Karan also did not bear fruit as the Supreme Court upheld the judgment of the High court of Andhra Pradesh that it does not have the title over the project land. After this decision, Unitech made a request to APIIC and TSIIC on October 14 2015, to refund the entire amount given to them for the said project plus the interest and damages that have accrued because of the non-completion of the contract.

Legal Tussle of Unitech, State of Telangana and TSIIC

Initially, Unitech had filed a writ under Art. 32 before the Supreme court but was disposed of, while it granted liberty to move the High Court under Art. 226. A Writ Petition under Article 226 was instituted before the High Court of Telangana seeking a refund of Rs.165 crores together with interest at the SBI Prime Lending Rate (“SBI-PLR”) from the date the payments were made.

Consequently, Unitech filed a writ petition in the High court of Telangana and a single judge bench gave its judgment on October 23, 2018, it held that Unitech is entitled to Rs. 165 crores (the payments it made) with interest from the date it started making these payments ie. from 2007 onwards but, thereafter the State of Telangana and TSIIC filed an appeal against the aforementioned judgment, thereby a division bench of the High Court heard the matter. It also held that Unitech is entitled to Rs. 165 crores plus the interest but the division bench differed in the calculation of the interest. It said that “the interest would not be calculated from the date of payments but would be calculated from the day Unitech asked for the refund for the first time ie. October 14, 2015.”

Thus Unitech, TSIIC and the State of Telangana filed an appeal under Article 136 of the Constitution in the Supreme court to unwind the confusion caused by the two judgments of the High court and to settle the dispute.

Issues

Whether the writ petition under Article 226 is maintainable in a contractual matter between State or its Instrumentalities and a private party having an arbitration clause in the agreement?
Whether interest on the total purchase price be calculated from the date when Unitech asked for the refund or from the date payments were made?
How should the liability be apportioned between the Instrumentalities of the State of Andhra Pradesh and Telangana?

Court’s observations and analysis

With respect to issue no. 1, the Supreme Court cited precedents to make the ground clear that it is not barred to approach a High Court under Art. 226 in a contractual matter having an arbitration clause in it. However, the court remarked that when there are other remedies available with the parties to settle their dispute, then they should first avail themselves. This is because the High courts are already engrossed in a lot of matters and everybody is aware of the pendency of the cases in India, because of which there is the development of alternative methods to settle the disputes eg. Arbitration, mediation, negotiation etc. These methods are in vogue today because they are easier, less time-consuming and less formal.

That’s why the court thinks it apt to first avail those remedies and if even after those alternative methods are unable to settle the dispute, then the High court is there to take the matter. Also, it must be noted whether they should avail remedies under Art. 226 or not depends upon the facts and the circumstances of each case as every case is different. The court said that the public law remedy is available for enforcing legal rights subject to well-settled parameters.

Cases referred to

The Supreme court referred to its judgment in ABL International Ltd. v. Export Credit Guarantee Corporation of India. They referred to, analyzed it and thereby concluded, “Writs under Art. 226 are maintainable for asserting contractual rights against the State, or its Instrumentalities, as defined under Art. 12 of the Indian Constitution.”
The interpretation given in the above case was followed by a three-judge bench decision of the Supreme court in State of U.P. v. Sudhir Kumar and Popatrao Vynkatrao Patil v. The State of Maharashtra. The decision in ABL International held that “the plenary powers under Art. 226 must be used with caution when other remedies have been provided in the contract. This plenary power under Art.226 cannot be exercised by the court on the exclusion of other available remedies unless such actions of the State, or its Instrumentalities are arbitrary and unreasonable as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the court thinks it necessary to exercise the said jurisdiction.” Through this interpretation of the court, the arbitration clause between the parties did not act as a bar to file a writ under Article 226 and the action of TSIIC was found to be unconstitutional as they did not act in an equitable and just manner. Thus the writ was maintainable.

3. As to issue no. 2, the Supreme court referred to the terms in article 17.6 of the agreement which talks about what would happen to the contract when a ‘political force majeure event’ takes place, it says that, “the developer ie. Unitech Ltd. can issue a notice of termination if the event materially alters or affects the project continually for more than nine (9) months.” According to the facts discussed above, a lot of time had passed since the parties entered into the contract but as the affected party (Unitech) suffered huge financial loss, it made sense that the payments made by them need to be refunded with duly calculated interest.

Additionally, Article 14.3.1 of the agreement stipulates that “in the event that APIIC/Government of Andhra Pradesh is not able to execute the sale deed in favor of the developer in respect of the land within the time specified, APIIC shall, if so required for the developer, make compensatory payment subject to the court orders.” Compensatory payment accordingly is defined as the amount comprising the total payment made plus the interest calculated at the SBI-PLR on the total purchase price “from the date the first payment was made towards the project land.” Accordingly, the court held that since the former State of Andhra Pradesh and subsequently the State of Telangana did not have the title over the land because of the case decided by the Supreme court, this acted as a political force majeure event and as it continued for more than nine months, it entitled Unitech to claim the refund with compensatory payment as contractually agreed between the parties. Accordingly, the issue is answered that the interest will be calculated from the date of the first payment was made ie. December 3, 2007, and not from October 14 2015, when the refund was first asked for.

4. As to issue no. 3, the Supreme court did not adjudicate this issue and elucidated that TSIIC is liable to pay the amount to Unitech but subsequent action regarding how to apportion the amount between the two States depends upon it and is at liberty to take whatever action to get a remedy but this bench of the Supreme court did not express any final opinion on this issue. Though it advised that it can be apportioned according to Section 53(1) of the Reorganization Act, 2014.

Conclusion

Through this case, we understand that the presence of an arbitration clause in a contract between State entities and private entities does not bar the jurisdiction of the High court under Art. 226. This judgment tells that the plenary powers of the High court under Art. 226 should be used with absolute caution as when a State or any of its Instrumentality enters into a contractual relationship with a private body it must not violate its constitutional mandate under Art. 14 of the Indian Constitution to act equitably. It may happen that private parties may straight away invoke the writ jurisdiction and bypass the arbitration clause but then the High courts have to use their sagacity to determine on a case-to-case basis whether a writ is maintainable or not when other remedies are provided in the contract. Also, a State is more powerful than a private entity and the latter comes into an agreement with the State because of its goodwill and reputation. Thus it is not right for the State entities to enter into commercial contracts which may be detrimental to the interests of the other party. Therefore, this judgment promotes healthy public-private partnerships in the future.

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Government’s lethargic attitude towards senior citizens in India and the reparative role of the judiciary

By

Sneha Mahawar

-

September 10, 2021

0

Senior citizen — Image source - https://bit.ly/3l3Ls1S

This article is written by Somya Jain, from the Vivekananda Institute of Professional Studies. This article majorly discusses the apathetic behaviour of the government towards the senior citizens and the growing judicial activism on the current stance.

Table of Contents

Introduction

Primitive Indian society has established a strong pillar in ensuring the security and well-being of senior citizens. Their expertise, knowledge and experience were much appreciated by the then youth of our country. The concept of joint family found its place in traditional society but over the years it lost its hold and is on the verge of eventually withering away. Ageing is something that cannot be prevented and is treated as a second childhood. Generally speaking, old age brings with it responsibilities on the daughters and sons to fend their parents with all the love and devotion as their parents once did for them. The role of the senior citizens in a family is substantial for proper guidance and discipline. But, in recent times, people have grown to be hesitant to take up the responsibilities of their aged parents.

With modernisation and westernisation, individualistic thoughts paved the way for establishing nuclear families. People are choosing to live separately from their parents leaving the elderly in a state of hysteria and aloofness. At an age where senior citizens require mental and physical support along with care and love from their beloved ones, treating them in ways that are incomprehensible, seems to set a trend in the present society. Apart from the above problems, senior citizens in India have also faced an escalating number of physical violence cases against them. Here the role of the government towards the issue cannot be denied. Considering the increasing problems faced by the aged people, it has become necessary that a robust system with the underlying laws ensuring the protection of the senior citizens at all levels should be established. Government has time and again failed to provide complete protection even though potent laws have been instituted in society. This calls for clarification and effective implementation of laws at both municipal and international levels.

The plight of the senior citizens

Senior citizens have been facing multiple problems in society to which there seems to be no end. According to Age Well Foundation on “Human Rights of Elderly in India Survey”, the problems faced by senior citizens can be distinguished under main heads as follows:

Health problems;
Social or Family problems;
Legal problems;
Economic problems.

Briefly enumerating the above problems, we shall understand the prevailing problems faced by the senior citizens.

Health-related problems

No doubt ageing brings with it a bundle of health problems for many senior citizens. There are various chronic diseases that are associated with the factor of age. Senior citizens are more prone to diseases like cardiovascular illness, arthritis, cancer, diabetes, hypertension and many more. Treatment of these kinds of diseases calls for good fortune as the medicines are pretty expensive for a normal man to invest in. The family members who are bound to fend for their parents, in such circumstances, treat their parents as a liability and a burden on themselves, thereby leaving them all alone.
In addition to the physical problems, senior citizens also suffer from mental illness. When senior citizens do not receive proper care and attention rather they are deserted to support themselves in the need of the hour, they suffer from several psychological diseases like depression, anxiety, dementia etc.

Social or family problems

The generational gap has been one of the prominent factors in aggravating the social problems for senior citizens. With advancements in time, industrialisation and westernisation influenced the younger generations to have a more individualistic approach towards life, thereby, swaying them away from elderly individuals.
As per the trend in the society and the behavioural changes in the attitude of the people, they are more drawn towards materialistic things rather than their loved ones. Nowadays, people are fighting over money and their rights over property, neglecting their aged parents. According to a survey in 2016, around 66% of the cases are land-related disputes and among this around 80% of them emerge from ownership or inheritance disputes. Further, Helpage India, an NGO, surveyed that around 53.2% of all elderly abuse was due to property and inheritance disputes.

Legal problems

Although the government has initiated various welfare schemes for the benefit of senior citizens, it does not find its place in the present times, the implementation of these policies has sought to the apathy of the government towards senior citizens. Further, the laws are not up to the mark that would provide complete protection to them.
In addition to this, senior citizens, more precisely those who are based in rural areas, are unaware of their rights against the actions practised by their family members. This lack of knowledge acts as a constraint in providing assistance to senior citizens by all means.

Economic problems

With the increasing cost of living in a society, it has become difficult for senior citizens, having no adequate income, to survive. Although pensions are one such source, it is not enough to sustain the growing needs of aged people. The cost of their treatment along with other necessities are not sufficient. Therefore, they have to depend on others to provide them with financial support.
Generally, it is the female counterparts who suffer the most. As they are precluded from earning any income due to the social stigmas, it becomes extremely strenuous for them to survive. Further, the policies established by the government do not tackle the lack of social security among senior citizens. Like in most government offices the retirement age is taken to be between 60-65 years.

Welfare schemes initiated in favour of senior citizens

The government has taken the initiative to establish several schemes for the benefit and protection of senior citizens from the evils in society. Some of the important schemes are discussed below.

Overview of the welfare schemes

The welfare scheme introduced over time can be determined under different heads. These are:

Legislations

The Constitution of India under Part IV, which deals with Directive Principles of State Policy, also states that it is the duty of the state to ensure the protection of the rights of the aged people. Article 41 entitles the government to provide public assistance and secure the right to work for certain categories of people including senior citizens.
As per Section 125 of the Code of Criminal Procedure, it is mandatory for children to maintain their parents provided that it is shown that the parents are neglected by their children and are unable to maintain themselves. The section has extended the scope of responsibility to include married daughters as well.
Section 20 of the Hindu Adoption and Maintenance Act 1956, states that if the parents are unable to maintain themselves from the earnings or other property then the children are responsible for providing them with maintenance.
Muslim law also establishes the necessity of the children, both son and daughter, to maintain their aged parents. It states that if parents have to maintain their children then the same goes for the children to maintain their parents.

Government schemes

The Integrated Programme for Older Persons is a scheme introduced by the Ministry of Social Justice and Empowerment which aims to increase the lifestyle of senior citizens by providing them basic amenities like food, shelter, medical care etc.
Rashtriya Vayoshri Yojana is yet another scheme for providing Physical Aids and Assisted-living Devices for Senior citizens belonging to the Below Poverty Line (BPL) category and is fully funded by the central government.
The Pradhan Mantri Vaya Vandana Yojana is a retirement cum pension scheme for senior citizens above the age of 60 years announced by the Indian Government. For the financial year 2021-22, the Scheme shall provide an assured pension of 7.40% p.a. payable monthly. This assured rate of pension shall be payable for the full policy term of 10 years for all the policies purchased till 31st March 2022.
The National Programme for the Healthcare of the Elderly provides for facilities in the district hospitals like opening geriatric OPD and ward, community health centres etc, especially for senior citizens.
National Policy on older persons initiated in the year 1999, aims to ensure financial and food security, health care, shelter and other needs of older persons, equitable share in the development, protection against abuse and exploitation, and availability of services to improve the quality of their lives. The policy also covers issues like social security, intergenerational bonding, family as the primary caretaker, the role of Non-Governmental Organizations, training of manpower, research and training.

Pension Schemes

National Pension Scheme is a voluntary and long-term investment plan for retirement under the purview of the Pension Fund Regulatory and Development Authority (PFRDA) and Central Government. It is applicable for all employees from the public, private and even the unorganised sector. It encourages people to invest a portion in their pension account at regular intervals during employment. Tax benefits are also provided on it.
The Atal Pension Yojana mainly aims at the unorganised sector. It provides security to the Indian citizens from any illness or disease in old age. It provides for getting an option of a fixed pension after retirement with 50% of the contribution made by the government over and above the contribution made by the person himself during his course of employment.
The Indira Gandhi National Old Age Pension Scheme was introduced by the Ministry of Rural Development of India in association with the National Social Assistance Programme. In this scheme, senior citizens above the age of 60 years will receive a monthly pension and this pension is not contributed by the receiver himself.

Outline of Maintenance and Welfare of Parents and Senior Citizens Act, 2007

The Maintenance and Welfare of Parents and Senior Citizens Act (hereinafter 2007 Act) came into existence in the year 2007. The main objective behind the Act was to provide maintenance to senior citizens along with the protection of their life and property. In addition to this, the Act also establishes Maintenance Tribunals for speedy disposal of cases related to senior citizens. Further, the Act also mandates the constitution of old age homes in every district. The preconditions for a senior citizen to claim advantage under this Act are that the person is unable to maintain herself/ himself from their income or property and the age of the person is above 60 years. Some of the essential features of the Act were:

Generally, adult children or grandchildren are liable to maintain elderly persons. But if a senior citizen does not have children or grandchildren he can claim maintenance from any relative who is either in possession of the property or will inherit the property after the death of the senior citizen.
The Act mandates that the maximum maintenance provided to senior citizens will be Rs. 10,000 per month.
The complaints regarding the matter shall be dealt with by the Maintenance Tribunal on the representation made by either the party or relative or by the court taking the case suo moto.
No party to the proceeding will be allowed to be represented by a lawyer. However, senior citizens can avail the services of maintenance officers appointed by the state government.
Any person who intentionally abandons a senior citizen will be charged with a fine of Rs. 5,000 or imprisonment for 3 months or both.
Further, the Act casts a duty on the state government to arrange for separate queues and beds in hospitals for senior citizens.
Every district must have at least 1 old age home for the poor and needy senior citizens and it should be able to accommodate a minimum of 150 people.

It is to be noted that states in accordance with the circumstances can amend their respective state laws for senior citizens. The State of Delhi brought several amendments to the said Act with respect to the state in the years 2009, 2010 and 2016. In the 2016 amendment, the amendment stated that the parents can evict negligent sons or daughters from their self-acquired home in 21 days by giving a written complaint to the Deputy Commissioner. There is no need to file a lawsuit. However, the children will also get a chance to explain their stand which, if found unsatisfactory, can lead to an eviction notice.

Government’s sluggish behaviour towards elderly people

Government plays one of the most essential roles in providing protection and security to senior citizens. Although it may seem on the face of it that the government has implemented several schemes for the betterment of elderly persons, the facts state the opposite of the same. The government has failed miserably to provide assistance to people who are the most vulnerable community of society.

Pension, being the sole income for many senior citizens, did not find its way through to these people. This income has been denied for long periods and the negligent behaviour of the government adversely affected the living conditions of senior citizens by deteriorating their standard of living. There are many instances that caught the limelight and were brought to the general public. In a recent case of State of Andhra Pradesh v. Dinavahi Lakshmi Kameswari (2021), the Court, considering the delay made by the state government in providing salaries and pensions to government employees held that these are the rightful entitlements and should be provided without any delay. The Court further upheld that pensions are given for the past year services and thus forms the right to the entitlement of the pensioners and should be accorded as per the rules and regulations in the state. Thereby, the Court ordered the state government to render the appropriate payments along with additional interest on the same.

The government, as promised, also failed to provide speedier disposal by establishing efficient maintenance tribunals. As per the Maintenance and Welfare of Parents and Senior Citizens Act 2007, every state government was responsible for setting up separate beds and queues in hospitals. Apart from that, every district mandatorily requires the constitution of at least 1 old age home. But many citizens belonging from different states have complained about the government’s apathy towards senior citizens as the implementation of the Act seemed to be rather unresponsive from the government’s side.

In a landmark judgment of Ashwani Kumar v. Union of India (2019), the Supreme Court observed that the government has failed to perform its duty under the 2007 Act. While citing various non-compliance of provisions under the Act by the government, the Court directed some measures to be acknowledged and performed by the government. They were:

The Court directed the Union of India to obtain information from every state and Union Territories regarding the number of old age homes in each district of the country and file a Status Report in this regard.
The Union of India was directed to gather information from every state government regarding the medical and geriatric care facilities which have to be made available for the senior citizens.
The Union of India was further directed to incorporate a plan of action for making people aware of the 2007 Act and rendering publicity to the same.

Apart from the above orders the Court further urges the central government to issue appropriate directions to the state governments for the effective implementation of the provisions of the MWP Act and the progress of such implementation shall also be reviewed. The Court also added that the schemes for the senior citizens are old and need a change and overhaul by the government. The government should relook at the pension scheme as well and try to match it with the present economic capacity of the centre and the states.

A PIL petition filed by Pawan Kumar and 14 other residents of Girinagar complained about the functioning of an old age home in the Sai Locality. In this case, the High Court of Karnataka held that a complete failure has been committed on the part of the state government to comply with its statutory obligations under the 2007 Act. The Court while interpreting the 2007 Act stated that even though “may” has been used in the provision to establish old age homes in every state yet it will be construed to be a mandate on the state government as the noble objective of the parliament was to provide protection to senior citizens and it can only be observed by mandatorily following the provisions. Noticing the lethargic attitude of the state, the court directed the state to prescribe a scheme, as per Section 19(2) of the 2007 Act, for the management of old age homes for senior citizens.

In another case of Dr. Krishna Pal Singh (Senior Scientist) & Another Vs. State Of U.P (2020)., the Allahabad Court observed that the government has failed in implementing the provisions of the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 framed under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Court observed that the state government has not directed the District Magistrate (hereinafter DM) to implement the provisions of the Act as it was obligatory on the DM to ensure that the provisions of the said Act are properly carried out. Further, no steps were taken to establish old age homes in every district. The Court also showed displeasure on the part of the state government by not directing the DM to provide guidelines for the protection of life and property of senior citizens.

Role of judiciary in uplifting the status of senior citizens

The judiciary has played an active role in liberally interpreting and expanding the scope of the 2007 Act. Understanding the pain and anguishment of senior citizens, the courts have construed each and every aspect of the dispute to provide maximum protection to them. There are several cases proving that the judiciary has been fighting time and again to uplift the status of senior citizens.

In the case of Smt. Darshna v. Government of NCT of Delhi and Ors. (2018), the Court held that as per the 2007 Act and the Rules framed by the Delhi government a senior citizen can evict his/her son, daughter or legal heir from his property irrespective of whether it is an ancestral or self-acquired property on account of ill-treatment and protect the life and property of the senior citizen.

In the case of Sandeep Gulati v. Divisional Commissioner (2020), the Delhi High Court held that for an eviction suit filed by a senior citizen, he is required to merely show that his property needs protection. There is no obligation for a senior citizen to prove that he/ she needs maintenance or has been ill-treated by his/her son or legal heir. The Court further interpreted that the scope of this Act is not to punish the children and therefore, once it is established that the children have no right over the property of the parents, the fact that the parents do not wish to have their children staying with them is enough for invoking the Act and the Rules.

In another case of Vinay Verma v. Kanika Pasricha and another (2019), the Delhi High Court took a step forward in dealing with cases of senior citizens that are in conflict with other laws. In the present case, the Court observed that the claim of a daughter-in-law for residence in a shared household is often conflicted with the rights of in-laws for exclusive possession of their home. The Court considering the need to harmonise both the laws creates a balance between the two laws. The Court pointed out two possibilities. According to the first possibility, the relationship between the parents and their children is to be observed and whether the daughter-in-law was living as a part of a joint family. If the relationship between them is strained then the parents can file for eviction against the son or daughter-in-law. As per the second possibility, if the relationship between the parents and their children is peaceful enough or the parents collude with the son to evict the daughter-in-law then it is the duty of both the husband and the in-laws to maintain her and provide her shelter. Further, the Court also stated that if the son is ill-treating the parents then unconditional right of eviction is granted to the parents so that they could live peacefully. Lastly, if the son has abandoned his family along with his wife and children and if the wife was living in a joint family then the parents are entitled to provide her shelter for some time till she seeks other remedies for herself.

On similar grounds, the Supreme Court in the case of S. Vanitha v. Deputy Commissioner, Bengaluru Urban District (2020) held that the right of eviction granted to senior citizens should be provided when expedient and necessary, but there should be no overriding effect of the 2007 Act on other acts like Protection of Women from Domestic violence Act 2005. The Court observed that even though the Senior Citizens Act of 2007 has a non-obstante clause but in the event of a conflict with special Acts the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise. Therefore, Section 36 of the DV Act 2005 should be harmoniously construed with Section 3 of the Senior Citizen Act 2007.

In another recent case Ramapada Basak vs. The State of West Bengal (2021), the Calcutta High Court emphasised that the right of a senior citizen to exclusively reside in his own house must be viewed from the prism of Article 21 of the Constitution of India. It is established law that children and their spouses living in a senior citizen’s house are licensees at best and that their licence to reside at the senior citizen’s residence comes to an end as soon as the senior citizen ceases to be comfortable with the children and their families. Another issue that arose, in this case, concerned whether the availability of an alternative remedy under the provisions of the Maintenance and Welfare of Parents Senior Citizens Act, 2007 would bar the petitioners (senior citizens) from approaching the High Court in its Writ jurisdiction. It was held that the principle of an alternative remedy cannot be strictly applied to Senior Citizens and a Writ Court must come to the aid of a Senior Citizen in a given case.

Analysing the recent amendments

There were many underlying drawbacks that the 2007 Act faced. The judiciary urged the government to establish more robust and comprehensive legislation which would protect the rights of the senior citizen in an efficient manner. Thereby the government came up with the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019. This bill is set to fill the gaps created by the 2007 Act. some of the essential features of the Act are:

The amendment widens the scope of the definition of children. The bill included not only children and grandchildren, as observed in the 2007 Act, it also includes step-children, adoptive children, children-in-law, and the legal guardian of minor children.
The Bill has also expanded the scope of parents which would now include not just biological, adoptive, and step-parents but parents-in-law and grandparents also.
The definition of maintenance is also enhanced. Maintenance now includes the provision of healthcare, security and safety of parents to lead a peaceful and a secured life with dignity. The earlier Act was restricted to merely provide the parents and senior citizens with basic amenities like food, clothing and shelter.
One of the most prominent changes sought under the bill is the removal of the cap of Rs. 10,000 as maintenance charge. Thereby, whence the bill will come into existence then more than Rs. 10,000 can be given as maintenance. But the Maintenance Tribunals prior to imparting the amount need to ensure the standard of living and earning of the parent or senior citizen as well the earnings of the children.
The number of days in which children and relatives must pay the maintenance amount will also be reduced from 30 days to 15 days.
Instead of establishing old age homes, the state government under the bill will now have to establish senior citizens care homes and minimum standards have to be prescribed by the central government for these homes.
The Bill further requires that every police station must constitute one officer to deal with cases related to senior citizens and parents. A special police unit must also be formed in every district by the state government.

Conclusion

The increasing population bears with it the responsibility of the government to ensure their protection and security. For a very long time, senior citizens of India have been suffering from various predicaments. The government has also turned its eye and also carried a lethargic attitude towards providing the senior citizens with the necessary help. No doubt the government has initiated a plethora of schemes on paper for the benefit of the elderly section of society, but in reality, these schemes failed miserably thereby adversely affecting the interests of the senior citizens. It is high time when the government needs to buckle up and provide a robust system for the protection of the most vulnerable sector in our country.

References

Government’s apathy towards Senior Citizens – A Socio-Legal Critique | KnowLaw

Project Report on the Rights of the Elderly_NUALS.pdf (nhrc.nic.in)

Arun.pdf (dbrau.org.in)

Protecting the Elderly in India: Hits and misses under the recent legislative and judicial framework (barandbench.com)

The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 (prsindia.org)

Maintenance and Welfare of Parents and Senior Citizens Act: An Inadequate Care Regime – Law School Policy Review & Kautilya Society

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The evil of child marriage : provisions, loopholes, and challenges

By

Diganth Raj Sehgal

-

September 10, 2021

0

This article is written by Udita Prakash, a student at UPES, Dehradun. This article is a critical analysis of child marriage across India and vis-a-vis Hindu Law.

Introduction

Child marriage has been a deep-rooted and very prominent issue in Indian society. It is not only an activity that violates the law, but it also grossly violates the human rights of the children involved in the marriage. Child marriage has been practiced to lessen the educational and economic burden of the girl child on her parents and is still prevalent in various states, Rajasthan, Uttar Pradesh, and Madhya Pradesh being the major states. The marriage of a girl before the age of 18, and of a boy before the age of 21 can be detrimental towards them in various ways. Child marriage is a violation of human rights. Every child has the right to be protected from this harmful practice, which has devastating consequences for individuals and society. Abolition of child marriage is now firmly on the global development agenda, especially through its inclusion in target 5.3 of the Sustainable Development Goals (SDGs), which aims to eliminate the practice by 2030. Regardless of gender, marriage before adulthood is a violation of the rights of the child. The scope of this article is the challenges faced to bring child marriage to an end, and also the lack of awareness among the people about child marriage. I have dealt with the history of child marriage till the current scenario.

Child marriage

The practice of child marriage is regarded as a grave violation of the human rights of the children by UNICEF. This practice also goes against the provisions of the Constitution of India, as it compromises on various aspects like the right to education, equality, etc. The major victims of this practice are minor girls, who are married off at a young age. Child marriages are practiced in communities that are socially, economically, and educationally backward, and the major reason for marrying off a daughter at a young age is to maintain stability without having to spend too many resources on her education or well-being. The concept of child marriage impacts the mental as well as physical health of minors. For a minor bride, the institution of marriage before attaining majority also affects her sexual health, they are deprived of critical nutrition too, which subsequently affects their mental well-being. Child marriages also hamper the overall development and growth of minors, so their education might come to a halt as well. Early pregnancies also increase the rate of infant and maternal mortality. Early pregnancy and lack of proper nutrition during the gestation period also pose higher risks of fetal deformities and diseases. All this also deprives them of better educational and employment opportunities in the future. At present, even after seventy-five years of Independence, the incidents of child marriage are rampant. What is the bigger problem is that the majority of these marriages still go unnoticed in the nation. Many schemes and plans have been made by the Government, but their implementation still fails to prevent a lot of girls from being married at an age below 18.

History

Child marriage has existed as a social evil in society for a very long time. The time since when it was performed is uncertain, but the age of marriage has evolved over time. In the older times as well, the major victims were girls, who were married at a very young age. Patriarchy is so deep-rooted that even today, minor girls bear the major brunt of this social evil. Under the uncodified provisions of the Hindu Law, different schools prescribe different ages for getting married. The Mitakshara School gives an age of sixteen years and as per the Dayabhaga School, the completion of fifteen years of age is considered to be mandatory for the institution of marriage.

When the Indian Penal Code, 1860 was initially drafted in 1846, sexual intercourse between spouses under the age of 10 years was considered to be an offence. In the case of Queen Vs. Haree Mohan Maythe, (1890) a young girl of 11 years of age died due to injuries incurred due to sexual intercourse with her husband, whose age was 35 years.

Such incidents became imperative to observe the repercussions of child marriages on the overall health of the spouses. Subsequently, in 1891, the age was raised from 10 years to 12 years. This was once again changed in 1921 when the age was raised to 13. This was done to prevent girls from immature cohabitation. Thereafter, a Bill was introduced by Rai Sahib Sarda. In accordance with this Bill, a restriction was implied on the solemnization of marriages of minors. This Bill was called the Sarda Bill and was later included in the Child Marriage Restraint Act, 1929.

At numerous times, the doctrine of factum valet has been applied to the concept of child marriage. The doctrine says that an established fact cannot be altered by subsequent explanations. If a marriage has been instituted between two people, even if one of them is a minor, the fact is established, and no law that is contrary to the same can change it.

In a number of cases in earlier times, the validity of child marriages was upheld. In the case of Venkatacharyulu v. Rangacharyulu, (1890) the Court upheld a child marriage, as the solemnization of marriage is considered to be very sacred in the Hindu religion. It binds the life of the two people as it is completed by the ‘saptapadi’, hence creating a sacred bond between the two people. Hence once this tie is created, it cannot be undone. The institution of marriage is sacred, and cannot be broken like a normal contract. Hence even if the marrying party is a minor, or of unsound mind, the marriage is valid in nature. The case of Naumi v. Narottam (1983) also upheld child marriages and it was stated that they are neither void nor voidable and are valid in nature. Seeing this general approach of the courts with respect to child marriages in the country, the 59th Law Commission Report suggested that even though the stance of the legislative provisions was not concrete, the concept of child marriage should be discouraged and prohibited. Thereafter, in the case of Panchireddy Appala Suramma V. Gadela Ganapati (1974), a pivotal decision was observed, wherein the Court said that child marriages were void ab initio and could be declared to be null and void by approaching the Court. Similarly, in the case of Krishna Devi v Tulsan Devi (1972), the validity of child marriage was not accepted by the Court. However, in the case of P. Venataramana v. State of Andhra Pradesh (1976), the Court once again upheld the validity of child marriage. This was done with respect to the fact of the legitimacy of the children being born out of such marriages.

Hence the history is full of cases, wherein the stance of the court has varied at different points and with different circumstances, owing to the ambiguity of the provision for the legality of child marriages.

The legislative framework in India

Hindu Marriage Act, 1955

In 2006, India passed the Child Marriage Prohibition Act (PCMA) to combat the widespread practice of child marriage. The PCMA prohibits the solemnization of child marriage of those under 18 for girls and 21 for boys and allows marriages of children that have already taken place to be voluntarily annulled by the child who was part of the marriage within two years. The Hindu Marriage Act, 1955 is a grundnorm that is followed by the majority of Hindus in India for the provisions related to the institution of marriage. It lays down provisions for the solemnization of marriage between Hindus. Section 5(iii) of the Act establishes a requirement for the solemnization of marriage. The requirement being the completion of 21 years of age of the bridegroom, and the completion of 18 years of age of the bride at the time of marriage. At an earlier time, this prescribed age was 15 for the bride and 18 of the bridegroom respectively, and before the year of 1978 marriages of children below these ages were considered to be valid with the condition precedent of the consent of the guardians of both the parties. However, post the amendment, the requirement of consent of the guardian became redundant as the age of 18 and 21 do not require consent.

Section 5 of the Hindu Marriage Act, 1955 provides the grounds required for the solemnization of marriage between two Hindus. It also gives provisions for void marriages, as well as voidable marriages (marriages considered and declared to be null and void by the consent of one party). Hence any marriage that is solemnized out of the scope of Section 5 is declared to be void or voidable in nature in accordance with the provisions of Section 5.

Section 11 states the conditions for the marriage being void and states that the marriage is null and void since the beginning if it contravenes clauses iv or v of Section 5 respectively.

Section 5(iv) deals with prohibited relationships, whereas Section 5(v) states the sapinda relationship between individuals. The sapinda relationship is determined through the lineage of both partners. If they have common ancestors, three from the maternal side or five from the paternal side, they are considered to be sapindas, i.e., associated with the same point. One exception wherein marriages falling between prohibited relationships or sapinda relationships are considered to be valid in case it is permitted by any custom or usage.

Section 12 deals with marriages that are voidable in nature, and certain grounds have been provided for the same. These include:

Non-consummation owing to the impotency of the partner;
Forceful consent of the party/guardian;
Pregnancy of respondent by someone else.

Section 5(ii), i.e. the party is unable to give valid consent owing to unsoundness of mind, mental disorder making him/her unfit for marriage and procreation, insanity. It is observed that the sections do not talk about the status of child marriage expressly. Section 5 however sets up a minimum age for solemnization of a marriage between two people. Section 18(a) of the Hindu Marriage Act, 1955 prescribes the punishment for not following the minimum age criteria stated under Section 5(iii) respectively. It gives the punishment of rigorous imprisonment of two years and a fine extending to rupees one lakh, or both.

Validity of child marriage under Hindu Marriage Act

Even though it has been mentioned in the Hindu Marriage Act, 1955 that the minimum age for getting married for a girl is 18, whereas for a boy is 21, and it also prescribes punishment for incidents where these criteria are not followed, there are certain other provisions under the Act that make the situation dicey and pose questions upon the validity of child marriages.

Section 13 of the Hindu Marriage Act gives different grounds for divorce. Clause 2(iv) provides a ground of divorce wherein a girl who is married before the age of fifteen refuses to believe in the institution of marriage between the age of 15 to 18 years. This is irrespective of the consummation of the marriage. Hence, the provision provides a slippery slope to the status of child marriages, as the ground for divorce would only be pertinent if the marriage is of a valid nature.

Furthermore, if the girl does not repudiate the marriage in the given time frame, i.e. before attaining the age of 18, the marriage continues to stay valid post her majority as well. Another anomaly is the provision of restitution of conjugal rights under Section 9 of the Hindu Marriage Act.

In the case of Mohinder Kaur v. Major Singh, (1971) it was contemplated that the wife left her husband and started living with her parents, subsequent to which he filed a suit for restitution of conjugal rights under Section 9. The contention of the wife here was that she was only 11 years of age when the marriage was solemnized, and hence it was in contravention with the provision of Section 5(iii) of the Hindu Marriage Act, 1955. However, it was observed that the only punishment prescribed for the contravention of this provision was imprisonment and fine (or both) in accordance with Section 18. The Court observed that the Act nowhere specified that the marriage would be affected anyhow. Hence the plea for the restitution of conjugal rights by the husband was accepted by the Hon’ble Court.

Prohibition of Child Marriage Act, 2006

Prohibition of Child Marriage Act, 2006, the objective of this Act is to prohibit the solemnization of marriage when the groom or the bride is under the minimum age for marriage (18 years in the case of girls and 21 years in the case of boys). To ensure that child marriage is eradicated from society, the Government of India enacted the Prevention of Child Marriage Act of 2006 replacing the previous legislation of the Child Marriage Restraint Act of 1929. This new law is equipped with enabling provisions to prohibit child marriage, protect and provide relief to victims, and enhance punishment for those who instigate, promote, or solemnize such marriage.

The Child Marriage Restraint Act, 1929 – why was it repealed

The Child Marriage Restraint Act, 1929, contains provisions restricting marriages, the current law prohibits child marriages, while the Child Marriage Prohibition Act 2006, has a threefold purpose: to prevent child marriages, protect children from such marriages, and prosecute offenders. It also declares child marriage as a recognizable crime and not subject to bail. Unlike the 1929 law, it also annuls this solemnization. If we take a look at recent times, we will realize that even though we have had laws prohibiting child marriages for 90 years, we have not managed to eradicate this evil in its entirety. These incidences of child marriages are highest among the socially, culturally, and economically backward sectors. Even today, child marriages account for approximately 27 percent of marriages in our country. Keeping in mind the absence of clear laws regarding the status of child marriages, the area is rather grey rather than a clear black and white.

Constitution of India

The Supreme Court of India has recognized that child marriage is discriminatory and constitutes a violation of the constitutional rights of women and girls, it limits the equal benefit of the law and denies girls a free and dignified life. The lower courts of India have also listed several rights that fall within the realm of the right to life and personal liberty that protect against child marriage, including the following:

Right not to be subjected to torture or cruel, inhuman, and degrading treatment,
Right to health, reproductive health, and survival from pregnancy and childbirth,
Right to autonomy, dignity and reproductive rights,
Right to privacy, which includes the protection of the personal privacy of the home, family, marriage, motherhood, procreation, and raising children.

Indian Penal Code

Child marriages are not specifically penalized by the IPC, but Section 366 on forced marriage establishes the kidnapping or abduction of a woman to force her to marry and the use of any method of coercion as a punishable offence. The IPC also contains other provisions that may be applicable to child marriage in certain cases, such as Section 496 establishes that going through a marriage ceremony with fraudulent intent is a punishable offence. Under Section 340 the crime of wrongful confinement is that kind of wrongful restraint where the restraint is total and the victim is not allowed to proceed in any direction beyond a circumscribing limit. The language of this section shows that the crime of wrongful confinement is defined with the help of another crime, wrongful restraint. The continuum of damages resulting from child marriage can also lead to violations of various provisions of the IPC and related laws that criminalize violence against women and children.

Challenges faced in India

The ambiguity of the legislative provisions also poses numerous challenges to the status and validity of child marriage in the country. The government has the obligation to act with due diligence to prevent, protect, prosecute, punish and repair acts that excuse or perpetuate child marriage, through both legislative and institutional mechanisms. The government’s failure to establish accessible accountability mechanisms and procedures to seek legal redress for child marriage violates its obligation to guarantee legal remedies for human rights violations. In addition to the procedural barriers to filing claims that exist within the Prohibition of Child Marriage Act (PCMA) itself, there are also several structural and social barriers in the government’s legal and institutional mechanisms that impact the effective implementation of the legal framework on child marriage, including in the PCMA, religious laws on marriage, guardianship laws, and other civil and criminal laws on the rights of girls and women. Implementation of the law is hampered by poor infrastructural support and further weakened by the lack of availability of adequate and equitable legal remedies due to the lack of effective institutional policies. Compounding the effects of these infrastructure gaps are ingrained social norms that make it difficult for girls to exercise agency to get out of child marriages.

Failure of implementing legal policies against child marriage due to lack of structural support

The first and foremost challenge faced in India in implementing laws against child marriage is that India lacks structural support. No doubt that PCMA has been made for the prohibition of child marriage but only bringing the Act into existence is not helpful. The implementation of the Act to be carried out efficiently is also required. But if we ask this question ourselves, can we see that the Act has been implemented the way it should have been implemented. The answer to this question is no and the same could be proved by the fact given below.

According to the PCMA, each state government has to draft rules for the implementation of the Act and each state has to appoint trained Child Marriage Prohibition Officers (CMPO) who should know what their duties are. But in reality, this has not happened because currently only 24 states and union territories have drafted rules according to the PCMA whereas only 20 states and union territories have appointed CMPOs. Even after the requests made by the Ministry of Women and Child Development of India (MWCD), state governments have not provided any data on the implementation of these rules. In many states where CMPOs have been appointed, they are not the ones who are specifically appointed for this purpose but they are those officers on whose shoulder extra duty is transferred to look after the prevention of child marriage.

In India, laws are framed but the executive often fails to properly implement them, and as a result those who need to be saved often suffer. Now you think to yourself if the foundation of the building itself is not strong then how come the building will be able to handle itself. In simple and legal words if the law itself is not implemented in the way it should have been then no one can save those who are the victims. Therefore, lack of structural support is one of the challenges that are faced in implementing legal policies against child marriage.

Social barriers in reporting of cases and filing of complaints

When we bring the law into existence it is important that everyone should be made aware of the Act and also should be made aware of the rights and liabilities and duties that they have with them. It is important that the married girls, family members, concerned individuals, and the government officials that include CMPOs also should be aware of their legal rights and the mechanism available to them when they want to file a case against child marriage. But it is not easy as it seems and the reason for that is the social norms or should we say social barriers. We live in a country where customs and traditions are given more importance than the law. Many people believe that child marriage is not illegal and is justified because it has been followed for years. It has been a tradition that they follow just like the other traditions. Due to this reason, one may fail to file any complaint because they are always stopped by saying ‘that this is what that has always been followed and now you have to also follow it’ or ‘if you will go file a complaint then it will result in a loss of their reputation’ and due to this one can’t prevent the child marriage.

A study has shown that the girls whose child marriages were prevented have often faced stigma or violence from their families and have suffered. Instead of thinking about their child, they are more concerned about their family reputation if the girl remains unmarried because in some places it is still believed that if a girl calls off the wedding then no one would come to marry her again. In some places, the girls and their families may also have to face Khap Panchayats, who are conservative extra-judicial bodies present in villages whose aim is to enforce caste structures and set unofficial laws that concern marriage and daily life. They play a significant role in the promotion of child marriage in several states.

Now one may think if these conditions exist then how will one fight for his or her rights. Those who are victims of child marriage often stop themselves from filing complaints because they are forced to marry in the name of their family dignity and honor. One can always fight with the law but one can’t fight against these social norms or traditions alone until everyone comes together and fights these barriers. Therefore social barriers are also one of the challenges that exist in preventing child marriages.

Prosecution of cases

The next challenge that often arises is that even if a complaint is filed, the court does not give judgment on all the cases. Has the court convicted those who are actually liable for child marriage in the cases before the court? Even after child marriages are reported there are only a few cases that are fully prosecuted. It has been recognized by the Supreme Court that the prosecution for the promotion or solemnization of child marriages under the PCMA is “abysmally low” in the given incidence of child marriage.

A study has shown that even though 47 percent of girls were married as children between the years 2005- 2013, only a few cases were registered under the PCMA. Furthermore, the PCMA has one of the highest percentages of cases pending for disposal. In addition, a little more than one-fourth of the trials were completed where only 40 people were convicted for the offense of child marriage.

Lack of available legal remedies

There are legal remedies available for those who have become the victims of child marriage but they are not enough and those remedies which are available may be difficult for some to avail. The right to remedy has been provided by the International human rights law and Indian constitutional law for those children who have entered into child marriage and for the ensuing reproductive and sexual rights violations that would often occur from the practice. Even after this remedy is available, many married girls are often unable to avail these remedies due to the lack of bodily, financial, and social autonomy as well as a lack of institutional support in providing facilities for rehabilitation of married girls. Many girls who are forced into child marriage if they get their marriage declared void, start to look for a fresh life for which they need support. They look for legal aid through which they can get maintenance and that can be used to make their life better but it is also not easy for the young girls to achieve this service. Also, maintenance is available only in the cases of voidable marriages, and not in the case of marriages that are void ab initio.

It is important that every person aggrieved from child marriage can avail of legal remedies because it’s the way for their better future. Therefore, it is important that legal remedies should be provided that can be availed by everyone who was forced to become a victim of child marriage.

Possible solutions

Clearer provisions in the legislation

It is extremely necessary to have clearer laws for the concept of child marriages, as this would be the first step towards changing the outlook of society. Having stringent laws, and declaring child marriages void ab initio will stop many from indulging in the practice when they understand the gravity of the situation. Ultimately, people will accept that the concept of child marriages is a grave and harsh act.

Legitimacy of children

The legitimacy of the children born out of child marriages has to be tackled as well so that it does not stand as an obstacle in the way to the invalidity of child marriage. For the same, the Special Marriage Act, 1954 can be referred to, as the marriages that have been performed under this Act are registered and a certificate is provided. The off-springs born out of the wedlock are also entered, and hence they attain legitimacy.

Awareness

However, the most important strategy for this is creating awareness amongst the society. The concept of child marriages is societal, and a change in society is a must for stopping it. Many social evils existed in the past as well and were shunned by the change in society. A close example is that of sati. It has been many years and the problem of child marriages still poses a challenge to society at large, and to eradicate that, the outlook needs to be changed. Many schemes have been launched by the government to stop child marriages and to encourage families to educate the girls. These initiatives are introduced to motivate girls to study and also spread awareness about the necessity of education.

Conclusion

The concept of child marriage is a grave violation of various rights of the children involved in it. It has a detrimental effect on minors in various ways, as they suffer physically, mentally as well as emotionally. It also hampers their education. For some girls, it gives rise to various diseases due to premature pregnancies and also increases fetal as well as maternal mortality rates. Most importantly, it has a psychological impact on the minors who have to perform the obligations attached to the institution of marriage at a young age. The complexity of the situation increases due to the fact that the laws do not have a concrete stance for the same. While some provisions provide for a minimum age to get married and prescribe punishments for not following the criteria, there are other laws that give subsequent provisions, like a ground for divorce, indicating that the marriage between the partners is valid in nature.

Hence the judicial approach has not been precise in this status quo and has differentiated at different times. Although the country has been developing, there are certain states and areas where girls are married off at a very young age, before attaining the age of 18. The 59th Law Commission Report had stated the same, that the concept of child marriages hampers the growth of minors in various ways, and hence needs to be prohibited. However, in 1974, this was quite difficult to establish, considering the society. Even in contemporary times, social evil has not been completely eradicated and stands as a challenge. It continues to hamper the lives of many. Hence it is necessary that stringent laws are made, in order to stop this evil that continues to exist in society. This would not only help in better interpretation of the legislation but will also help the Judiciary to have a clearer approach towards the stance on the validity of child marriages.

References

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How can Disney solve the Mickey Mouse issue with the help of arbitration

By

Abanti Bose

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September 10, 2021

0

GettyImages-1232075106-H-2021 (1) — Image Source: https://rb.gy/osmxx0

This article is written by Priyal C Bhalerao, pursuing Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho.

Table of Contents

Introduction

“Mickey Mouse” was one of the most famous cartoon characters in the world during the 20th century. It has remained the figurehead of the Walt Disney Company (“Disney”) for almost nine decades. Disney holds both a copyright and a trademark for Mickey Mouse (The Mouse). Apparently, the Mouse has become synonymous with copyright term extension, featuring on apparel and household goods sold around the world. Protecting key pieces of intellectual property can involve lengthy and expensive litigation. Thus, giving rise to intellectual property disputes between various corporations and individuals. Due to the globalization of trade, trademarks are used for various types of goods and services, thus leading to the internationalization of trademarks. Even Disney has expanded its brand to global markets, which has certainly led to a surge in trademark infringement and counterfeit productions in the global market. The article addresses how Disney can solve the Mickey Mouse issue with help of arbitration, by examining the nature of international trademark disputes.

Trademark disputes

A trademark is an identity used to distinguish one good from other goods in commerce. The trademark law prevents the unauthorized use of trademarks by distinguishing them from the rest and helps people in clearly identifying the source of goods. Trademark law prevents the deception of consumers as well as protects the goodwill of the trademark owner. The Walt Disney Company is associated with Mickey Mouse and not with Walt Disney’s original cartoon character, Oswald the Lucky Rabbit, due to the constant association between the company’s name and the Mouse. Trademarks such as Mickey Mouse are widely successful due to their unique mark which clearly associates a product with the brand name of Disney.

In order to bring a prima facie case for trademark infringement, a party must prove that the infringing mark is used in commerce and such use can lead to a likelihood of confusion in consumers. Traditionally, litigation was the only method available for parties to enforce trademark rights. The disputes arising from a global perspective in relation to trademarks can be arbitrated in a more time and cost-efficient manner than in litigation at national courts as such cross-border litigation is both lengthy and costly. Eventually, with globalization, the process of going through litigation has increased the difficulty for trademark holders who are seeking to enforce their rights. Hence, Alternative Dispute Resolution (ADR) is proving to be the most efficient mechanism as an alternative to litigation.

Generally, the disputes brought to arbitration in relation to trademark include disputes arising from licensing, trademark assignments, franchising and distribution agreements. Trademark infringement and trademark validity issues may be arbitrated where the arbitration is based on a submission agreement concluded by the parties after the dispute has arisen. The Paris Convention for the Protection of Industrial Property (Paris Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) obligate parties to the Paris Convention and members of the World Trade Organization (WTO) to provide minimum standards of protection for trademarks and other pieces of intellectual property. It is essential to determine the applicable laws which will govern their dispute. Especially when parties decide to use arbitration, wherein there are a variety of procedural rules depending on the appointed arbitral institutions.

Arbitration as a resolution mechanism to solve Disney’s Mickey Mouse issue

Arbitration is a procedure wherein a dispute is submitted to one arbitrator or a panel of arbitrators by agreement of the parties, who renders a binding decision called an “award”. The internationalization of many companies as in the case of Disney can make it harder for the companies to fight against infringement. The use of international arbitration as a remedy to traditional litigation can emerge as an effective mechanism. Subsequently, though parties often include an arbitration clause in their agreement, all types of disputes may not be covered by such a clause. Furthermore, the courts of the United States are in favour of arbitration and have repeatedly determined that if two parties to a trademark dispute have agreed to comply with the arbitration for any claims arising under the terms of the contract, the dispute can be arbitrated. Thus, the use of arbitration can prove favourable for Disney to solve the case of Mickey Mouse. Following are various advantages of arbitration as a preferred dispute resolution method.

Speed and cost

Arbitration enables parties to appoint third-party neutral/s by limiting the scope of discovery, who has expertise in the relevant subject matter, which can substantially reduce the cost and time. If a dispute concerning the subject matter is covered by trademarks in several jurisdictions, it can be resolved by arbitration in a single arbitral proceeding. A provision can be entered in the arbitration clause for preventing parties from dragging out the dispute, thereby ensuring a decision to be rendered within a specified period of time. Thus, arbitration can prove to be cost-effective and speedy dispute resolution for Disney.

Flexibility in procedures

Arbitration is an amicable method of resolving disputes, which does not require any stringent lengthy procedure. The Supreme Court of the United States has repeatedly affirmed that public policy favours resorting to Alternate Dispute Resolution methods for settlement of disputes. Its ability to rapidly and inexpensively resolve disputes makes any intellectual property disputes befitting of resolution through ADR. As IP disputes are lengthy and at times involve very complex legal and technical issues, the arbitration allows for a more informal and efficient settlement of disputes. It allows for the reallocation of a company’s time and resources to more important tasks. Perhaps the process of arbitration can be customized to meet the needs of the parties involved to settle trademark disputes. The parties can choose from varied forms of ADR—negotiation, arbitration, or mediation for resolving disputes before potential litigation.

Selection of forum

Arbitration is a contractual agreement between two parties to settle a dispute. In a majority of cases, the international arbitration proceedings arising from a prior arbitration clause or an agreement so as to arbitrate a dispute, if one arises. The agreement binding parties to an arbitral agreement also binds them to its outcome. The parties can choose a neutral jurisdiction for the conduct of the arbitration. The prior agreement by the parties ensures that awards may be enforced in countries that have signed the New York Convention. Accordingly, arbitration protects parties from the unpredictable awards of a jury, which can often be exorbitant even to those unfamiliar with trademark disputes. The relief sought in trademark disputes is an injunctive relief, which is usually dispensed by judges but can be awarded by the arbitrators appointed by the parties to the dispute.

Privacy

The trademark disputes often involve trade secrets and other proprietary information, which the entities may wish to keep secret in order to protect the value of licenses not involved in the issue. The private nature of arbitration can keep the information confidential if the parties desire. For many businesses, it is important to protect the subject matter of a dispute from being published in news channels so as to maintain positive public relations. The public image of the company could be severely damaged by the details of an infringement involved in the dispute. Disney is already known to engage in frivolous trademark protection litigation. Thus, arbitration can help maintain the confidentiality of such disputes as in the case of Disney, by preventing the spread of negative publicity.

Injunctive relief

Injunctive relief is generally sought in trademark disputes. The use of a certain trademark in relation to the goods or services and an identical or similar trademark (Mickey Mouse) may lead to reputational risks for the company (Disney). It can lead to the dilution of the trademark, harming its perception by consumers and resulting in blurring. This may cause a decrease in the distinctiveness of Disney’s trademark, which may serve as a ground for trademark revocation. Apparently, in many jurisdictions such as the Netherlands and Germany, obtaining injunctive relief before the state courts is feasible. Various arbitration rules provide for such an opportunity, like under the WIPO Rules, wherein, the urgent interim relief is available within emergency relief proceedings applicable to arbitrations conducted under arbitration agreements.

Conclusion

The success of Mickey Mouse as an internationally recognized trademark, the endeavour to protect its trademark. Due to the internationalization of the business of Disney, there is an increase in trademark infringement. The nature of trademark and its infringement disputes shall be taken into consideration while determining how this dispute can be settled through litigation and arbitration. Trademarks are an integral part of the identity and success of many companies. The trademarks such as Mickey Mouse are recognized throughout the world as symbols of the accomplishment of a given brand. As trade has become more globalized, protecting trademarks can help strengthen business relationships.

The article has enunciated the use of arbitration in resolving the issue of Disney with regard to Mickey Mouse. Furthermore, it sought to demonstrate that using arbitration to settle international trademark disputes can be beneficial to both parties to the dispute. Eventually, arbitration may not be the best method for the resolution of all international trademark disputes, but it is important for parties to consider arbitration as a viable option for the resolution of the conflict.

References

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Anti-spitting laws and codes in India

By

Diganth Raj Sehgal

-

September 10, 2021

0

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This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article briefly collates all the anti-spitting laws applicable in the centre as well as the states.

Table of Contents

Introduction

It is found that Indians spit without the fear of being judged or the authorities penalising them because of social acceptance. On an average day, one could take a stroll around and find the railway stations, government buildings, lifts, public toilets, parks, roads and even cinema halls all spattered in red and crimson. There have been many instances reflecting the obsession of people with spitting, from Indian mothers and grandmothers doing it to prevent ‘buri nazar’ to the metaphors like ‘thoo-thoo karna’ and ‘thook kar chaatna’ which are regularly used in the Indian households.

Still, some disgust is associated with the habit and is unhygienic in general. It not only ruins the environment around but it was also found that it can cause the spread of COVID-19 as the saliva of an infected person can carry the virus for more than 24 hours. For all of these reasons, there are certain central and state level acts prohibiting spitting in public. In addition to it, there are also some temporary guidelines of COVID-19 to prevent the spread of the virus by banning spitting in public for the time being.

Laws against spitting in India

The Central Acts & Rules against spitting in India include:

Factories Act, 1948

Section 20 of the Factories Act, 1948 states that every factory will be provided with an adequate number of spittoons in convenient places which are to be maintained in a cleaned and hygienic condition. The State Government is vested with the power to decide on the logistics as to how many spittoons will be provided and at what location. They hold the power to make rules regarding them as well the matters relating to their maintenance in a clean and hygienic condition.

Further, the primary purpose of installing a spittoon is to prohibit and prevent people from spitting within the premises of a factory. To make it clear, a notice containing this provision and the penalty upon its violation also needs to be displayed at suitable places on the premises. The fine to be imposed for violating subsection 3 of Section 20 is not exceeding five rupees.

Indian Railways (Penalties for Activities Affecting Cleanliness at Railway Premises) Rules, 2012

Under Rule 3 Clause (b) read with Rule 4 of The Indian Railways (Penalties for Activities Affecting Cleanliness at Railway Premises) Rules, 2012, the penalty for the prohibition of activities affecting cleanliness and hygiene in the railway premises is given.

Rule 3 clause b elaborates on the activities prohibited from being done at the railway premises except for the facilities/convenience specifically provided, which include cooking, bathing, spitting, urinating, defecating, feeding animals or birds, repairing or washing vehicles, washing utensils or clothes or any other objects or keeping any type of storage near the area. As per Rule 4, the violation of Rule 3 would result in the imposition of a fine up to Rs. 500.

Dock Workers (Safety, Health and Welfare) Regulations, 1990

The Regulation 98 [sub-rule (2) in specific] of the Dock Workers (Safety, Health and Welfare) Regulations, 1990 talks about the spittoons which are to be provided in convenient places in sufficient numbers in every portion of a dock including warehouses and store places. They are to be maintained in a clean and hygienic condition. Further, all persons are prohibited from spitting in any area except that if the spittoons provided for the purpose. This has to be made known to everyone by placing a prominent notice at suitable places. The spittoons herein are to be of an approved type which need to be emptied, cleaned and disinfected at least once every day. Anyone violating sub-regulation 2 shall be imposed with a fine not exceeding one hundred rupees.

Disaster Management Act, 2005

This Act did not deal with spitting per se until there was a need for a national law to be enforced in every state as a preventive measure for combating COVID-19. The main objective of this Act is to provide effective management of disasters and matters related to them, in pursuance of which the Home Ministry and the Central Government made spitting in public a punishable offence under Section 51(b) of the Disaster Management Act, 2005 in April 2020. It was done after witnessing the positive results achieved by the states and their municipal corporations who took proactive measures by implementing strict laws to control the spread of COVID-19.

Prior to this enactment, though many states had their own local anti-spitting laws with prescribed penalties, they were not enforced. Further, the public attitude, the widespread culture of betel and tobacco chewing and low priority keeps the practice going. However, due to the need of the hour and the situation worsening by the day, the States such as Bihar, Telangana, Jharkhand, Uttar Pradesh, Uttarakhand, Haryana, Maharashtra, Assam and Nagaland banned the use of smokeless tobacco products and spitting in public places amid the pandemic outbreak. While on the other hand, many other states did not take any action against the spread of COVID-19 through spitting in public places which prompted the need for central law. With COVID-19 being made a “notified disaster”, the orders passed under the Disaster Management Act applies to the whole of India, thereby empowering the Government of India to instruct state governments to pass laws or orders against spitting and make the directive implemented by district magistrates through fines and penal action as per the Act.

Section 51 of the Act has two important reservations. Under the Act, the action on the part of the person has to be ‘without reasonable cause’ and ‘failure of an officer to perform the duty without due permission or lawful excuse’. Section 51(b) of the Disaster Management Act prescribes “punishment for obstruction” for refusal to comply with any direction given by or on behalf of the Central Government or the State government or the National Executive Committee or the State Executive Committee or the District Authority under the Act.

Upon refusal to comply with orders, the offender is liable for punishment with imprisonment up to one year, or fine, or both. In case this refusal leads to the death of people, the person liable shall be punished with imprisonment up to two years.

State Acts and Rules

The states at their level have their own local and municipal laws which are quite similar in nature with each other, against the menace of spitting in public places. These provisions are also noticed in the Police Acts of various states, while a few have their own specific enactments for it. The enactments include:

Arunachal Pradesh Prevention of Defacement of Property Act, 1997

Under Section 3 of the Act, the penalty to deface the property in public by defecating or spitting or urinating or pasting pamphlets, posters or writing or marking is liable to be punished with imprisonment for a term up to six months or a fine up to Rs. 1000, or both.

Bombay Police Act, 1951

Under Section 115 of the Act, spitting is included under the activities prohibited in or near any street, public place or place of public resort. This is to prevent causing annoyance to a passerby. Further, under Section 116 of the Act, no person shall be found disregarding the notice put up by a competent authority in charge of any court, police station, police office, the building occupied by government or building occupied by any public body, otherwise would be punished with a fine up to Rs. 1200 upon conviction under as per Section 117.

Further, in 2020, Maharashtra’s state government decided to involve criminal action against those who are found spitting in public in view of the pandemic. The state’s public health department has proposed to invoke Sections of the Indian Penal Code, 1860 against violators. As per a media report, the Brihanmumbai Municipal Corporation (BMC) had recovered Rs. 2.24 lakh in fines from at least 224 people who were caught spitting on the road. The BMC has levied a fine of Rs. 1,000 for those caught spitting in public places. Further, at least 167 people were also let off with a warning.

For a second-time offender, the fine will be Rs. 3,000 plus three-day community service and for repeat offenders, the fine will be Rs. 5,000 plus five-day community service. The aim behind the law is to shame the offenders and hurt their ego as simply paying a penalty and collecting a fine is not deterrent enough. When the penalty amount is low, the offenders do not think twice before repeating the act, therefore, the state public health minister of Mumbai said that they will introduce compulsory community service.

Earlier this year in April 2021, the Bombay High Court criticised the state government for not being able to stop people from spitting in public places and suggested BMC launch a mass campaign to make people aware of the unsanitary habit. The Court upon the hearing of the PIL questioned the BMC officials and the police as to why Rs. 200 was being collected despite the law permitting collection up to Rs. 1200 and asked the authorities to impose heavy fines and take proactive measures.

Goa Prohibition of Smoking and Spitting Act, 1997

The state of Goa has a separate enactment dedicated against spitting in public. It provides for prohibiting the use of tobacco in any form and spitting in places of public work or use and in public service vehicles in the State of Goa and to make provision for other matters connected therewith.

It defines spitting as “the voluntary ejection of saliva from the mouth after chewing or without chewing and ejection of mucus from the nose after inhaling snuff or without inhaling” under Section 2(i). Section 5 prohibits smoking in places of public work/use. Section 6 prohibits spitting while travelling in or using a public service vehicle. It is the duty of the owner or manager or in-charge of affairs of every place of public work to display or put on exhibit a board in a place where it is prominently visible stating that spitting is not allowed/ is an offence under Section 10. It has to be read along with Section 2(i) and Sections 11(a), 12, 13. Section 11 states that punishment for contravention of the provision with a fine up to Rs. 1000 and in case of subsequent offence with a minimum of Rs. 2000 which may extend to Rs. 5000.

Any authorized officer/ police officer not below the rank of sub-inspector may eject the violators from such place where the offence is committed, and any driver/conductor may eject the offenders from the public service vehicles who contravene the provisions as per Section 12. Further, the cognizance and trial of the offence can only take place at the Court of Judicial Magistrate First Class under Section 13 of the Act.

Gujarat

Though Gujarat does not have a specific Act against spitting, in view of the pandemic, the Gujarat Chief Secretary acted proactively and introduced a ban on spitting on roads and in public places. The action was punishable by a fine of 500 rupees and once the new order was implemented by the Amdavad Municipal Corporation (AMC), it resulted in 1244 persons fined on the very first day of enforcement. The AMC built on this measure by increasing the fine to 1000 rupees from 23 March 2020 and issuing police FIRs (first information reports) to those who refused or failed to pay the fine. This was done even before 15 March 2020 when the first reported case in Gujarat and well before the existence of the national directive on smokeless tobacco to contain COVID-19 issued under the Disaster Management Act.

Delhi Police Act, 1978

Under Section 95 of the Act, it is prohibited to spit or cause annoyance at any passerby in any street, public space or place of public resort. There shall be no disregard to any notice put up by a competent authority in charge of any court, police station, police office or building occupied by Government or building occupied by any local body under Section 96 of the Act. Further, the punishment upon conviction is a fine up to Rs. 100 or if in case of default in payment of fine then imprisonment not exceeding 8 days as per Section 97 of the Act.

Haryana Municipal Act, 1973

Section 159 of the Haryana Municipal Act, 1973, prohibits spitting in a public place that is within the limits of the municipality upon which this Section is applicable by way of a notification by the State Government. Anyone found spitting in a place other than a drain or a receptacle provided by the committee for this purpose would be in contravention of this Section and be convicted in the court of the Magistrate of the first or second class along with a fine not less than Rs. 25 and not more than Rs. 200.

Kerala Police Act, 2011

Under Section 120-E of the Kerala Police Act, 2011, the penalty for making a public place dirty is punishable with imprisonment up to one year or with a fine up to Rs. 5000 or with both.

Kerala Prisons and Correctional Services (Management) Act, 2010

Section 81(9) read with Section 82 of the Act, makes spitting on/soiling any floor, door, wall or another part of the prison building or any article in the prison is considered an offence of prison. Punishment for it is followed by an enquiry by the superintendent or through his authorized officer and can be as follows:

A formal warning personally addressed to the prisoner by the Superintendent and recorded in the punishment book;
Change of labour to some more irksome or severe form for such period as may be prescribed;
Hard labour, for a period not exceeding seven days, in the case of convicted criminal prisoners not sentenced to rigorous imprisonment;
Forfeiture of remission up to a period of thirty days at any one time or, removal of the prisoner with the approval of the Director-General from the remission system up to a period of six months;
Stoppage of recreational facilities up to a period of one month or canteen facilities for a period of three months or stoppage of interviews for a period of one month;
In case of breaches and violations in conditions of release on parole, such period shall not be counted as a period of imprisonment;
Segregation up to a period of three months, and with the sanction of the Director-General, up to a period of six months;
Separate confinement up to a period of one month at a time, and with the sanction of the Director;
Cellular confinement for any period not exceeding fourteen days.

Madras Public Health Act, 1939

Under the Act, the definition of offensive matter includes spittings including chewed betel and tobacco as per Section 27(c).

Tamil Nadu Prohibition of Smoking and Spitting Act, 2002

Under the Act, Section 2(h) defines spitting as “the voluntary ejection of saliva from the mouth after chewing tobacco, pan-masala, gutka, betel leaf with areca nut in any form or any tobacco product or products containing tobacco or ejection of mucus from the nose after inhaling snuff.” Section 4 prohibits spitting in any public place of use/work. Section 5 prohibits spitting on any public service vehicle. Section 8 requires the person in charge of a public place of work/use to put up boards with slogans like “No Smoking” or “Smoking is an Offence” at a prominent place in or outside the place.

Contravention of Sections 4, 5 or 8 attract a punishment of fine up to Rs. 100 and in case of a subsequent offence, a minimum of Rs. 200 which may extend up to Rs. 500 as per Sections 9(1). Further, Section 12 empowers any authorised officer or any police officer, not below the rank of a Sub-Inspector to eject any person who contravenes any of the provisions of this Act, from the place of public work or use, and any driver or conductor of a public service vehicle may eject any person who contravenes any of the provisions of this Act.

Karnataka Police Act, 1963

Section 92(x) and 92(y) of the Act, states the punishment for spitting in any public place or place of public resort annoying any passerby, or spitting in any court, police station, public office/building occupied by government/public body violating the notice put up by a competent authority which is fine up to Rs. 100 and imprisonment upon failure to pay, which will not more than 8 days.

The state also followed the central’s directions in taking measures to curb public usage of tobacco as it increases the chances of the Coronavirus spread. The state exercised its powers as conferred by this Karnataka Epidemic Diseases Ordinance, 2020 Section 4(2) A of and the Indian Penal Code 1860, and issued an order banning the usage of chewing tobacco products and consuming pan masala products and spitting them in public places. The order stated that those who are found violating this direction will be booked under IPC 188, 268, 269, 270 and action will be initiated against the violators.

Himachal Pradesh Municipal Act, 1994

Section 149(b) of the Act prohibits spitting on public places, roads, streets or walls and prescribes a fine of up to Rs. 1000 in addition to other charges incurred for cleaning or removal of such spit etc from such a place.

Spitting on the roads of Shimla was already banned ever since the Himachal Pradesh High Court’s 2007 order for putting up sign boards for raising awareness and fining those spitting and smoking in public between Rs. 50 and Rs. 500.

Uttarakhand Anti Littering and Anti Spitting Act, 2016

The Act aims to keep the state clean by imposing restrictions on loitering and spitting. Section 3(j) defines spitting as similar to the definition of other acts. Spitting in a public place is an offence under Section 4 of the Act. Section 9 penalises spitting with a fine not exceeding Rs. 5000 or imprisonment for not more than six months/both. Upon subsequent conviction a further fine not exceeding Rs. 500 for every day during which the offence is continued.

Assam

Though it does not have a separate Act, in 2020, during the COVID-19 pandemic, the Assam State Disaster Management Authority banned spitting in public places and declared it a punishable offence with a fine. The government also prohibited the consumption and sale of pan, gutka, tobacco etc. in public places. This year, the Consumers’ Legal Protection Forum (CLPF), Assam has demanded the Assam government by submitting a letter to the Chief Secretary to ban spitting in public places and prohibit the consumption or sale of the pan, gutka, and tobacco.

Meghalaya

The state of Meghalaya has been working towards maintaining a clean surrounding since 2016 and has issued orders earlier prohibiting spitting in public places. As per Section 23 of the Meghalaya Factories Rules, 1980, the spittoons will be provided in each hospital at convenient places and will be fined for contravention with Rs. 5. Section 55 provides for the spaces where spittoons can be made. Section 56 specifies the types of spittoons to be made and their cleaning criteria is given in Section 57.

Nagaland Municipal Act, 2001

Under the Act, Section 441 restricts everyone from spitting in any place public within the limits of any municipal area other than a drain or a receptacle provided by the Municipality. This is to be read along with Sections 470, 471 & 472. Section 470 and 471 state the punishment for contravention of the provisions and the failure to comply with any orders given lawfully through the provisions which would be a fine up to Rs. 2000 and an additional fine in case of continuing failure up to one-tenth of the maximum fine for every day after the first failure.

Telangana

Under the Hyderabad City Police Act, 1348 F, Section 72, contravention of a notice affixed by competent authorities in any court or Police Station or Police Office or building used for Government purposes or building occupied by any public body is punishable with fines up to Rs. 50.

Telangana too, like other states promulgated a ban on spitting pan, any form of chewable tobacco or non-tobacco products in public places. The Epidemic Diseases Act, 1897 gives the civic authorities the power to enact the rules and violators of this ban are to be booked under Section 188 of IPC which imposes a fine up to Rs. 1000 or imprisonment up to six months or both. Further, According to Section 327(2) of the Greater Hyderabad Municipal Corporation Act, 1955, a person can be imprisoned for a month or fined up to Rs. 5000 for spitting in public.

Orissa Urban Police Act, 2003

Under the Act, Sections 80 clause (c) prohibits spitting in or near any street, public place or place of public resort. Section 83 prohibits spitting in contravention of any notice put up by a competent authority in charge of any court, police station, police office or building occupied by government or building occupied by any local body which will be punishable with a fine up to Rs. 1000 or in case of default of such fine, imprisonment, not more than 30 days as per Section 84.

Madhya Pradesh Municipalities Act, 1961

Section 258 of the Act prohibits spitting in any place other than a drain or receptacle provided for the purpose by the municipal council and prescribes punishment with a fine which may extend to twenty-five rupees.

It also banned spitting in public places for the prevention of spreading of the virus and imposed a penalty of Rs. 1000 on those who are found violating. The order in this respect was issued by the Principal Secretary of the Urban Development and Housing (UDH) Department in the exercise of the powers vested to the state government under Section 418-A and 426-A of the Madhya Pradesh Nagar Palika Nigam Act, 1956 and Section 346 of the MP Nagar Palika (Municipalities) Act 1961.

West Bengal Smoking & Spitting and Protection of Health of Non-smokers and Minors Act, 2001

Section 2(8) of the Act defines spitting which is prohibited in public space and public vehicles as per Section 5 and 6 respectively. Similarly, as per Section 10, the person in charge of such public places has to put on display boards with slogans against spitting as mentioned above. Sections 11(1) states the punishment for contravention of Sections 5, 6 and 10 which is fine up to Rs. 1000 and for subsequent conviction, it will be not less than Rs. 2000 which may extend up to Rs. 5000. Offences under Sections 5, 6 & 10 are cognizable and bailable as per Section 14 of the Act.

Other states

Other states such as Bihar, Rajasthan, Punjab, Mizoram, Jharkhand, Andhra Pradesh by virtue of power under their respective Epidemic Disease Act of the state issues notifications for banning spitting in public. However, these COVID-19 guidelines are temporary in nature and would be effective so long the pandemic lasts, while what we need is an Act or Rule which has a permanent effect and strict enforcement in order to have an actual effect in the long term. The approach should be beyond enforcement and imposing high penalties, so as to create awareness and touch the conscience of the people.

Conclusion

Despite having legislative enactments, we have not been able to bring this menace under control. These enactments have not been effective in preventing people from indulging in the act and due to very low imposition of fines, no deterrence has been created. Preventive guidelines for COVID-19 can become one great excuse for people to break away from their habit of spitting anywhere and everywhere. It would be a great service to the nation, although the guidelines are applicable for a limited period. Further, there have been various campaigns and talks around it, but the issue needs serious attention to establish a spit free India.

References

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Introduction

Court : a service or a place

Virtual courts : challenges, opportunities and the way ahead

Challenges in a virtual court system

Digital divide

Technological competence

Open court principle

Issues on data breach and data security

Opportunities in the virtual justice delivery system

Ways to enhance the scope of the virtual court system

The problem of pendency of cases to be dealt with in virtual courts

Legal and constitutional principles embodied in virtual courts

Concept of e-courts project

Phase-I

Phase-2

Objectives of the e-Courts projects

What are e-Courts

What are the advantages of e-Court

Challenges faced by the e-Courts system

How are e-Courts different from virtual courts

Hardships faced by advocates

Conclusion

References

Introduction

Background

Provisions involved

Question of law

Contentions of the parties

Petitioners

Respondents

What was held by the Apex Court?

Analysis

Conclusion

References

Introduction

Background of the case

The application

Issues before the Court

Capacity to marry

Declaration under the inherent jurisdiction

Extension of time under Section 13(4) the Matrimonial Causes Act, 1973

The decision of the Court

What can be drawn from the case

Judgement of the case

Practical implications of this case

Conclusion

References

Introduction

Media piracy in India

Sound piracy

Case study of T-series

Computer software piracy

Microsoft Corporation vs. Yogesh Papat & Anr. 2005

Movie piracy

Video piracy

Cable piracy

Piracy in web series

Piracy law in India

Anti-piracy reforms in India

National Intellectual Property Rights Policy, 2016

The Cell for IPR Promotion and Management (CIPAM)

Indian Music Industry (IMI)

Business Software Alliance (BSA)

Industry Enforcers

Other initiatives by both Central and State Government

Judicial contribution

Conclusion

Reference

Introduction

Wildlife trading

What is wildlife trading

What are the reasons for wildlife trading?

Illegal wildlife trading

What is illegal wildlife trading

Why is illegal wildlife trading problematic

Over-exploitation of species-

Depletion of species due to over-usage-

Economic Development is hampered-

Major health risk-

Depleting forest resources-