Rights of workers in Indian radioactive industry

By

Diva Rai

-

September 5, 2021

0

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

This article has been written by Samhita R.H. Nidigattu.

Table of Contents

Abstract

Nuclear energy as we know it is free from harmful greenhouse emissions and has a minimal carbon footprint and most importantly an inexhaustible source of energy to power life on earth. This article evaluates the Nuclear industry and rights of radioactive workers in India and compares the reality to a major Nuclear Power House Russia and compares what best practices could be adopted. It also views the biggest nuclear disasters and lessons learnt from them and the shortcomings of Indian Nuclear legislations towards radioactive workers. We view some loopholes and conclude with suggestions.

Introduction

Nuclear energy as we all know has revolutionised energy generation across the globe and is equally used for power generation as well as an explosive. Nuclear energy is a class apart because it’s clean energy that doesn’t deplete any natural resources. Simply put Nuclear energy originates from nuclear fission of uranium atoms, the process of splitting the atoms generates heat that produces steam which is converted into electricity by turbines. This process is devoid of any emissions or chemical waste and is therefore considered green energy.

The nuclear core contains uranium-235 or plutonium-239 ( most commonly used isotopes) mined and enriched into a yellow powder that made into pellets inserted into fuel rods, which serve as nuclear fuel and grouped into a group of fuel rods. These rods are then activated by a free neutron that breaks apart the uranium atoms and makes it an unstable isotope which produces lighter nuclei, heat, gamma rays and free neutrons, the condenser flushes in water, which then gets heated and produces steam that powers the turbine and then the generator. The steam is again condensed and reused in the cooling process.

Meanwhile in the nuclear reactor control rods exist to halt the fission process by absorbing free neutrons without fissioning themselves and are usually made with boron, silver, indium, cadmium and hafnium with alloys which shuts down the nuclear reactor. This process occurs in a loop to produce energy and is called the nuclear chain reaction. While this process is relatively safe when it has manual and automatic shut down options the main concern is the radioactive gamma rays that are released.

On an average a normal human receives about 620 millirems of radiation according to the NRC which is considered tolerable, half of which comes from natural sources like the sun and background radiation from naturally occurring minerals and inherent radioactive elements in our food, meanwhile the other half is from man made sources like x rays, microwave ovens, cellular towers, electronics, radiation therapy and the like.

There are different types of radioactive waves that affect us. There are four main types, Alpha, Beta, Gamma and Neutron waves. As seen in the figure alpha and beta waves can be easily immobilised whereas gamma and neutron waves can penetrate through most materials. Whatever the types of radiation the damage to human cells is real, exposure to radiation can cause genetic mutations that lead to various diseases such as cancers, cardiovascular problems, birth defects and similar issues as it affects the DNA cell structure. Despite the advertisements of permissible limits there is no clear data as to how much radiation can ever be considered safe as exposure to radiation is not without effect.

While there are conventions such as the ‘Comprehensive Nuclear-Test-Ban Treaty’ adopted by the UN in 1996 India, North Korea and Pakistan have still not signed it. While the ’Treaty on the Prohibition of Nuclear Weapons’ was drawn up in 2017 and officially active from 2021, it has still not been ratified by many nations. These treaties and political alliances across the globe have come to a consensus on prohibiting nations from engaging in nuclear warfare as its mutually assured destruction will only result in the ultimate elimination of all life on earth.

However there are still a group of people affected by nuclear energy and its radioactive waves every day. These are the engineers and workers at nuclear plants that have to deal with radioactive waves on the regular. The best practices against this are protective gear, high security measures against hacking or intruders and emergency countermeasures in case of accidents and of course regular monitoring and ample training for the employees to educate them of the procedure to be followed w.r.t to occupational exposure. Organisations like the International Atomic Energy Agency issue guidelines to all member countries through the international basic safety standards.

Indian Nuclear Industry

The Indian nuclear industry is governed by the Atomic Energy Act, 1962. India hasn’t signed nuclear trade treaties and therefore has to depend on the indigenous supply of uranium which does not amount to much. The AERB governs polices and safety protocol concerning nuclear energy in India.

The AERB set out guidelines regarding worker safety in the, ‘Atomic Energy Radiation Protection Rules, 2004’. Furthermore they are drawn from the ‘International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources (BSS)’ developed by the UNFAO, IAEA, ILO nuclear agency of OECD, WHO and PAHO, wherein they provide a uniform safety standards for workers engaged in nuclear and radiological operations as per ILO convention no.115 across the world. The NPCIL governs the operations and design of all nuclear power plants in India. After the 2015 amendment NPCIL can enter into joint collaborations with Public Sector Undertakings.

First off it calls for a regulatory authority to be established that is the AERB in India, and for all the personnel involved in the field to be equipped with knowledge of the standards and to implement them. These standards uniformly apply to the nuclear industry, educational, agriculture, veterinary and medical research and practice and any other field that might involve the use of radioactive materials. All related personnel are to be made aware of permitted dosage of irradiation, and have to undergo regular medical check up and bioassays and consent to give regular urine samples and comply with workplace protocol by wearing their personal protective equipment.

Workers are also provided access to on-site medical professionals to deal with irradiation effects if any and are meant to strictly cannot cross the limit of 1mSv (table.1) in their entire lifetime, unless there is a need to be exposed beyond the permitted level e.g. in emergency cases. In most cases we see it measured in millisieverts because exposure to 1Sv can cause immediate effects on the human body.

Radiation measurement : Table

Units	Measure type
Bequerel (Bq)	measures radioactivity released by a material
Roentgen( R) / coulomb per Kilogram ( C/ kg)	measures amount of radiation in the air
Rad / Gray (Gy)	measures the absorbed dose by an object or being ( 1Gy = Joule/Kg)
Roentgen equivalent man ( rem) / Sievert (Sv)	measures the radiation absorbed and the corresponding medical effects

A striking factor in the Indian Nuclear Industry is that it’s all controlled by the government unlike in the US where private entities run NPP’s. There is no scope for private players to enter the nuclear industry for the foreseeable future. According to S.11,14,15 and 16 of the Atomic Energy Act the Government holds the exclusive right to take charge of mining and production of radioactive materials. S.17 of the act prescribes safety measures for employees working in the radioactive industry. S.23 clearly states that the central government reserves the exclusive right to bypass the Factories Act, 1948.

According to the Atomic Energy (Radiation protection) rules (2004), no one below the age of 18 will be taken into employment (S.17), furthermore employees are entitled to their medical records at any given point of time (S.24) and shall be under constant health surveillance (S.25). Any workplace accidents and the expenses occurred therein shall be reimbursed by the employer ( S.32). Personnel regularly carry dosimeters that monitor exposure to radiation and even the prescribed limits (table.1) are not exceeded. The environment and surrounding areas are constantly monitored for radiation and contingency measures are always on standby.

Moreover the Government has enacted Atomic Energy Safe Disposal of Radioactive Waste Rules, 1987 and Atomic Energy Factories Rules, 1996 that govern the implementation of radioactive waste and guidelines for atomic factories regarding working conditions for the workers. U/Rule 11 workers are required to have access to 25% fresh air and ventilation and optimal temperature and proper illumination at all times through the use of exhaust fans, windows and lighting.

Rule 12,13,14,15,17 discusses the access to clean cool drinking water for the personnel as the heat in the NPP can only be offset by cold water and emergency iodine supplements to counteract radiation effects. Rule 57 and 58 prescribe the quality and necessity for personal protective equipment. Rule 62 puts the onus of informing the employees and residents in the vicinity of the NPP on the managing authority. The rest of the act provides guidelines for other operations within the NPP and monitoring guidelines.

The biggest aid to workers in the radioactive industry is the Contributory Health Services Scheme (CHSS) rules, 1998, that outline the medical cover for workers under the Department of Atomic energy and NPCIL And various other departments that qualify for the scheme. It ensures that all the qualifying workers and their spouses and dependent parents and children shall receive free medical attendance and treatment at prescribed centres (BARC Hospitals) and can avail the assistance of a physician at their home if necessary. If any of the eligible members require serious treatment they can be admitted to other hospitals approved by the director, BARC. The employees are entitled to maternity benefits as long as they register with the BARC hospital and outside expenses will only be reimbursed to a prescribed limit. The Department of Atomic Energy (DAE) has also approved the reimbursement of IVF procedures to eligible employees and wives of employees subject to guidelines prescribed.

Finally the Government enacted the Civil liability for Nuclear Damage Act, 2010 that discusses the compensation in the event of a nuclear disaster wherein a claims commissioner is appointed to oversee the eligibility and award compensation to the victims. Finally under the Right to Information Act, 2005 the government is liable to give an explanation to anyone who requires it.

Russian Nuclear Industry

Russia earlier a part of the USSR has communist origins however the Russia of the 21st century is a republican federation on paper. However, owing to their strict authoritarian rule, the Russian nuclear Industry is strictly controlled by the government and operates under the department of ‘State Atomic Energy Corporation Rosatom’. Rosatom oversees the nuclear fuel and energy production, research and development of nuclear energy, and radiation safety; it is a wholly state owned corporation and is even invested in nuclear medicine, renewable energy and other nuclear equipment. They also trade internationally developing nuclear power plants and have an overseas NPP portfolio worth USD 140 Billion. Since Russia is a rich source of radioactive minerals 29 like uranium and plutonium they are one of the worlds largest suppliers of nuclear fuel having been pioneers in the industry starting research in the 1900s.

Article 16. The Rights of the Workers at Nuclear Facilities of the Russian Federal law guarantees social benefits for workers engaged in work with nuclear or radioactive materials. Existing and previous employees are both entitled to medical care to combat the effects of irradiation. Article 226. ‘Funding the activities aimed at improving labor conditions and labor protection’ of the Russian Labour Code states that all finance towards labour conditions and protection will be put up by the Russian government and employees will not have to pay any expenses. This also provides safety from the government towards their workers in all industries and especially the radioactive industry. Article 221 and 224 of the same code guarantee all personal protective equipment by the state.

‘Rosenergoatom’ is a subsidiary company under Rosatom and the holding company ‘Atomenergoprom’. They are incharge of all NPP safety protocols and regularly visit the field sites and answer all personnel questions and queries. They even regularly conduct training to teach the personnel safety measures and consequences of breach pf protocol. They have even provided social security benefits such as zero interest housing loans, waiving interest on mortgage, financial welfare assistance and free medical care.

‘Standard Remuneration Procedure of Employees of Rosenergoatom’ and ‘Provisions on the Final Safety Culture Day in Rosenergoatom’ govern the operating procedure of personnel where there are guided minutely. The regarding their functions and failure to undertake designated duties bringing in a safety culture into their organisation. The Federal Antimonopoly Service of Russia is charged with drawing up funds for NPP’s from start to finish, the Rosenergoatom undertakes training all the personnel through class and simulators and is personally responsible for any civil liability. Personal are even provided psychological and physiological support. The perosonnel are trained intensively before they are allowed to operate NPP’s and are tested periodically to minimise any possible errors.

India vs Russia

Considering their economic standing on a global scale, Russia is far more advanced in terms of safety protocol and personnel training. Russia’s intonational nuclear trade brings in vast amount of capital to the entire industry as a whole helping them constantly innovate through R&D and truly stay a mile ahead on the global scale. India as we’ve early evaluated could not get into the commercial nuclear market because of their refusal to sign the ‘Nuclear Non-Proliferation Treaty ’ which kept them out of global nuclear 35 trade, which does hinder its progress compared to its counterparts but with the latest research with thorium based fuel cells they could join the race in nuclear energy.

India has one of the highest deposits of thorium (almost 25% of global deposits) in its southern states and although thorium isn’t directly fissionable like uranium-235 it can be charged with neutrons and converted into uranium-233 which release a considerably lower level of nuclear waste and lack of its immediate fissionable properties curb any possible illegal activity though its use. Since there’s an abundant presence of thorium in India, outside imports of nuclear material can be reduced and fuel can be produced indigenously. Mining local thorium can create a lot of jobs for the indian market and greatly help flourish the nuclear industry in India. These funds can help them slowly enter the global nuclear trade and spend more money on R&D and safety protocol and practices for radioactive workers in India.

Major Nuclear Accidents in India and around the World

India is not fraught without minor nuclear mishaps in the past. In a tell all by George Iype in 2001, its reported that Indian NPP’s lack adequate cooling systems in their sites based in Kalpakkam, Madras and Tarapur, Maharashtra ( claimed to have outdated systems ). In 2016 a NPP in Kakrapar, Gujarat declared emergency and was closed after a mishap involving water leakage. In 2009 radioactive material was consumed by 55 employees at the Kaiga Generating station and in 2003 at Kalpakkam plant in Tamil Nadu employees were exposed to high levels of radiation due to safety valve failure.

Chernobyl, Ukraine (INES – Level 7)

Considered one of the worst nuclear disasters in human history rating 7 on the INES scale, Chernobyl 1986 victims suffer till date with the radiation induced diseases in the region and many sites around it have become absolutely uninhabitable upto an estimated 20,000 years. What was supposed to be a routine test to check if the NPP would work in power outage went out control and the cooling systems failed and ensued a chain reaction of cores heating up and ultimately bursting into the atmosphere. This accidents completely affected everything in its vicinity rendering the town Pripyat uninhabitable.

It has affected thousands of people resulting in cancers and genetic mutations and continues till date. There’s a popular Netflix show that goes in detail with what went wrong and what can be seen is the negligence of the station head to immediately take a report by a worker seriously, the slow response time and information relay to relevant authorities rendered it too late to contain the issue. The USSR government can be blamed in part for delaying evacuation and announcing it on the global pane.

In 2011 a massive tsunami caused by an earthquake hit the shores of Okuma japan that disabled the Fukushima power plant, similar to the Chernobyl incident the power shut down disabled the coolant system which led to overheating of the cores and subsequent reactor meltdown and explosion yet again affecting everything in its vicinity rating 7 on the INES scale.

Although triggered by a natural disaster it highlighted the risk of coolant systems failing in a power plant firstly affecting personnel and causing irreversible damage to life. Many towns around the region had to be evacuated, However the Japanese government’s immediate response in evacuating personnel and people helped curb the effects better than Chernobyl as there were no reported deaths directly from the reactor incident.

3 Mile island, Pennsylvania, USA (INES -Level 5):

A cooling valve malfunctioned in the plant and this led to increased temperatures in one the reactors and the heat continued to build up as the coolant leaked away leading to release of radioactive elements into the atmosphere. The employees on site tried to induce more water into the reactor to cool it down but the built up pressure ended up leaking it into the air however there were no major health concerns as it was reported that only noble gases leaked into the air and later records of 30,000 people in the vicinity of 3 mile island were kept. However no abnormal levels of radiation or medical issues weren’t.

Protective Mechanisms 2020 : ILO guidelines and BSS

After learning from various nuclear disasters international bodies such as the IAEA and ILO and others like the NRC have required stringent security on the latest nuclear 48 reactor design such as remotely controlled coolant systems and no reactor can be commercially sold without passing the design review of the IAEA. Furthermore importance is being ushered in nuclear safety culture in every country and care being taken to build NPP’s in remote areas and away from seismic regions. The ILO prescribes standards of safety at radioactive workplaces and basic safety standards w.r.t radiation 50 that have been adopted into most domestic legislations across the globe.

Conclusion

Adopting safety standards isn’t all there is to protecting employees and citizens against radiation. The government must be proactive and transparent regarding their measures and legislation. One key feature that’s troubling is that nuclear accidents are not covered in accident insurance claims which can greatly disadvantage the employees family as accidental insurance is higher than a normal death. Although the government takes responsibility for providing medical care to radioactive personnel and their family there are monetary limits and procedural nuances that can be hard to grasp. The workers must be intensively trained to deal with emergency situations and must be taught to operate preventative mechanisms. The nuclear industry must move towards more remotely operated equipment to minimise any possible accidents towards workers or civilians. It is great to note that there haven’t been any major nuclear disaster’s in India however this record must be continued if India is to ever join the global race of nuclear energy producers.

Furthermore in the Nuclear Civil liability Act(2010) the compensation process is extremely tedious inaccessible to the layman. The Code on Social Security also make hiring and firing practices flexible and often times migrant workers are hired to clean up radioactive waste etc this puts them at a vulnerable position. The atomic energy act of 1962 needs an amendment if India is considering commercial production of nuclear energy and even if the government is taking liability for nuclear accidents they do not clarify how much compensation ends the liability on their part. One of the biggest concerns is the AERB being under control of the DAE while international authorities prescribe an independent oversight committee, doing so would increase the transparency of the nuclear industry in India. Stephen Hawking says this,

“I would like nuclear fusion to become a practical power source. It would provide an inexhaustible supply of energy, without pollution or global warming.”

And for a third world nation clean energy would be a great boon for the economy and the thriving and major agricultural economy of India. I would recommend that India achieves more openness and clarity regarding their nuclear safety protocol and contingency measures for workers and increase their social security benefits and move towards a clean nuclear energy future.

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5 years of RERA Act – analyzing the success

By

Diva Rai

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September 5, 2021

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593 — Image source - https://bit.ly/3jJtfXW

This article is written by Saurabh Abhay Pawar.

Table of Contents

Introduction

The RERA Act has been enacted in the year 2016 and was enforced throughout the country in the year 2017. Though it was drafted with the aid of existing acts such as ‘Maharashtra Flat Owners Act, 1960’, it was an entirely new perspective towards the real estate legalities. The main motive was to regulate the involved parties with the law present in the construction industry. As this was a fresh establishment, the Act was open to interpretation providing a wide array of legal concepts ranging from technical to practical difficulties which were unforeseen by the act. RERA has been a blessing and has opened up a new scope in real estate laws.

Intention of the RERA Act

The major motive of the RERA Act was to make the promises made by the Builders and Developers binding in a legal manner. Though the agreement is signed by the home buyer and the developer, there was no regulation over the way the possession dates and the other respective promised dates were delivered to the home buyers. There was no dedicated authority to scrutinize the same. Since the enforcement of the Act and Authority, it has enabled home buyers to carry out transactions with the promoters in a trustworthy manner and has also provided the general public to access the project details legally. But, it shall remain the responsibility of the home buyer to carry out his due diligence before investing in the project. The Authority has been in existence with the enactment of the Act. An aggrieved party can submit grievances to this Authority with respect to any issues faced in the project or its transaction. The boon of RERA is its quasi-judicial nature. The Tribunal has the power to interpret the law and to provide relief as it can conduct proceedings similar to court which includes conducting investigations as well.

Real Estate Administration through RERA

This Act has enabled not only speedy redressal of grievances between the promoters and home-buyers but has also provided an open web platform for the home buyer to study the professional background of the promoter. This shall provide the home buyer to gauge the nature of the promoter in handling the construction projects carried out in the past with respect to the completion of promises of various deadlines such as possession date. In the last 5 years, RERA has been helping in resolving matters with respect to real estate. But, it has indirectly made the promoters more disciplined and diligent while providing details to the Govt. during the registration of their respective projects. Transparency in Real Estate Industry was missing which RERA is functioning to make an effect.

RERA is not biased

There has been a misconception that RERA is inclined only towards home buyers and does not really consider the situation of the promoter. As mentioned earlier, RERA has been enacted and enforced to streamline the Real Estate Industry and not to favour a specific party. Even though the Act is more useful for home buyers, the promoters also get sufficient security in the Act which was not present earlier. In fact, RERA simultaneously has got the power to penalize home buyers.

Case Law – M/s. SMP Namrata Associates Vs. Mrs. Suvarna Santosh Nazrekar, 2019:
The agreement between the parties was signed on August, 2019. The home buyer had caused a delay in completing his payment towards the promoter. Although there is not an express mention of the promoter being able to file a complaint against the home buyer in the Act, it is the responsibility of the home buyer to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place, the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent, and other charges. Therefore, Section 19(6) of RERA Act implies that the promoter has the right to reimburse the pending payments from the home buyer and the authority interpreted the same. MahaRERA ordered the home buyer to pay the penalty in the form of interest to the promoter. This judgement confirms that RERA is not biased towards the home buyer and instead, could also create stringent rules to the home buyers in the future.

Recent developments by MahaRERA

Due to COVID-19 and lockdown in first wave of 2020, an extension of 6 months to the promoters was granted for the necessary statutory compliances due to the imposed lockdown. Similarly, the second wave of the virus brought about lockdown again. As the wave was a lot stronger than the previous wave, there has been a severe damage and loss of life. An order dated 6th August, 2021 has been announced yet again granting an extension period of 6 months. MahaRERA declared the force majeure period from 15th April 2021 to 14th October 2021. However, projects scheduled before 15th April, 2021 are not a part of this aforementioned period. Similar extensions have also been announced in states like Telengana.

Recommendations

Compliance of Agreements: There could be a provision in the RERA Act expressly mentioning that the various timelines for different kinds of statutory compliances should be under the prescribed period in the act. Though the Indian Contract Act, 1972 is applicable, this added provision could avoid future disputes and save the time of parties which is utilized in filing complaints to the authority for conveyancing, possession dates, etc. Due to the lack of awareness of laws, the home buyers fail to detect the lop-sidedness of the sale agreements which later becomes a nuisance in case of disputes. There are instances that many of the clauses do not match the provisions in the RERA Act and the home buyers sign the agreements without conducting any basic research.
Awareness in Home Buyers: The home buyers are still of a mind-set that the responsibility of RERA is only to get the promoters, developers and agents registered in their database which is accessible to the general public through the web. RERA is an authority designed to function as a court and has powers to take up matters and can also pass orders accordingly. RERA can also direct imprisonment and levy fines on violations of the provisions. At the same time, home buyers shall be aware that it is their duty to pay all the bills and charges to the promoter in time as it indirectly causes a delay in the completion of the project and thus the possession in the longer term.
Consistency throughout the Country: Currently, there are different Authorities set in different regions in the interest bifurcate the jurisdictions. As of now, various authorities are interpreting the act in different manners which may give rise to complications in the future. There should be just one RERA and no different versions should be interpreted by different regional authorities. According to the Housing and Urban Affairs of India Minister Mr. Hardeep Singh Puri, MahaRERA has been tremendously successful in the implementation of the act. For future stability and setting benchmarks, there should be consistency in the interpretation of the act. Detailed guidelines, rules and manuals shall be issued to protect the Act.
More Powers to the Authority: The Authority passes orders and judgements involving matters with respect to RERA Act. But the power of bringing about justice is still the power of courts and not tribunals. The Authorities and Tribunals are set up only for conclusive solutions based on the disputes. For the execution of the same, different departments have to be accessed which could be a lengthy process. Even while applying for various permissions for the execution of construction, several platforms have to be approached causing delays in the process making it tedious to get the legal formalities completed. The RERA Act registered projects shall therefore be the single-handed window to complete all the legal formalities through the Authority. This issue can be solved by providing more powers to RERA in smoothing the overall process.
Redevelopment Projects: Though the Act is specifically enacted for new construction projects and to eliminate the legal issues faced between the promoter and home buyers, a redevelopment project is also supposed to be a new project which could become a part of the RERA Act. The Act does not include any clauses with respect to redevelopment projects which might include various factors like arrangement of rental homes for flat owners, tenanted societies and others. As metro cities like Mumbai are running out of open land areas for development, re-development projects are in full swing which the RERA Act has not considered and it shall be the need of the hour. The risks level are going higher in redevelopment projects as many disputes arise between the society members and promoters thus leading to a financial loss for both parties.
The solution to Stalled Projects: When the license of the promoters and developers get revoked or due to any kind of disputes between the parties, the matter is taken to the authority and the core project gets neglected. The construction activities get stalled and even after the redressal is provided, the construction gets ignored in most of the situations. A provision is required in the act to revive such projects so that the parcel of land, monies and construction material does not go to waste and can be reused to provide more options for occupancy to the home buyers.
Attractive Schemes: After enforcement of RERA, promoters and developers have to be a lot diligent before taking any decision with respect to construction and promising various dates to RERA as well as to the home buyers. This has retreated many promoters and developers in investing in new projects and also has also hampered new innovations and revolutions in the industry. A new attractive scheme shall be put upon by RERA to keep the promoters confident to try out their new ventures into the market which in turn shall also boost the Real Estate Sector indirectly. Every participant is taking defensive decisions into the industry since enforcement of RERA but the market ought to have innovations to which, support from RERA is a must. To comply with the declared dates by the promoters, it is hampering the innovations as the promoters find too much risk in proposing a new design approach to home buyers.

Conclusion

Overall, RERA has been a boon to the Real Estate administration making all the norms stricter than the pre-RERA period. The industry has seen transparency more than ever before and also provides a fit platform for home buyers to invest in their dream homes. It has brought about discipline in the market for the parties and including the agents. Few factors like consistency in the Act throughout the country, modes of execution of orders and judgements, and application of the Act in different nature of projects shall be amended and expressly specified accordingly to make the process more refined. As it is a relatively fresh aspect in the Real Estate, there could be many more grey areas as mentioned above which the Act needs to specify well in advance. It shall also be taken care that RERA Act should not contradict Maharashtra Ownership Flats Act, 1960 (MOFA) in which, the earnest money deposit limit is 10% and 20% of the total consideration of the home amount respectively. Such contradictions shall be specified to keep validity of all the clauses in the respective Acts.

It can be said that RERA Act it is on the right track to meet the motive of speedy redressal individually to other courts. There has been a remarkable progress in less than a decade in this field. Although the functioning has been improving day by day, some refinement and fine tuning is required in the Act and its execution to take this initiative to perfection. RERA workshops can also be provided officially to the promoters and agents in the initial phase to standardize the working of this legal field. Social network has become a strong medium to reach out to the public and RERA can use various platforms to reach out to the public which could be through video presentations or written articles for awareness.

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Significance of Uniform Civil Code in present day

By

Oishika Banerji

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September 5, 2021

0

This article has been written by Vaibhav Sachde pursuing the Legal Writing For Blogging, Paid Internships, Knowledge Management, Research and Editing Jobs from LawSikho.

Table of Contents

Introduction

India is renowned for its ability to maintain its unity despite its diversity. This is a source of pride for us, but what about the diversity of applicable law? That has become a contentious issue since the first petition, filed in 2019 to seek the establishment of a Uniform Civil Code (UCC) in order to advance national integration and gender justice, equality, and the dignity of women. The concept of UCC will eliminate conflicting personal and religious laws, bringing all citizens under one law regardless of religion or gender. The applicability of UCC is found in Article 44 of the Constitution, which states that “The State shall endeavour to ensure for its citizens a uniform civil code throughout the territory of India.” The article is located in Part IV of the Constitution, which is dedicated to Directive Principles of State Policy (DPSPs). The UCC is inapplicable even when our constitution implies its application. This is because Article 37 of the Constitution expressly states that the (DPSP) Directive Principles of State Policy “shall not be enforceable by any court” but are “fundamental to the country’s governance.” It’s almost like a form of advice to the country.

Uniform Civil Code is a separate set of rules that primarily covers the personal matters of Indian people without prejudice or regard for religion in order to safeguard the fundamental rights and Constitutional rights of Indian citizens. DPSPs are the guiding principles around which the state bases its policymaking for the benefit of its citizens. These DPSPs serve as a guide for the state and must be considered when enacting new legislation, but a citizen cannot compel the state to obey DPSPs. In this article, we will attempt to understand why India requires the UCC in the current environment.

Background

Though the concept of UCC has gained prominence recently, it has been discussed for a long period of time, most notably post-independence, because the British colonists always adopted a divide and rule tactic. This may be observed in The Lex Loci Report of October 1840, which emphasised the importance of keeping concepts such as UCC outside. Additionally, the Queen’s 1859 Proclamation vowed to abstain from interfering in religious affairs. However, this was not consistent with the point of view of India’s well-wishers, since notable leaders such as Jawaharlal Nehru and Dr B.R Ambedkar fought for a uniform civil code during the constitution’s drafting process following independence. However, to avoid resistance from religious fundamentalists and a general lack of knowledge on the subject at the time, they included the UCC in the Directive Principles of State Policy (DPSP, Article 44).

Several significant reforms, in fact, contributed to the promotion of UCC: the Hindu code bill to reform Hindu laws; the amendment to the Hindu Succession Act 1956 on September 9 to provide daughters with inheritance rights; the Hindu Marriage Act, Minority and Guardianship Act, Adoptions and Maintenance Act; and the Special Marriage Act for civil marriages outside of any religious personal law.

The need for Uniform Civil Code

After understanding the concept and background of UCC we will look at its need in India for the present scenario.

To address the gender disparity produced by specific religious laws

India has a history of severely patriarchal and misogynistic traditions perpetuated by society and ancient religious norms that continue to dominate family life. These subject all Indian women to subjugation and cruelty. One such example is that men are typically accorded superior special status in succession and inheritance affairs. Additionally, the UCC will eliminate these disparities and contribute to the improvement of women’s conditions in India.

To address personal laws that constitute a loophole in the legal system

India faces a serious problem with personal laws due to their bias toward the upper-class patriarchal conceptions of society in all religions. As may be seen, panchayats continue to issue verdicts that violate our constitution, and no action is taken. Human rights are abused throughout our country through honour killings and female foeticide. By legalising personal laws, we’ve established a parallel court system based on thousands of ancient values. By eliminating all loopholes, the universal civil code would tip the balance in favour of society.

To aid in the integration of India

A uniform civil code will contribute more to India’s integration than at any point since independence. Much of the resentment stems from some religious sects receiving preferential status under the law, which may be eliminated with a consistent civil code. It will contribute to the unification of all Indians, regardless of caste, religion, or tribe, under a single national civil code of conduct similar to that found in criminal and other civil laws.

To ensure that all citizens have an equal status

While Muslims are permitted to marry many times in India, a Hindu or a Christian will face prosecution for doing the same. Similarly, there are significant disparities between many religious-related regulations. Equal laws in the areas of marriage, inheritance, family, and land are required. Here UCC serves as a saviour, bringing everything under one roof and assisting not only in ensuring greater equity but also in streamlining the legislative and judicial processes.

To deal with vote bank politics

The concept of a uniform civil code will also aid in reducing vote bank politics, which is practised by most political parties during every election. If all religions are subject to the same laws, there will be no room for politicising issues of discrimination, concessions, or special privileges enjoyed by a particular community on the basis of their religious personal laws.

To promote secularism

As we all know, secularism is a critical aspect of our nation, as reflected in our constitution’s preamble. At the moment, we practise selective secularism, which means that we are secular in some areas but not in others. A Uniform Civil Code requires all citizens of India to adhere to the same set of laws, regardless of whether they follow Hinduism, Islam, Christianity or Sikhism. A Uniform Civil Code does not mean that people’s freedom of religion will be restricted; it simply means that everyone will be treated equally. That is authentic secularism. Additionally, as previously stated, in modern classification laws and religion are two distinct concepts, and thus entwining them will result in social disruption and inequality.

To meet the aspirations of the youth

With 55 percent of the population under the age of 25, India is emerging as an entirely different society. These individuals will be future India, and moulding them in an environment that is equal for everyone is essential for India. They are shaped by universal and global principles of equality, humanism, and modernism in their social attitudes and goals. Their concept of the surrender of identity-based on religion must be taken seriously if they are to fully contribute to national progress. Having a Uniform Civil Code allows children to understand the rules and respect the principle of equality in a better manner.

To keep pace with global progress

A Uniform Civil Code has become the hallmark of a modern progressive nation’s legal structure. It demonstrates the nation’s transition away from caste and religious politics. While our economic growth has been the fastest in the world, our social development has been non-existent. Indeed, it is possible to argue that we have degraded socially and culturally to the point where we are neither modern nor traditional. A unified civil code will aid in the advancement of society and help India achieve its goal of becoming a developed nation.

Indian Judiciary’s take on the need for Uniform Civil Code

Over time, there have been numerous judgements ruled by the Supreme court of India where it directly or indirectly recommends Uniform Civil Code

Shah Bano case-

The Supreme Court’s decision in this case is regarded as a major milestone in highlighting the importance of UCC. The case concerned women seeking maintenance after being divorced under triple talaq. The women won in all lower courts, so the husband filed an appeal to the Supreme Court, which was dismissed because the Supreme Court ruled in favour of the wife as per the All India Criminal Code’s “maintenance of wives, children, and parents” provision (Section 125). In addition, the court recommended that a uniform civil code be established.

However, widespread agitation was carried out due to religious sentiments attached to the law, and as an outcome, the then-government, under pressure, passed the Muslim Women’s (Right to Protection on Divorce) Act (MWA) in 1986, rendering Section 125 of the Criminal Procedure Code inapplicable to Muslim women. As a result, the court was correct in emphasising the importance of UCC for having a common basis for jurisdiction.

Sarla Mudgal Case-

In this case, relating to the issue for solemnizing of a second marriage by a Hindu spouse after converting to Islam. The court determined that a Hindu marriage solemnised in accordance with Hindu law may be dissolved only on one of the reasons listed in the Hindu Marriage Act 1955. Conversion to Islam and subsequent marriage would not automatically dissolve the Hindu marriage under the act, and therefore, a second marriage solemnised after conversion to Islam would constitute an offence under Section 494 of the Indian Penal Code (IPC). This made a need of UCC as it creates an ambiguous policy of marriage due to discrepancies between religious laws.

John Vallamattom Case

The case in which Section 118 of the Indian Succession Act was declared unconstitutional after John Vallamattom challenged it on the grounds that it discriminated against Christians by imposing unreasonable restrictions on their willed gifts for religious or charitable purposes. This demonstrated the inconsistencies under religious laws.

Daniel Latifi Case

This case demonstrates how universally applicable law should prevail over unjust religious laws. In this case, Muslim Women’s Act (MWA) was challenged for violation of Articles 14,15 & 21 of the Constitution. The primary point of contention was the amount paid throughout the iddat period. The Supreme Court upheld the act’s constitutionality but interpreted it in accordance with Section 125 of the CrPC, holding that the amount received by a wife during the iddat period should be sufficient to support her during the iddat period as well as for the remainder of her life or until she remarries.

Conclusion

India is “Socialist, Secular, Democratic, Republic”. Diversity is the essence of India, but diversity in law is unjust. As the UCC would establish several laws to regulate individual situations affecting all people regardless of faith, this is both necessary and the cornerstone of genuine secularism. This dynamic shift would not only assist in ending gender-based oppression but would also strengthen the nation’s mainstream fabric and advance unity. There is a need to alter our social framework, which is rife with inequalities, divisions, and other factors that conflict with our Fundamental Rights.

With the passage of time, the necessity for a UCC for all citizens, regardless of religion, has arisen, ensuring the protection of their critical and constitutional rights. Finally, the lack of a standard civil code is damaging to the aim of achieving true democracy, and this must change.

References

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Misuse of gender-specific statutory provisions and rights of men in India

By

Rachit Garg

-

September 5, 2021

0

Men_s_Rights_Activists__Newest_Target__Universities-hero_xxqtj8 — Image source: https://bit.ly/3yQk4cy

This article has been written by Anwesha Panda pursuing B.A.LLB(Hons.) from University Law College, Utkal University, Odisha.

Table of Contents

Abstract

India’s legal structure is based on its societal skeleton system. Although India is the land of diversity; nonetheless, it is yet a far-fetched vision for India to be a land of acceptance. Discrimination based on the gender of a person in employment, in workplaces, in public places, and general acceptance in society is still very prominent. However, in the legal context, the notion of gender neutrality refers to equality in the recognition and protection of the rights of all individuals, regardless of their sexes.

The Oxford English dictionary defines ‘Gender Neutrality’ as an adjective that is appropriate for or applicable to all individuals regardless of their gender. It explains the concept that policies, language, and other social organizations should avoid classifying roles based on people’s sex or gender. It focuses on the equality of each individual with no discrimination.

However, women in our country are always the focus of discussion when it comes to violence. A man is always thought to be the offender. But, due to the recent social and economic changes affecting the societal structure, violence is no longer confined to women. Even men are verbally, physically, emotionally, psychologically, and sexually assaulted. Men do not report these abusive behaviors and thus suffer in silence as our laws favor women as victims of violence. These helpless men do not seek redress or get justice for their miserable situation in family and society.

This article focuses on the misuse of gender-specific statutory provisions in our country and highlights its causes and consequences through various instances. It attempts to explore the extent of this problem and finally states why it is extremely important to have gender-neutral legislation. The objective of this article is to determine whether there is a need to change a few legislations in India from gender-specific to gender-neutral. It describes the abuse of gender-specific legislation in India, emphasizing the significance of gender neutrality and gender-neutral laws. Further, it also concentrates on the equality of men and women, as well as people of any other gender legally, with no discrimination.

Introduction

We’ve been talking about equality for several years now. The issue has been swamped by the print media for ages and the digital media in recent years. Everyone talks about equality and how it is important for a healthy society and how it can be accomplished through numerous processes and practices. However, gender inequality towards women is one of the most prominent examples of inequality in the world. Therefore, strong feminist movements began around the mid-twentieth century, focusing on the grotesque disparities and brutalities that women face daily. An urgent need was felt to make legislative reforms that would put women on par with men, hence giving rise to women-centric statutes in India as well as around the world.

Nonetheless, the enactments that were initiated for women were fair and rational for those times, but over time, they have placed men in such a gullible position that they are victimized by these well-intended women-empowering statutes.

Women-centric legislation in India and its misuse

Crimes against women are common in India. They are neither safe nor protected, whether at home, in public, or at work. Given the prevalence of crimes against women, certain laws aimed specifically at women have been enacted in India to protect them.

The following are a few legislations enlisted for the protection of women’s rights in India:

Protection of Women from Domestic Violence Act, 2005: It is a critical statute that seeks to protect Indian women from various types of domestic violence. It protects women who are in a relationship and are constantly subjected to physical, mental, sexual, verbal, and emotional violence.
The Dowry Prohibition Act, 1961: It forbids the wanting to give or trying to take dowry from women before, during, or after their marriage. The taking or giving of dowry to the bride or bridegroom and their families at the time of marriage is prohibited by this act.
The Indecent Representation of Women (Prohibition) Act, 1986: It aims to prevent improper representation of women in advertisements or publications, writings, paintings, figures, or in any other manner.
The Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redressal) Act, 2013: To ensure women’s safety in the workplace, this Act seeks to protect them from sexual harassment at their place of work. It ensures that there is no sexual harassment against women in the workplace, both in the public and private sectors. Sexual harassment at the workplace also includes the use of language with sexual overtones, invasion of private space with a male colleague hovering too close for comfort, subtle touches, and innuendos.
Immoral Traffic (Prevention) Act, 1956: It ensures in protecting women from trafficking for prostitution as an organized means of living.
Equal Remuneration Act, 1976: It ensures that men and women workers are paid equally for doing the same or similar work. There will be no gender inequality in the context of recruitment or service conditions. Its goal is to prevent discrimination against women in matters of employment.
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994: This act will prevent sex selection before or after a woman conceives. It will reduce unwanted and illegal abortions in the country.
Maternity Benefit Act, 1961: This act regulates the employment of women and maternity benefits mandated by law. It states that a woman employee who has worked in an organization for a period of at least 80 days during the 12 months preceding the date of her expected delivery is entitled to receive maternity benefits, which include maternity leave, nursing breaks, medical allowance, etc.

In addition to the provisions under the Constitution of India, such as Article 14, 15, 16, 19, 21, 39, 39 A, 42, 46, 47, 51A (e), 243 D and 243 T, and women’s specific legislation in India, both the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) include provisions that benefit and support women. While relevant sections of the IPC deal with dowry deaths, cruelty, rape, abduction, and other offenses, the Code of Criminal Procedure includes safeguards such as a man’s obligation to maintain his wife, the arrest of a woman by female police personnel only, and so on. In addition to all these, there are a number of acts and legislation for the benefit of women.

In Rajesh Gupta v. State of U. P, 2005 Supreme Court (See here), the Court had held that reservation of 50% of posts in favor of female candidates is not arbitrary.

Women-centric laws are enacted to benefit women who are perceived to be oppressed members of society. However, these laws must be viewed from a different and broader perspective as well.

India is frequently chastised for its unkempt treatment of women, but have we ever even considered the possibility of a woman harassing or assaulting a man? Whether through reservations or constitutional provisions, the law is skewed in favor of women. The laws that apply to women’s abuse do not apply to men’s abuse, demonstrating disparities in the legal system. There is no doubt that women outnumber men in terms of being victims, but there are many false accusations leveled against innocent men too. In recent years, it has been noted that there has been a significant rise in the filing of false cases by women against men accusing them of crimes that they have never committed, such as false domestic violence claims, sexual harassment allegations, and even false rape cases. There have been reports of women trying to blackmail and threaten men solely with the intent of extorting money. Another reason for demanding money is maintenance after a divorce. Oftentimes, women do not reveal that they are working professionals when claiming maintenance after a divorce. The majority of such complaints are lodged on the spur of the moment over trivial issues. Women filing such criminal complaints do not think about the implications and consequences of filing such complaints against men.

In Chander Bhan v. State, 2008, High Court of Delhi (See here), the Delhi High Court had ascertained that “there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims.”

The growing instances of false allegations against men in India

We can see several instances where it can be seen that women are misusing their protective laws and victimizing innocent men. One such incident is of a young man who committed suicide a few years ago, and the news was widely circulated at the time. The said incident occurred a week after the man was found not guilty of the domestic violence charges. There was not enough proof when he was arrested, but even then, he was arrested to just get the woman justice and to assert that women-centric laws were for the safeguard of women and to indicate that men were the culprits of such offenses. He was later found to be innocent. But when he returned to his usual routine, things were no longer the same for him. He lost his job, and people all around him continued to treat him like a criminal, making sarcastic remarks and demeaning him. He couldn’t stand it any longer and took his own life.

Similarly, on August 23, 2015, Jasleen Kaur, a student at St. Stephens College, Delhi University, posted a photo of a man named Sarvjeet Singh on Facebook, claiming that he had harassed her and made obscene comments. The post quickly went viral, and the man was arrested. Everyone lauded the woman, including famous Bollywood actors and the Chief Minister of Delhi, Mr. Arvind Kejriwal. Even so, the Delhi Police Commissioner had also announced a cash reward of Rs.5000/-. The boy was labeled a “national harasser and pervert” by the media and society. He was labeled as “Delhi ka Darinda”. The twenty-three-year-old Kaur moved to Canada shortly after her viral post to pursue a degree in Human Resources. Meanwhile, Singh was struggling to keep his job and had to go to the police every time he needed to leave the city. However, it was discovered after the investigation that it was Jasleen who had verbally abused and misbehaved with Sarvjeet. Sarvjeet was acquitted of all the charges in the molestation case after 4 years in 2019.

Recently, a video that has gone viral on social media shows a woman identified as Priyadarshini Yadav, getting into a brawl with a cab driver named Shaddat Ali in Lucknow, Uttar Pradesh. In the video, the female is seen slapping the driver more than 20 times. According to the police, the incident occurred on July 30, 2021. When asked why she was attacking Ali, the girl can be heard saying that the cab driver had hit her. Meanwhile, another video of CCTV footage from the signal that was shared on social media showed her walking down the street amid heavy traffic. The cab driver, Saadat Ali Siddiqui, stated that the lady walked in front of his car on the night of the incident, even though the traffic light was green. According to Saadat Ali, he had immediately applied the brakes, after which the woman began pushing him against the car. She even thrashed his cell phone and broke the car’s side mirrors. Furthermore, she had even lodged an FIR against Shaddat Ali stating that he had hit her with his car. Shaddat was even arrested and put behind bars. It was only after the CCTV footage was shared on social media that the truth came out. The netizens and the people on social media slammed her and started demanding her arrest. Finally, an FIR was filed against her.

The question that arises here is, what if the CCTV footage was not out in the open? The police would have believed the girl’s side of the story and would have proceeded with the case according to it.

On March 16, 2020, a woman from Maharashtra’s Palghar district lodged an FIR against a man for purportedly ‘drugging and raping her. Afterward, she filed a petition in the Bombay High Court, claiming that she wanted the FIR to be quashed as she did not wish the case to be initiated. She had mentioned pressure from the family was the reason for moving legally against the man. In the Hon’ble High Court, public prosecutor Aruna Kamat Pai challenged the plea, claiming that the case was under investigation and that the police might well file a charge sheet shortly. She demanded that a hefty fine should be imposed on the lady if the court ruled in her favor, quashing the FIR. Later, the hon’ble court imposed a fine amount of 25000/-to be paid within four weeks.

On December 9, 2020, the Delhi High Court granted relief to Lalit Kumar, a man who had been falsely booked by a woman for filing a false rape case against him. Justice Suresh Kait issued the decision, which quashed the FIR and thus cleared the man of all charges and allegations. The lady who filed the case later admitted that she had done so for personal vendetta, “to teach the man a lesson following a tiff”. Even though the court wanted to charge her with lying and deceiving the court, other situations were taken into account, and she was not charged.

The JMFC Court in Mangalore had issued a non-bailable arrest warrant on September 21, 2014, against a lady doctor and her father for falsely framing her husband and in-laws in a dowry case. She was a resident of Devangere and had stayed with her husband for just fifteen days since their wedding. The doctor would compel her husband to live in her paternal home for as long as she continued to live with him and blackmail him by threatening to file a false dowry case if her demands were not met. The woman filed a false case of dowry harassment because her husband had refused to join her at her paternal home.

In Sushil Kumar Sharma v. Union of India, 2005 (See here), the Hon’ble Supreme Court had observed that complaints under section 498A of the Indian Penal Code (IPC) were being filed based on a personal vendetta. It was stated that “… by misusing the provision, a new form of legal terrorism may be unleashed.” In the judgment, it was also stated that the legislature should find ways to appropriately punish those who file frivolous complaints.

Furthermore, the Hon’ble High Court of Bombay in one of its judgements of 2017 had ruled that filing a false dowry case against the husband amounted to cruel treatment on the part of the wife and could be grounds for divorce.

In Rajesh Sharna & Others v. State of U.P.& Another, 2017 (See here), the Supreme Court did the unprecedented. It issued a directive to the police and magistrates that no automatic arrests or coercive actions would be carried out in response to complaints filed under Section 498A without first ascertaining the veracity of the complaints and the allegations. A bench of justices AK Goel and UU Lalit asserted that there was an increasing trend of cases in which women are abusing the legal provision to indict their husbands and family members, including their parents, minor children, grandparents, and siblings — in criminal cases based on malicious or frivolous complaints, which is a gross violation of the human rights of innocents. In addition, it was stated that the complaints would be verified by a special police officer and a district-level Family Welfare Committee, which would ideally consist of three members who could be “paralegal volunteers, social workers, retired people, wives of working officers, and other citizens who may be deemed to be fit and willing”. However, the court assured that grave physical injury or death of the aggrieved would be exceptions to this directive.

By seeing the aforementioned cases, it could be argued that laws intended to protect women are frequently abused. However, sweeping generalizations here would be highly incorrect as the situation and position of women in our society are not as decent as it should be or as it is claimed to be. Nonetheless, this cannot be used to legitimize and defend the unpardonable deception that some women use these days to destroy innocent lives. Sexual assaults, rapes, dowry harassment, and eve-teasing are all very real issues and heinous crimes. When even one woman abuses these protective laws for personal vengeance or reasons best known to her, she fails many women who genuinely deserve justice and for whom these laws are desperately needed.

Men agonizing and enduring in silence

By seeing the growing pattern of false allegations and misuse of laws that are enacted for the protection of women, a question that arises in the minds of many is, “Are men vulnerable?” The answer to the question is YES, men are vulnerable. They are humans and have feelings. They have their highs and lows in their lifetime. It is because of the mindset of people that they cannot express themselves freely. The concept of patriarchy is still prevalent in our society today. With patriarchy, the idea and concept of toxic masculinity have grown exponentially. Toxic masculinity refers to traditional societal ideals. These are a set of characteristics, behaviors, responsibilities, and cultural expectations associated with boys and men that can be harmful not only to women and society but also to men themselves.

To give everyone an idea, phrases such as “Be a man”, “Only women cry”, “Men cannot wear makeup”, and so on are all examples of toxic masculinity. The concept of toxic masculinity has become so entrenched in our system that it is now slowly devouring it.

Men are molested, body shamed, subjected to domestic violence, including physical, mental, and emotional abuse, and much more. They are often unable to express their suppressed emotions out in the open because they are ashamed and afraid of being ridiculed and labeled as weak. Therefore, cases, where men are the victims, go unreported. All of these have resulted in the worsening of the mental health of men, and even there has been an increase in the rate of suicide and self-harm in them.

The forgotten gender-men

The principle of equality is enshrined in our Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles of State Policies. The Constitution of India not only guarantees equality to women but also directs the state to embrace and consider enacting laws to promote positive discrimination in favor of women and children.

The idea of Positive Discrimination emerged because the stature of women in pre-independent India was underprivileged and deprived. Women in our society do not have the same living standards or privileges as men in our society used to. The presence of male superiority and patriarchy in our nation was the prominent cause of their discrimination. They were underappreciated, and their time was constrained to only doing household chores and taking care of family responsibilities. They were not permitted to assist in the execution or enforcement of other activities. Women were oppressed and were even forbidden from expressing or communicating their ideas or opinions. More than anything, some age-old ancient practices that were and still are considered social evils were followed. Sati was one of these practices, in which women were tossed into the pyre of their husbands and burned alive. Polygamy, child marriage, female infanticide, and other practices were also practiced. Moreover, even today, some of the practices are still alive, like polygamy and female infanticide. Child marriages are still prevalent in some remote corners of our society.

So, the incorporation of women-centric provisions into our Constitution was an attempt by our leaders to improve the standard of living for women in our country and to make it easier for them to stand on equal footing with men in our society.

In Air India v. Nargesh Meerza, 1981, Supreme Court (See here), the Air India Regulations provided for the retirement of an air hostess if she became pregnant within four years of service. The Hon’ble Supreme Court had ruled that those conditions were unreasonable and arbitrary. It had further observed that terminating the services of air hostesses in such circumstances was not only an insensitive and cruel act but also a violation of Article 14 of the Constitution.

The author strongly supports positive discrimination against women. However, the author believes that a minor change in gender-specific laws could make a significant difference in society. We all know that ‘Change is the Only Constant,’ and with changing times, laws must also be modified.

Men and women are the two wheels that contribute to the smooth and balanced movement of the vehicle known as society. Even minor damage or injury to any of the wheels would cause society to crumble.

The author agrees that women in our society are oppressed, deprived, abused, mistreated, and subjected to a variety of other ills. However, men in our society are also subjected to these, albeit in smaller numbers. They are not just reported; they are not brought to light because of the name-calling and repercussions it could have. As a result, we must institute certain changes, beginning with teaching our children the principle of equality and working to have laws changed to be gender-neutral.

Besides, in the landmark case of National Legal Services Authority v. Union of India, 2014 (See here), the Hon’ble Supreme Court had explicitly stated that transgender people should be recognized as a third gender and should be entitled to all Fundamental Rights, as well as specific benefits in education and employment.

Moreover, in the case of Navtej Singh Johar v. Union of India, 2018 (See here), a five-judge constitution bench of the Supreme Court of India that consisted of Chief Justice Dipak Mishra and Justice Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman, decided in favor of Section 377 decriminalization. They held that consensual sexual acts between adults are not a crime, and overruled its very own decision of 2013 pronounced in the Naz Foundation case, calling the previous law “irrational, arbitrary, and incomprehensible.”

Hence, the author is not opposed to laws enacted to protect and uplift women but wishes to state that more gender-neutral provisions can be enacted for the benefit of our society and generations to come. The decriminalization of Section 377 of the Indian Penal Code is a wake-up call for our nation to recognize that it has failed to acknowledge the fact that the demand for flexibility in the current legal scenario is evident. It can be stated that our country has reached a point at which gender-neutral laws should be considered necessary to eliminate the abuse of the existing gender-specific laws and to safeguard the integrity and the chastity of the Fundamental Rights guaranteed under the Constitution of India equally to every individual of our nation.

Suggestions

These are a few suggestions which if included in our laws, could help in bringing about gender-neutral provisions in our legal system.

Section 498A of the Indian Penal Code, 1860, safeguards a woman from the cruelty of her husband and his family and relatives. by replacing the word ‘husband’ with the word ‘spouse’. It could be more gender-neutral while also being more positive and propitious.

In parallel, the required alteration and amendments could also be made in the Protection of Women from Domestic Violence Act, 2005, which is consistent with Section 498 A of the Indian Penal Code, 1860; or a similar provision could be enacted for the protection of men as well.

There are laws made to protect women from sexual harassment in the workplace, but there are no laws as such which could help men. Hence, enacting such laws could be a step towards gender neutrality.

As a response to the landmark case of Sakshi v. Union of India, 2004, Supreme Court (See here), the Law Commission of India had proposed in its 172nd report in 2000 to replace the definition of rape with that of ‘sexual assault’ to encompass all genders within its scope.

A few years down the line, the Justice Verma Committee of 2012 (See here) advocated gender-neutral laws in its report. It suggested using the word “person” instead of “woman” to cover all forms of sexual violence. The Criminal Law (Amendment) Ordinance 2013 was published in The Gazette of India, supporting the Committee’s position. Sexual harassment, voyeurism, and stalking were added to the Indian Penal Code in the spirit of gender-neutral laws, and amendments and deletions were made to the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act.

However, the ordinance on making all laws gender-neutral only lasted 58 days before being repealed and replaced by The Criminal Law (Amendment) Act 2013, which reinstated gender-specific laws.

Conclusion

Unfortunately, the concept of gender neutrality is regarded as a “backlash against feminism”, when in fact it is a step toward achieving equality and eliminating the persistent battle between genders that serves as an obstacle to development, with the rights of one class abrogating the rights of another.

According to the National Coalition of Anti-Violence Projects (NCAVP), nearly half of the transgender people in India have been assaulted or raped at certain a point in their lives. Apart from the criminal statutes about sexual offenses failing to protect the male community and the third gender, it is apparent that the constitutional mandate is continuing to create an intelligible differentia in favor of the women community that crushed the core purpose of the Fundamental Rights.

With the progressive evolution of the socio-legal framework, it has now become extremely necessary to acknowledge the rights of men and the LGBTQ+ community because of the decriminalization of Section 377 of the Indian Penal Code, and also because Violence is gender-neutral. Physical, verbal, emotional, and financial abuse can all be perpetrated by women against other women or men. Sexual abuse can also be inflicted by a woman on another man and vice-versa. As a result, it is critical to enact gender-neutral laws and provisions that prohibit all forms of violence, whether fomented by a man, a woman, or anyone else in the matter thereof. Ultimately, there is a dire need for restructuring of the laws to protect the victims of a crime instead of a particular gender.

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A multi-dimensional aspect of protection against ex-post-facto laws

By

Sneha Mahawar

-

September 5, 2021

0

This article is written by Aditi Das.

Table of Contents

Introduction

Certainly, the upsurge of crimes today dominates the majority of the newspaper and electronic media. However, are all summons against the accused legitimate? Seemingly, of the thousands of cases that are filed every day, at least hundreds consist of guilt-free accused, who are nevertheless put behind bars, owing to the flaw in the judicial system. On the account of this, the Indian Constitution has laid out certain provisions under Article 20, inclusive in Part III. However, the crux of this paper will be majorly dealing only with Article 20(1), while brief explanations of the other two clauses [Article 20 (2), Article 20 (3)] will also be considered. Article 20(1) is also known as “Ex-post Facto” Laws, that can be comprehended as “After the fact; by any act or fact occurring after some previous act or fact, and relating thereto; by subsequent matter; the opposite of ab initio”, meaning, laws which criminalize an act or escalate its punishment.

The consequential feature of the Article is to preserve and protect the right and privilege of guilt-free individuals, from being penalized for offences that were legal when committed but became illegal with the advent and enhancement of time. For instance, the Dowry Prohibition Act,1961 commenced on 20th May 1961. Hence, a person who demands dowry will be guilty of the same under the Act from 20th May 1961 and not before that. The three kinds of Ex-post facto laws are:

A law that proclaimed some act or omission as an offence for the first time after the completion of the same. It means that if an Act is not considered illegal while the commission of a crime, the same cannot be termed as an offence after an Act for the same has been passed. The clause was discussed in the case of Kaniayalal v. Indumati, wherein the court held that “A law enacted later, making an act done earlier (not an offence when done) as an offence, will not make the person liable for being convicted under it.”
A law that magnified the sanction for an offence succeeding to the commission of that offence. This clause aims at protecting the offender from encountering a sanction greater than what he might have been subjected to while committing the act. This clause was decided in the case of Wealth Tax Comr. Amritsar v. Suresh Seth, wherein the court held that “A person cannot be made to suffer more by an ex-post-facto law than what he would be subjected to at the time he committed the offence.”
A law that suggests a fresh and non-similar procedure for the prosecution of an offence succeeding to the commission of that offence.

Of the three categories, only the first two are protected by Article 20(1). In the landmark judgement of Kedar Nath v. State of West Bengal, the court held that an act that is deemed to be an offence under the criminal law, cannot be applied retrospectively and ought to be prospective always. Similarly, in Mohan Lal v. State of Rajasthan, it was held that only the conviction and sentence are included in the prohibitions of Article 20(1), not the procedure of trial. No fundamental right pertaining to trial is available to a person who is accused of an offence, except so far in violation of any other fundamental right or way of discrimination under the constitution. Also, the court held that Article 20(1) implies that “the rule that there will be no retrospective infliction of penalties heavier than those existing ones at the time of commencement of offence.”, in Maru Ram Etc v. Union of India & Anr. Having said that, there are a few exceptions to these rules as well. One being in the case of Rattan Lal v. The state of Punjab, wherein the retrospective application of the criminal law was allowed by the Apex court relating to an issue where the reduction of sanction was demanded.

Apart from discussing the Ex-post facto Law in India, the paper will focus on the multi-dimensional aspects of the Law of several countries like the USA, UK, Ireland, Japan, and likewise, analyze why the law is often frowned upon by these countries and shed light on the theory of the same.

Scope

The landmark case of K. Satwant Singh v. State of Punjab highlights the scope of Article 20(1). Prior to 1943, there was no mention of minimum sanction under Section 420 of the Indian Penal Code and an unlimited amount of fine could be imposed. Post-1943, the Supreme Court laid down that, there is a need for a minimum sentence and that the court ought to inflict on the accused mandatorily. In this case, the Apex Court held that there was not an infringement on Article 20(1) through the trial process as there was no chance of imposing a greater penalty than the existing penalty, which never existed prior to 1943 or was unlimited in nature. The judgment read, “A law providing for a minimum sentence of fine on conviction does not impose a greater penalty than what might have been inflicted under the law at the time of the commission of the offence when such a law authorized the imposition of an unlimited fine for the same offence”.

The scope of Article 20(1) does not extend to the violation of Tax Laws. Therefore, the increase of penalty for violation of a statute relating to tax applied retrospectively, will not be held invalid. This principle was held in the case of Shiv Dutt Rai Fateh Chand v. Union of India. The reason behind this rule is that, the word “Penalty” used under Article 20(1) does not extend to penalties for offences other than criminal offences. Hence, when a taxing statute’s penalty is in question, it will be referred to penalty under civil law. And the scope of Article 20(1), therefore is limited only to criminal offences. Also, only when an ex-post-facto law pacifies the rigour of criminal law, it is believed to not come under the ambit of Article 20(1), when was the case in Rattan Lal, as discussed earlier in the paper.

History

Earlier in the paper, we have seen the Latin derivations of the Ex-post facto law along with few cases laws that have given the new definition to the law. Let us now see from where this law has been origin from. In 1928 the All-Party Conference appointed a Nehru Commission which in its report discussed retrospective laws among which Ex-post facto law was one of them. The report stated that these retrospective rights need to be implemented in the future Constitution of India. Further, while drafting Article 20 of the Constitution, our framers, B.R. Ambedkar and B.N. Rao definitely had the US provisions in their minds. Not only in the US and India, but the law is also prevalent and accepted by the European Convention of Human Rights, United Nations Covenant on Civil and Political Rights (ICCPR)- Article 15(1) and Article 11 in paragraph 2 of the Universal Declaration of Human Rights as well. These three organizations have collectively held that the law should allow no person involved in an offence, to be punished when there was no law on the offence at the time of the commission of the same.

The primary case of ex-post-facto law was seen under the US Apex Court during the 1990s in the case of Calder v. Bull, wherein the court came up with the explanation of the law stating that an ex-post-facto law is any law that criminalizes an individual for committing an offence which was not an offence under the law during the commissioning of the act or which grants sanctions quite higher than the offence. In another case named Fletcher v. Peck the Chief Justice, Marshall also explained the definition of the law. It held, “one which renders an act punishable in any manner in which it was not punishable when it was committed”. Now, both the definitions are extremely similar in nature, just different in sentence framing. With the advent of time, criminal law has also been evolving, and there are several instances where the criminal law punishes the offender for a crime, who is not bound by the offence under ex-post-facto law. This happens mainly because the law brings into picture several other crimes which add up to the intensity of the crime then committed. Along with this, because of the amendments and modifications in the law, the rule of evidence also seems to be have been erased at times, which further traps the offender. By this, it becomes easier for the offender to experience jail terms than they would be experiencing if these new modifications had not come into the picture. In the case of Beazell v. Ohio, the court granted the implementation of Ex-post facto laws against the structural guarantees. It stated, “Any statue which punishes as a crime a previous act which was innocent when committed violates the constitutional guarantees”.

In some cases where even if the statute prefers a procedural form, and the same affects the substantial rights, then such law will fall under the ambit of Ex-post facto laws. the same was held in Winston v. State. The penal laws in the UK are interpreted in such a manner as if there is no existence or implementation of the ex-post-facto laws and this is mainly because the parliament does not approve of the criminal laws applied retrospectively. In the case of Waddington v. Miah, the court did not allow the interpretation of the Immigration Act, 1971 and denied its retrospective effect and this was done under Article 7 of ECHR, the one which forbids and grants independence from the ex-post-facto law. The component prior to sanctioning a law is that it will have an impact ex nune which deciphers to any situation ensuing to the requirement of that enactment.

The Corpus Juris Civilis of Justinian broadcasted a solid assumption against this law. It was introduced in the British legal system by Bracton, while it was funded by Blackstone, and the guideline has become familiar to the individuals as a “fundamental show of statutory development”. Within the territories of the US, this law and its retrospective applicability are completely barred from implementation considering the federal principles of their Constitution. Now that the paper has discussed the history of the law and its applicability in different regions of the UK, US, likewise, let us now focus on the provisions that have been given under the Ex-post Facto laws.

Two-fold theory and securities under the ex-post-facto law

Under Article 20(1) of the Indian Constitution, there is a theory by the name of the Two-Fold theory. Now, this theory is nothing but the same provisions that law provides under the article. We have already discussed the provisions under the same, however, just to comprehend better, the paper will state the two principles of the theory. They are:

When an offence is not considered as an offence under the law during its commission, the accused person cannot be put behind bars.”
The accused person cannot be given a penalty that is higher than the act committed during the offence.

Under this article, trial procedure or any change of procedure is not protected, however, it only gives security for conviction and sentence. Hence, no citizen has any fundamental right to protection for trial, and the only protection is during constitutional cases where other fundamental rights are violated or when there is mass demand for a particular question of law.

As mentioned several times earlier in the paper, the only safeguard one can have under Article 20(1) of the Indian Constitution is that saving oneself from getting a jail term, because of the acts, not being a crime, while the commission of the same. At the same time, our Constitution is extremely vast and hence while interpreting the same, it is a must for confusion and questions to arise. In the case of State of West Bengal v. Anwar Ali Sarkar, the court was of the opinion that, “I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these laws which have been called in question offend a still greater law before which even they must bow?”. Here, in layman’s language, the court said that there are so many cases every day and interpreting the laws regarding the same is extremely tedious. Why? Because one has to dig into the history and origin to come to the final conclusion, and sometimes one theory of law has no history. How can one interpret the same then?

Along with this, it is to be noted that Fundamental rights do not come under the ambit of Article 20(1) and have no effect or impact, even though the doctrine of Eclipse under Article 13(1). This was held in the case of “Keshavanan Madhavan Menon v. the State of Bombay”. It stated that “the invalidating of the laws through the doctrine of eclipse which is present in Article 13 (1) which also deals with the future implementation of the law”. This can be better comprehended by an instance. There is no availability of fundamental right of trial for a person who has been guilty of an offence; such person however has an exception in cases where the provisions of the law have been illegally used against him. In the case of West Ramnad Electronic Distribution co. Ltd v. State of Madras, the court was of the opinion that the retrospective laws do not fall under the term- Law in force and are therefore named by ex-post-facto law only. Hence, under the Indian Legislation, Article 20(1) safeguards the right of individuals against personal liberty and living with dignity.

Rule of beneficial interpretation and judicial precedents of the law

Rule of beneficial Interpretation was primarily laid down in the case of “Rattan Lal v. State of Punjab”. In this case, the court explained that this rule simply reduces the sanction and penalty upon the accused. For instance, if a person is sentenced to jail for a term of 2 years and later a new modification comes up regarding the same law to reduce the sentence to 1 year, in that case, the accused will only be given a 1-year jail term of punishment. It basically says that the retrospective theory of the amended law will be applied to the offender and he is entitled to all the remedies available under the amended law. This rule is mentioned under Article 20(1) of the Indian Constitution. Ex-post facto law has played a significant role in the Indian Legislature. Apart from these cases, the paper will further analyze several other cases where the courts have pinned down their opinion on both the merits and demerits of having such a law in existence.

The Apex court in the case of R.S. Joshi v. Ajit Mills Ltd tried to build a nexus between the ex-post-facto laws and their importance in regard to the Constitution of India. The court stated that this type of law gives constitutional protection against all cases falling under the criminal procedure, this protection is limited to the criminal courts and the same cannot be claimed under other laws such as preventive detention, for any acts done before an amended law, for press law security and likewise. This could be considered as one of the demerits of the ex-post-facto laws. Now, when there is a law, there have to be exceptions. Hence, laws such as usage of canal water which are unauthorized, implementing exclusive prices for the same do fall under the exceptions of ex-post-facto laws. The same was held in the case of Jawala Ram v, Pepsu. Another important exceptional judgment was given in the case of “Shiv Dutt Rai Fateh Chand v. Union of India”, which stated that where there is a violation of taxing laws and statutes, the duration and gravity of sanction can be greater than that of the offence committed. It is because the taxing laws do not violate article 20(1) simply it being a continuing offence.

In another case of Union of India v. Sukumar, the court was of the opinion that if any court opts for a procedure as a fundamental right, the same does not come under the ambit of Article 20(1). It further stated, “if a law retrospectively changes the place of trial of an offense from any particular court, for example, a criminal court to any tribunal like administrative tribunal is not hit by Article 20(1)”. In the case of “Sujjan Singh v. State of Punjab”, the court held that not every law is termed as retrospective law only because a specific part of the same law is in existence since the sanctioning of the amended law. It further granted the conviction of an accused who sought protection under Article 20(1) stating that the modified law is not eligible to hold him liable against the sanction. For a better understanding, let us see this instance. Suppose there was a law in 1932, and the same was replaced or amended by the law of 1952. Now, a person committing an offence in 1955 can still be liable under the 1932 Act. The same was held in the case of “Chief Inspector of Mines v. Karam Chand Thapra” where the court held, “As these rules had been functioning since then, it did not constitute retrospective legislation, an offense committed in 1955 could be still punishable under the new enactment as those laws and rules were in existence by the fact at the date of the commission of the offense”. Lastly, the court has given a provision that when an amended statue replaces the older statue, the laws of the older statue stand repealed. However, if the offences of the older statute and amended statute are not similar, then the act will fall under Article 20 (1) but against the ex-post-facto laws. This principle was held in T. Barai v. Henry Ah Hoe.

Conclusion

In comparison to the American Constitution, the Indian Legislation has always given a broader explanation of Article 20(1) in all terms. The same is somewhere or the other apricated because of the vast opportunities offered to the accused. Throughout history, the retrospective laws have given justice to a wide range of society who at some point of time have been illegally detained. Some have been lucky to get a reduced sentence term. At the end of the day, equity, justice and good conscience are what is expected from the judiciary and laws like ex-post-facto definitely serve that purpose. These laws are more of a security or protection towards injustice to the innocents, and the article provides for the protection of fundamental rights of every individual, thus keeping the spirits of our constitution alive still. Throughout the paper, the author aims to bring up the law in light of various cases and the judicial take of the judges on the same. Some judges have gone beyond the theory to find out the merits and demerits of the same as discussed earlier in the paper. Such laws and rules like the one of beneficial interpretation are of much need in today’s society and definitely serve as a boon to the country.

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Mig 29, Ryanair and a mid-air ‘hijacking’ : violation of international aviation laws by Belarus

By

Sneha Mahawar

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September 5, 2021

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This article is written by Bhavyika Jain, a student at Symbiosis Law School, NOIDA. This article deals with the recent incident of air hijacking in Belarus and how it violated international aviation Laws.

Table of Contents

Introduction

Skyjacking is another term for hijacking an airplane. In Peru, the first occurrence of hijacking was reported in 1931. The first aerial hijacking in Asia occurred in 1948 on a flight bound from Macau to Hong Kong; all 25 people aboard were killed when the airplane crashed into the Pacific Ocean.

Recently, Belarus has been accused of hijacking a European airliner and is responsible for committing state terrorism. They have forced a Ryanair flight to make an emergency landing in Minsk following a bomb threat and arresting an opposition blogger critical of autocratic President Alexander Lukashenko.

Today, hijacking of planes is uncommon. This is due in part to international rules and agreements enacted to deter them. The majority of international accords against plane hijackings date from the late 1960s and early 1970s when the number of hijackings was at its highest. Individual and nonstate hijackers were in mind when these agreements were made, not state-sponsored plane diversions.

Hijacking: All that happened

In May 2021 the Ryanair flight was en route from Athens, Greece to Vilnius, Lithuania. While flying into Belarusian airspace, an air traffic controller notified the crew of a bomb on board and asked them to land. In no time, a Belarusian MiG 29 fighter jet intercepted the flight and directed it towards the capital city of Minsk. There was no bomb present in the aircraft, the real reason behind the forced landing of the civilian flight was to arrest Roman Protasevich.

Lukashenko has imprisoned and tortured thousands of Belarusians since the most recent rigged election in August, with the West largely offering thoughts and prayers. Lukashenko’s paranoia has reached ludicrous extremes, ranging from appearing in public with a gun to imprisoning people for wearing white and red socks, the opposition flag’s colors. The fact that his dictatorship went to such an extent to apprehend Protasevich demonstrates how important independent journalists have been in the country’s continuing revolution.

About Roman Protasevich

Protasevich is the co-founder of the Telegram-based NEXTA media source. In Belarus, the media does not have absolute freedom and are restricted under Lukashenko’s long rule, notably following the 2020 election, when most publications were outlawed, the channel provides a rare source of independent news. As a result, NEXTA has developed as a critical venue for opposition forces to share information and coordinate their opposition against Lukashenko.

His anti-Lukashenko activities date back to 2011 when he was dismissed from school for engaging in a rally as a teenager. He was eventually admitted to Belarusian State University’s Journalism School but was expelled from there as well. He was in eastern Ukraine in 2014-15, fighting alongside the ultra-nationalist Azov Battalion against Russian-backed separatists. Belarusian state media have seized upon it in an attempt to portray Mr. Protasevich as an extremist. The blogger left Belarus in 2019 and in January 2020 applied for Polish citizenship.

Worldwide reactions

Leaders and international organizations alike expressed their shock and condemnation of the incident. A non-EU country compelled an Irish plane, registered in Poland, to land in its capital while flying between two EU countries. The safety of hundreds of passengers was put at risk by the use of MiG 29 in order to arrest only one passenger on board. Passengers’ safety is unimportant, as evidenced by the plane’s proximity to Vilnius rather than Minsk. If safety had been an issue, the plane would have had made a fast landing in Vilnius. From the perspective of international aviation law, it was a sort of ‘hijacking’.

Sanctions’ sacredness

The incident has invited serious criticism and backlash from many nations. Most importantly, the actions have been labelled “piracy” and “hijacking” by the European Union. It has announced that economic and other penalties imposed earlier in 2020 will be reinstated. Potash and oil, both of which are crucial to Belarus, could be targeted. The North Atlantic Treaty Organization (NATO) and the EU have urged a halt to international aircraft over Belarus; the United Kingdom has already halted its flights over the country for international investigations and collective action.

Sanctions have evolved into a key component of foreign policy. They may, however, have unforeseen consequences. The sanctions can be used as a rallying cry at home, against the imposing nations, to reclaim their dwindling popularity. Sanctions can also aid rivals in advancing their foreign goals. Escalation is also a possibility. Counter-sanctions and indirect retaliation, such as consumer boycotts, cyber attacks, and smear efforts, resulting from sanctions. Another threat is the targeted country’s long-term isolation and measures to minimise its economic reliance on Western and other sanctioning nations. The more sanctions are applied, the more their target countries will seek other ways to protect themselves from their effects.

International aviation law

The Chicago Convention on International Civil Aviation, 1944, and the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971, are the two most important international treaties governing international civil aviation, to which Belarus is a signatory. According to Article 1 of the Chicago Convention and customary international law, states enjoy sovereignty over their airspace. States, on the other hand, ‘recognise’ their commitment to refrain from employing weapons against civil aircraft in flight, as stated in Article 3 bis (a) of the Convention, which is a direct reference to the UN Charter’s requirements. This is (in part) a reiteration of Article 2(4) of the Charter’s prohibition on the threat or use of force (though it goes beyond that as it prohibits the use of force even against civil aircraft registered in the territorial state). A state may order a civil aircraft flying above its territory to land at a designated airport only if it is flying “without authorisation” or “where there are reasonable grounds to believe that it is being utilised for any purpose inconsistent with the goals of this Convention.”

Annex 2 of the Convention also stipulates that interception should be used as a last resort. As a result, fighter jets intercepting Ryanair planes and forcing them to land at a different location could threaten the lives of the crew and passengers. According to Article 1(e) of the Montreal Convention, any person who unlawfully and willfully provides information that he knows to be incorrect, endangering the safety of an aircraft in flight, commits an infraction.

Furthermore, in line with Article 10(1) of the Chicago Convention, contracting states must take all practical measures to prevent the offences listed in Article 1 in conformity with international and national laws. To summarise, Belarus is also in violation of the Montreal Convention by forcing an airplane to land under the guise of a phoney bomb hoax. When a flight is delayed or interrupted due to the commission of one of the offences listed in Article 1, any contracting state in whose territory the aircraft or passengers and crew as soon as possible, and shall without delay return the aircraft and its cargo to the persons lawfully entitled to it. Protasevich should be released from jail and permitted to proceed to his intended flight destination, Vilnius, under this rule.

Under established international law canons, the aspect of detention is also debatable. Despite being a Belarussian citizen, Protasevich was held on Polish soil as the flag state of the aircraft that was still in transit. According to this argument, he was protected under the European Human Rights Convention. Belarus is not a signatory to the pact, although Poland is. The European Court of Human Rights has already ruled that the convention applies to aircraft and ships registered or flying the flag of a member state. The onus is on Poland to take diplomatic and legal action to achieve Protasevich’s release.

Repercussions

A case against Belarus may be initiated by the nations such as Poland, Ireland, and other nations (who are part of the Montreal Convention) in the International Court of Justice. The problem of dispute resolution is addressed in Article 14 of the Montreal Convention. Article 14(1) states that any dispute over the interpretation or application of the convention that cannot be resolved through negotiation shall be submitted to arbitration at the request of any of the parties, and if such arbitration cannot be organised by agreement of the parties within six months, shall be referred to the International Court of Justice by any of the parties. Belarus, on the other hand, has declared that it is not bound by this clause, as it is clearly permitted to do under Article 14(2). However, this does not preclude governments invoking Belarussian responsibility from concluding that Belarus has become accountable for a violation of the convention and taking countermeasures as a result.

Belarus has not taken steps to protect itself from the Chicago Convention’s Article 87, which states that any dispute arising under the treaty can be referred to the council of the International Civil Aviation Organization, the UN body in charge of civil aviation and that any decision made by the body can be appealed to the International Court of Justice. Poland and other EU countries have the right to bring legal action against Belarus. It is worth noting that all UN members are ipso facto parties to the ICJ statute, implying that they ‘accept’ it. Consent to the court’s jurisdiction is expressed through their acceptance of the Chicago Convention and Article 84.

Belarus has clearly broken both the Chicago and Montreal conventions by forcing the Ryanair plane to land in Minsk. Belarus, in particular, violated the Chicago Convention because there appear to be no reasonable reasons for concluding that the Ryanair flight was being “used for any purpose inconsistent with the purposes of this convention.” Poland, as the aircraft’s flag state, is entitled to compensation from Belarus. In the Chorzow Factory Case (1927), the Permanent Court of International Justice, the forerunner of the ICJ, rendered a significant judgment, stating, among other things, that restitution must be provided for violations of international law. “Reparation must, as far as practicable, wipe away all the consequences of the illegal act and re-establish the scenario that would have been, in all probability, if that act had not been committed,” the court ruled. Beyond the civil aviation component, the impacted parties may investigate grounds for international human rights violations.

One reason for broadening the scope of its sanctions against Belarus is a concern that international law lacks binding dispute resolution and enforcement procedures. International law is based on the ideas of voluntarism, collaboration, and different treaties that allow member countries to self-regulate. There have been calls to incorporate aviation accords in post-World War II international trade treaties, arguing that any violations would be subject to the WTO’s dispute settlement mechanism. The procedure, however, is slow and is designed to deal with conflicts involving international business rather than flagrant mid-air hijackings.

Conclusion

Air travel, like international shipping, is a vital aspect of the international economic order, despite being restricted due to Covid 19. Though Belarus’ acts will have to be dealt with more politically than legally, the international community should not be afraid to shock Belarus. If overlooked, such activities may become routine, resulting in serious consequences. It is up to the guardians of international law to prevent a new system from emerging, in which piracy begins in the air rather than on the high seas, and the targets are dissenters, protestors, and individuals rather than gold.

References

https://www.ejiltalk.org/aerial-incident-of-23-may-2021-belarus-and-the-ryanair-flight-4978/

https://nymag.com/intelligencer/2021/05/belarus-grounding-of-ryanair-flight-broke-international-law.html

https://www.theguardian.com/world/2021/may/23/belarus-diverts-ryanair-plane-to-arrest-blogger-says-opposition

https://www.aljazeera.com/opinions/2021/6/2/the-belarus-plane-hijacking-reflects-appeasement-of-tyranny

https://www.washingtonpost.com/outlook/2021/05/27/swift-response-belarus-plane-hijacking-signals-historic-shift/

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Multiplicity of arbitration agreements : a matter of concern

By

Oishika Banerji

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September 5, 2021

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

Table of Contents

Introduction

Conflicts of interest are a part of human life. In human affairs, we cannot avoid disputes but can resolve them. Alternative Dispute Resolution or ADR is getting popular these days as it not only includes arbitration but also other dispute resolution mechanisms such as mediation, conciliation, negotiation, and Lok Adalat. This concept of dispute resolution mechanism was not only introduced to reduce the burden of the courts but also to resolve the issues more effectively. It promotes the idea of “access to justice” for all. But the proceedings of arbitration have become more complex and expensive due to several reasons, wherein ‘Multiplicity of arbitration agreements is one of the major issues. This issue of multiple proceedings has defeated the main purpose of a speedy resolution. The multiplicity of agreements plays the role of an evil that is the chief reason for failing the purpose of the arbitration. Multiplicity has always been an obstacle in adjudicating and delivering judgment.

Relevant case law

In the past, even the Supreme Court has expressed disappointment in arbitration becoming a time-consuming and highly expensive process. Multiple agreements of arbitration are playing the role of an obstacle in serving justice. Parties tend to refer the dispute to the arbitration courts in the various stages. It increases the efforts of the parties, the amount spent on the proceedings and it consumes a lot of time. To address the issue of the Multiplicity, Hon’ble Delhi High Court in the famous case, Gammon India Ltd. v. NHAI has dealt with the aspect of the multiplicity of agreements, multiple proceedings, multiple arguments and multiple awards which will lead to confusion and contradiction. Further the Court added that “Arbitral proceeding is not strictly governed by Code of Civil Procedure, 1908 (CPC). Court concluded it as “it is possible for the parties to invoke multiple arbitration in one contract, unlike civil suits being filed under CPC.

Moreover, the Court also observed and added in the conclusion that in the construction of a contract, disputes related to breach, delay, termination etc are the major core of the disputes. In such cases, it is possible that multiple proceedings are adjudicating at different tribunals at the same time. Court held that these types of situations should be avoided.

Multiple arbitration agreements are the reason for the confusion which usually arises between –

Same parties under the same agreements;
Same parties under different sets of agreements;
Similar agreements in common entities where another entity is common.

Courts in India have provided guidance from time to time on how to avoid multiple proceedings in related issues. As per the administration of justice, once the award has been passed by the arbitrator, the dispute has been settled between the parties. The Division Bench of Delhi High Court in the year 1985 held that “ Once an award by an arbitrator has been passed the dispute between the parties is said to be settled.”

To deal with the first two above-mentioned issues, Delhi High Court provided a solution that the arbitration clause should be drafted in a way that all the claims are referred together to one sole arbitrator/ arbitration tribunal. In addition to this, the Court said that any further issue should be referred to the same tribunal for resolution. Further, the court also clarified that the tribunal may pronounce separate awards with respect to multiple references to avoid contradictory findings. In the case of ‘Similar agreements in common entities where another entity is common’, the Court confirmed that the opportunity to resolve the issue should be granted to the same tribunal. In the case where such a thing is not possible, then the challenges to the award rendered, if pending in the same court, could be heard together.

Res Judicata in arbitration proceedings

The Hon’ble Court has addressed the scenario in the relevant case titles as Dolphin Drilling Ltd. vs. ONGC, in case a dispute has arisen and arbitration is needed to be invoked, the party invoking the arbitration has to include all the claims that have already arisen on the date of invocation of the arbitration proceedings should be included about arbitration. It has been guided by the reason that it is against public order to allow someone to raise claims as per convenience. According to Order II Rule 2 of CPC, if any dispute was not raised, no separate reference could be brought for such dispute. As per Order II Rule 2 of the CPC, every suit must include the whole claim that a party is entitled to. And when the part of the claim is relinquished, the same cannot be sued thereafter.

In support of this, the principle of Res Judicata has been applied in the arbitration proceedings.

The basic meaning of the word Res Judicata is that the issue has previously been taken into consideration and now cannot be determined again. The objective of this aforesaid principle is to consider all the issues together and not litigate upon the same issues repeatedly. The Delhi High Court also felt that under any provision of the Arbitration and Conciliation Act, 1996, specific disclosures should be made by the parties which shall include a number of the arbitration reference, arbitral tribunals, or pending proceedings to collectively resolve the issue in one go.

The Calcutta High Court, based on the principle of Res Judicata, refused to allow the plaintiff to claim for damages as not claimed in previous concerning proceedings.

While ADR continues to be popular, it has loopholes that include multiple arbitration agreements arising out of one parent contract that needs to be rectified. We need to make laws that expedite the process and make it affordable, which is the essence of Arbitration. It has been observed that most studies about complex arbitration deal with multiple arbitrations while in parallel proceedings this doesn’t happen. To resolve this issue of multiple arbitration agreements, it was directed by the Delhi High Court in the case of Gammon – Atlanta VS. National Authority of India, to disclose at the time of filing petition under Section 11 or Section 34 of Arbitration and Conciliation Act, 1996 if there are any pending or adjudicated proceedings in respect of the same contract.

The arbitration clause plays a vital role in the contract and it should be drafted in a manner that all the issues of disputes should be covered together. Arbitration is a speedy proceeding but adjudication of different proceedings out of multiple sub agreements of one main contract delays the process and ADR and makes it lose its worth. In any petition seeking appointment of arbitrator or constitution of a tribunal to invoke proceedings, parties are under obligation to disclose if any other tribunal has been constituted.

Important points that need to be taken care of

Multiple arbitration proceedings are acceptable but parties cannot raise claims at their convenience.
The party invoking proceedings should disclose the material information that is concerning the same agreements before the courts. This will help in the administration of justice and also prevents contradictory awards.
A well-drafted clause can help the parties to go a long way without a multiplicity of agreements.

Conclusion

Arbitration being a part of ADR is a concept that was introduced not only to reduce the burden of the courts but to adjudicate the disputes in a speedy and cost-effective manner. Arbitration is a mutual agreement between the parties to resolve their disputes through this mode. But, nowadays, Arbitration has lost its primary function because of the multiple proceedings adjudicated by the several tribunals arising out of one single parent agreement. It is leading to contradictory findings and awards. Apart from this, due to multiple proceedings, it has become a time-consuming and a costly mode of resolving the disputes. Any issue arising out of the parent contract creates a huddle in the subcontracts as well which ultimately leads to multiple proceedings of arbitration under different arbitral tribunals. This issue is lowering the esteem of Arbitration. Parties bringing the dispute to Arbitration should bear in mind that they must disclose the pending proceedings to the court. Litigants can invoke multiple arbitration proceedings but not as per their convenience.

An arbitration clause should be drafted in a way that it can go a long way and should include all the matters in a single proceeding. Arbitration should remain an alternative to litigation and must stay true to its promise of being an efficient Alternate Dispute Resolution mechanism.

References

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Landmark judgments by the retiring Justice Ashok Bhushan

By

Sneha Mahawar

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September 5, 2021

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Ashok Bhushan — Image Source: https://rb.gy/wzcb8u

This article is written by Divyanshi Singh, a student from Symbiosis Law School, Noida. This article discusses the landmark judgments given by Justice Ashok Bhushan during his tenure.

Introduction

“The Judges are only known by their judgments…Judgments are the only true criteria for testing the mettle of a Judge. Judges delivering the greatest of decisions are justifiably remembered.” (Said by Justice Ashok Bhushan in one of his interviews)

Such is the aura of Justice Ashok Bhushan who retired on 4th July 2021 after serving in court for four decades as an advocate in the beginning and later as a judge.

In 1979, Justice Ashok Bhushan graduated from Allahabad University. He began his practice in civil law at the Allahabad High Court and later served as the Standing Counsel for the Allahabad High Court and the Uttar Pradesh State Mineral Development Corporation Limited. He was elected as the Allahabad High Court Bar Association‘s Senior Vice-President.

Justice Bhushan was appointed to the Allahabad High Court as a permanent judge in 2001. He was also Chairman of the Higher Judicial Service Committee. He was appointed as a Judge of the Kerala High Court on July 10, 2014, and soon he took the office of 31st Chief Justice of Kerala High Court on March 26, 2015.

On May 13, 2016, he was appointed as Supreme Court Judge, where his judgments stood testimony to his welfarist and humanist approach by deciding the landmark cases with humility.

Landmark Judgments by Justice Ashok Bhushan

Binoy Viswam v. Union of India (2017)

Facts

Section 139AA was inserted in the Income-Tax Act, 1961 by an amendment (vide Finance Act, 2017) that made it mandatory to link the Aadhar number to the PAN as well as the income-tax return by the 1st July 2017. Moreover, it was further stated in the section that failure to do the same would result in a declaration of PAN as void ab initio.

Issue

In this case, the validity of Section 139AA of the Income Tax Act was in question.

Held

The joint bench of Justice Bhushan and Justice Sikri had ordered a partial stay to the mandatory linking of the Aadhar Card with the PAN card. This order remained in effect until a nine-judge bench decided on the scope of the right to privacy under Article 21 of the Constitution of India in Justice K.S. Puttaswamy v. Union of India (2018).

Union of India v. M Selvakumar (2017)

Facts

A physically handicapped person had filed a petition to increase the number of attempts to write the Civil Services Examination from 7 to 10 as he also came under the ambit of reserved OBC category.

Issue

Whether the number of attempts to write the Civil Services Examination could be increased from 7 to 10 for the candidates who belong to two reserved categories, i.e. physically disabled and OBC?

Held

A Division Bench consisting of Justice Ranjan Gogoi and Justice Ashok Bhushan denied the petition. It was held that the physically disabled category was in itself a separate category and an individual falling in this category cannot demand further reservation. Justice Bhushan said that the term “physically disabled” is a distinct group in and of itself. He further said that people in this category had similar limitations, regardless of whether they belong to the General or OBC categories. As a result, they must be treated equally in terms of concessions. It was also held by the court that such reservation falls under the ambit of government policy and courts have no power to bring such reservation in motion.

Jiju Lukose v. State of Kerala (2015)

Facts

In this case, the petitioner had received a copy of the FIR after 2 months of filing. Until then the petitioner was unknown of the charges levied against him.

A PIL was filed by the petitioner in the court for seeking directions for the uploading of FIR on the police station’s website and for making copies of the same available to the accused as soon as the FIR is registered. Petitioner further contended that according to the Right to Information Act, 2005, police officers are obligated to lay down the recorded information in the public domain.

Issue

Can a copy of the FIR be given under RTI Act?

Held

The Kerala High Court’s Division Bench comprising of Justice A.M.Shaffique and Justice Ashok Bhushan ruled that the police officials must release a copy of the First Investigation Report (FIR) on an RTI application unless the competent authority deems that the FIR is covered by the provisions under Section 8(1) that can be exempted from being disclosed until the investigation is completed. Further, it was held that a copy of the FIR is given to the accused only when the proceedings are to be initiated on a police report by the competent judge.

M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors (2019) [Ram Mandir Verdict]

Fact

This is popularly known as the Ram Mandir case. As per the beliefs of the followers of Hinduism, an ancient Ram Temple was situated at the birthplace of Hindu Lord Rama in Ayodhya. However, the temple was demolished by general Mir Baqi on the orders of Mughal Emperor Babur and the Babri Masjid was built in the same place in 1528-29. Babri Masjid was demolished by the Hindu extremist mod in 1992 that was followed by unrest in the entire country. The dispute dates from 1528 when the Ram Temple was demolished.

Issue

Who does the disputed land belong to?

Held

This dispute came to an end on November 9, 2019, when the five-judge bench gave the final decision on the matter. The bench was led by the then CJI Ranjan Gogoi along with Justice Sharad A Bobde, Justice D.Y. Chandrachud, Justice Ashok Bhushan, and Justice Abdul Nazeer.

The bench ordered for the construction of Ram Temple on the disputed land and the whole of 67.703 acres of land was handed over to the trust named Shri Ram Janmabhoomi Tirtha Kshetra. The court further directed the Centre to allot a 5-acre tract to the Sunni Waqf Board for the construction of a mosque.

It is worth noting that Justice Bhushan joined the Ayodhya bench months after delivering a relatively crucial judgment on September 27, 2018, in which the three-member bench refused to refer the 1994 Ismail Faruqui verdict to the five-judge Constitution bench. The 1994 decision concluded that a mosque was not required to deliver prayers in Islam. When the bench took up the Ayodhya matter, Muslim groups demanded that the SC first submit the Ismail Faruqui ruling to the five-judge panel. In this case, Justice Abdul Nazeer issued a dissenting opinion that mosque is not an essential part of the practice of Islam.

In Re: Problems and Miseries of Migrant Labourers (2021)

Facts

This case was a suo moto case taken up by the Hon’ble Supreme Court of India in the view of problems faced by the migrant workers during the COVID-19 Pandemic.

Issue

During the lockdown, migrant workers were facing problems in earning their living and a lack of access to food. Another issue was the weak implementation of the national schemes.

Held

An extensive order was issued to the Central and State governments by the bench composed of Justice Ashok Bhushan and Justice MR Shah to ensure the welfare of the migrant workers and people working in unorganized sectors. The orders included the directions:

To host communal dinners in inconspicuous locations;
To re-assess the entitled beneficiaries;
To assure the implementation of One Nation One Ration Card;
To establish a national database for unorganised workers; etc.

Reepak Kansal v. Union of India and Others (2021)

Facts

A petition was filed in the Supreme Court of India seeking ex gratia monetary compensation of Rs. 4 lakhs to the families of people who died due to COVID-19 or its side effects.

Issue

Should ex gratia monetary compensation of Rs. 4 lakhs be provided to the families of people who fell prey to COVID-19?

Held

As part of the bench hearing this case, Justice Ashok Bhushan directed the Union government to formulate a uniform guideline on ex-gratia payments to the families of people who died due to COVID-19 within six weeks. He also accepted the fact that the Prime Minister-led National Disaster Management Authority (NDMA) had miserably failed to perform its statutory duty due to its inefficiency to follow the compensation scheme.

Jaishree Laxmanrao Patil v. The Chief Minister & Ors (2021)

Facts

This case is popularly known as the Maratha Quota Reservation case. The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 was passed in the state of Maharashtra to increase the already existing reservation for the Marathi community to 16% in education and public employability.

Though the Bombay High Court upheld the Act, it tried to reduce the percentage of reserved seats for Marathas to 12% in education and 13% in public employment, as per the recommendations of the Gaikwad Committee.

Issue

The validity of the Maratha Quota Reservation was in question.

Held

A five-judge bench of the Supreme Court led by Justice Ashok Bhushan issued the decision on the constitutionality of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018. The court unanimously dismissed the review petition on the grounds that no extraordinary cause had been made for breaching the ceiling limit of 50% in favor of the Marathas.

The bench of Justice LN Rao, Justice Hemant Gupta, and Justice S Ravindra Bhatt issued the majority opinion. However, Justice Ashok Bhushan (together with Justice Abdul S Nazeer) disagreed with the majority opinion regarding the function of states in identifying the underprivileged classes, pointing out that the 102nd Constitutional Amendment does not deprive the states of the authority to establish backward classes.

Ms. X v. State of Jharkhand (2021)

Facts

A petition was filed by a rape victim after being raped by Mohd Ali and 3 others while she was going to meet her child, who was under the custody of his father after their divorce.

Issue

What should be the benefits granted to the rape survivor?

Held

Justice Bhushan in the judgment stated that a rape survivor should be provided with housing facilities under Prime Minister Awas Yojna or any other Central or State Schemes, and the minor children of such women should be provided with free education in any government organization until the age of 14.

Shanti Bhushan v. Supreme Court of India (2018)

Facts

A writ petition was filed by Mr. Shanti Bhushan to question the powers of Chief justice of India as Master of the Roaster and suggested that the allocation of cases must be done either by a Collegium or by the full court.

Issue

Is it lawful for CJI as a Master of the Roaster to allocate the cases?

Held

In the Apex Court, the Bench comprising Justice A.K. Sikri and Justice Ashok Bhushan held that the “Chief Justice in his individual capacity is the Master of Roster and it cannot be read as the Collegium of the first three or five Judges. Thus, it is his prerogative to constitute the Benches and allocate the subjects which would be dealt with by the respective Benches.”

Small Scale Industrial Manufacturers Association (Regd.) v. Union of India and others (2020)

Facts

The case is popularly known as the ‘Loan Moratorium’ case. A writ petition was filed under Article 32 of the Indian Constitution seeking direction for a remedial measure to redress the financial strain that was faced by the industrial sector due to COVID-19. The petition stated that the COVID 19 Regulatory Package notified by RBI was inadequate and ineffective. Moreover, it did not offer any substantial relief to the industries.

Issue

Can courts order a remedial measure to redress the financial strain faced by the industrial sector?

Held

In the judgment on the loan moratorium of 23 March 2021, the Bench of Justice Ashok Bhushan, Judge R Subhash Reddy, and Justice MR Shah held that the topic of economic and fiscal regulation should be very carefully tackled since judges are not specialists. The decision concluded that during the duration of the loan moratorium the total exemption from interest cannot be provided and that the court cannot grant any sector-specific relief(s).

Conclusion

The judgments of Justice Ashok Bhushan will always be a testimony to his welfarist and humanist approach that he never failed. He believed that the relationship between the bar and the bench is like a relationship of the sea and clouds that always run parallel to each other but can’t exist without each other.

During his online farewell, Justice Ashok Bushan paid his homage and regards to members of the bar. Chief Justice of India (CJI) N.V. Ramana remarked that Justice Ashok Bhushan has always been a valuable colleague to work with and above all a “great human being.”

References

https://lawbeat.in/top-stories/revisiting-supreme-court-judge-ashok-bhushans-glorious-career

https://theprint.in/judiciary/justice-ashok-bhushans-verdicts-stand-testimony-to-his-welfarist-humanist-approach-cji/687438/?amp

https://www.scobserver.in/judges?id=ashok-bhushan

https://www.scobserver.in/beyond-the-court/j-bhushan-s-11-key-judgments-on-reservation-privacy-religious-rights

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Global giant Amazon lock horns with Indian giant Reliance and Future Group

By

Diganth Raj Sehgal

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September 5, 2021

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Reliance-future-group-img — Image Source: https://bit.ly/3n3cHfN

This article is written by Prince Awana.

Table of Contents

Introduction

It wouldn’t be wrong to say that the US e-commerce giant Amazon has over time drawn heavy criticism from multiple sources and companies regarding its business practices and policies that question the ethics of the company. Numerous reports have accused Amazon of anti-competitive, anti-trust and monopolistic practices. The company has also been criticized for its bruising workplace, treatment of its employees, workers and consumers.

India turned into a new global battleground for the online retail market in 2018 with Walmart’s acquisition of Flipkart. This led to a more intense battle between Amazon and Flipkart for leadership in the Indian market. And for India’s biggest brick-and-mortar retailer, Reliance Retail the market worth more than $450 billion is too lucrative an opportunity to ignore. Also, with the Indian retail market projected to reach $1.3 trillion by 2025, up from $700 billion last year, the battle of dominating India’s estimated $1.3 Trillion retail markets has turned ferocious. From multinational corporations (MNCs), well-funded startups to large reputed business houses and small neighbourhood shops, everyone is scrambling to make their way onto the weekly purchase lists of 1.4 billion consumers.

This time Amazon’s battle is with none other than the Indian giant Reliance group. The legal battle has brought two of the world’s richest men at odds over the assets of the Future group. In a bitter dispute over Mukesh Ambani’s $3.4 billion purchase of Future Group’s assets, Amazon is locked in a stalemate with Mumbai-based Future Group.

But will it be fair to say that with this legal battle Amazon is attempting to scuttle India’s largest retail sector deal? Apparently, Amazon has hinted that India’s willingness to enforce business contracts is at the heart of this disagreement. Since in the event Future Group’s reneging on its contract is permitted, it would mean that business contracts are not sacrosanct and it would have a bad impact on foreign investors’ minds that on-the-ground investments in India are precarious and of high risk. It will portray an unpalatable image to India as it looks to entice foreign investments.

Over the span of the last few months, the spat has become nothing but more intense and fiercer with neither side backing off in the courtrooms of the national capital. Due to this tussle between the two giants, foreign investors are having difficulty keeping up with the swaying court rulings. The ruling of this case may set an important legal precedent, particularly for foreign investors concerning the validity of emergency decisions by foreign arbitrators in India. Recently, after a major setback, Future Group moved to the Supreme Court on August 12, to obtain a stay against the Single Bench order of the Delhi High Court. It looks like a fresh round of litigation might be in the offing for the Amazon-Reliance-Future Group dispute. Earlier this month, the Supreme Court through its judgment dated 6th August, 2021 ruled in favour of Amazon, putting India’s biggest retail deal in jeopardy.

Background

Global giant, Amazon notified the Competition Commission of India (CCI) in September, 2019 of its intention to acquire a 49% stake in Future Coupons, a subsidiary of Future Retail Ltd., India’s second-largest retail chain. Following the approval from CCI three transactions took place between “Amazon” (Amazon.com NV Investment Holdings) and the “Biyani Group” or the “Future Group” (including Future Retail Ltd, FRL and Future Coupons Pvt. Ltd., FCPL) which triggered three agreements. It resulted in Amazon acquiring a 3.58% stake in FRL and 49% shares of FCPL by investing a sum of Rs. 1431 Crores.

The Shareholders’ Agreement (SHA) dated 12th August, 2019 provided FCPL with negative, protective, special, and material rights with respect to FRL, including, in particular, FRL’s retail stores [“retail assets”]. FCPL was granted certain rights for the benefit of Amazon, which were mirrored in the SHA dated 22nd August, 2019 entered into between Amazon and the Biyani Group.

In short, apart from the transactional part, Amazon also acquired a certain amount of leverage through the ‘call option’ provided as part of the deal. As part of the ‘call option,’ Amazon was granted the right to acquire all or part of the shares of the promoting company Future Retail. Based on the rights granted to FCPL under the FRL’s and FCPL’s SHA, Amazon agreed to invest in FCPL which was recorded in the Share Subscription Agreement dated 22nd August, 2019 and in addition, this investment in FCPL was expressly stipulated to “flow down” to FRL.

The basic understanding between the parties appears to be that the FRL was prohibited from encumbering, transferring, selling, distributing, or disposing of its retail assets to the prohibited entities with whom FRL, FCPL, and the Biyani group were not permitted to deal. These restricted persons were then listed in Schedule III of the FCPL SHA, as well as within the FRL SHA dated December 19, 2019. It mentioned a list of 30 entities with whom the Future Group could not transact, including Reliance Retail, a subsidiary of Reliance Industries Limited and therefore it is beyond question that the Mukesh Dhirubhai Ambani group (Reliance Industries Group) is a “restricted person” under both these Shareholders’ Agreements.

Merger that led to the infamous feud

Regardless of the Amazon-Biyani Group contract, several months after Amazon invested, Biyani Group entered into a transaction with Reliance Retail that entailed the merger of FRL with the Reliance retail, leading to FRL’s cessation as an entity as well as the complete disposition of its retail assets along with its wholesale, logistics and warehousing business to the said group.

Following which Amazon issued a legal notice but the Biyani group did not respond to the said legal notice. Thereafter, Amazon initiated the arbitration proceedings and filed an application on 5th of October 2020 seeking an emergency interim relief under the SIAC Rules, seeking injunctions against the aforesaid transaction and the “EA” (Emergency Arbitrator) heard the detailed oral submissions and then passed an “interim award” concerning the Disputed Transaction, respondent was prohibited from taking any measures that would further or aid the Board Resolution by the members of FRL.

And later the Appellant, Amazon instituted proceedings before the High Court of Delhi under Section 17(2) of the Arbitration Act to enforce their award/order passed by EA.

Having described the award as a nullity and the Emergency Arbitrator a Coram non-judice, the Biyani Group went ahead with the impugned transaction. Rather than contesting the award under Section 37 of the Arbitration Act, a civil suit was filed by the FRL before the Delhi High Court seeking an injunction against the Emergency Arbitrator’s award which was disposed of, declining the grant of interim injunction as prayed by FRL.

A Special Leave Petition (SLP) was filed before the Supreme Court in which the Supreme Court by its order dated 19th April, 2021 stayed further proceedings before the learned Single Judge and the Delhi High Court Division Bench and set the matter before this Court for its final disposition.

On the 6th of August, 2021 in a landmark ruling the Supreme Court upheld Singapore’s EA Award, halting the Rs. 24,731 crore merger of FRL and Reliance Retail.

Issues

In the above-mentioned appeal, two critical issues were raised:

Whether under Section 17(1) of the Arbitration and Conciliation Act, 1996 (Arbitration Act), “award” of the Singapore International Arbitration Centre (SIAC Rules) can be said to be an order?
Whether a learned Single Judge of the High Court has appellate jurisdiction over an order passed under Section 17(2) of the Arbitration Act enforcing the award of an Emergency Arbitrator?

Judgment of the Supreme Court

The Supreme Court held that an emergency award passed by a Singapore arbitrator halting the FRL-Reliance contract could be enforced under Indian law. An emergency arbitrator’s award in an emergency settlement remains valid under Section 17(1) of the Arbitration and Conciliation Act, and an award entered by a single judge under Section 37(2) cannot be appealed.

Major takeaways from the judgment

As per the above-mentioned decision of the Supreme Court of India, it has not only approved the enforcement of the Singapore Emergency Arbitrator Award (EA) but the Supreme Court also affirmed that the judgment of a single judge of the Delhi High Court who had announced the Emergency Award valid. Furthermore, Supreme Court held that it cannot be appealed to a division bench of the High Court under Section 37(2) of the Arbitration Act. The highest appellate court stated that Section 37 of the arbitration act comprises the entire code governing appeals from an award or order made under that act.

This landmark judgment throws light on various issues and clarifies a lot of points including but not limited to the following observations:

According to the Arbitration Act, parties can be autonomous and have disputes decided according to institutional rules, including EA delivering interim orders, which are called “awards.” Obtaining such interlocutory orders is an important step in decongesting the courts while providing expedited temporary relief to the parties. Such orders fall under Section 17(1) of the Arbitration Act and are governed by it.
A provision defining emergency arbitrators in an agreement is not prohibited by the Arbitration Act. Furthermore, as various Sections of the Act speak of party autonomy in choosing institutional rules, the implied rules would state the position that they would govern the rights between parties, a position which is not precluded by the Arbitration Act but is explicitly endorsed by it. (17th Paragraph of the judgment)
Section 17(1) definition also applies to interim orders passed by EA under the rules of a permanent arbitral institution as there is no specific definition of what constitutes an “arbitral proceeding” and therefore includes proceedings before an Emergency Arbitration. Accordingly, an arbitral tribunal as defined under Section 2(1)(d) is not applicable, and the arbitration tribunal spoken of in Section 9(3) is the same as that spoken of in Section 17(1), which includes an Emergency Arbitrator appointed under the institutional procedure.
An order made in contempt of court cannot be enforced the same way as Order XXXIX. In cases of contempt of court, the offender is usually punished by means of a monetary fine or jail sentence. By contrast, Order XXXIX, Rule-2A is aimed at enforcing the Order XXXIX, Rules 1&2, and for that purpose, the civil courts have been given exorbitant powers, such as the power to attach property, as well as pass sanctions such as imprisonment which have punitive aspects.
Just because a recommendation of a Law Commission Report is not followed by Parliament does not mean that the recommendation cannot be included in the statute as properly interpreted. When the time comes to enforce a permanent injunction, Order XXI, Rule 32 states that the detention and attachment must take place within a civil prison. Also, it can be said that Order XXI, Rule 32, governs the enforcement of injunctions in a manner similar to XXXIX, Rule 2A. It also illustrates the primary purpose of Order XXXIX, Rule 2A, which is to enforce interim orders.
By introducing Sections 9(2) and 9(3) it was evident that the intention was to avoid courts being swamped with Section 9 petitions during the process of establishing an arbitral tribunal for two good reasons i.e., to decongest the clogged court system and to establish an arbitral tribunal that could grant interim relief quickly and effectively once constituted.

Conclusion

In all likelihood, it is the above-mentioned conclusions and references outlined from the judgment in the Amazon vs Future Retail case that makes it one of the biggest landmark judgments not only in the field of Arbitration Law but also in the domain of Competition Law particularly when we take into account how the decision of Supreme Court stalled Rs. 24,731 crore merger of FRL-Reliance group by holding the EA’s award valid. Due to the retirement of Justice Nariman, the fresh SLP that has been filed by the Future Group on the 12th of August will be heard by a different bench. With the filing of SLP, there are a lot of things that are yet to be unravelled in the coming times and it will be interesting to see how the case unfolds. The foreign investors eyeing warily need to put up with lots of patience. However, it seems almost certain that the final judgment will set a precedent that many investors, multinational corporations, and legal professionals have been anticipating.

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A checklist of mistakes made by sellers in M&A agreements

By

Abanti Bose

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September 5, 2021

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This article is written by Hanumant Rambihari Chauhan, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Table of Contents

Introduction

Since the very beginning of the 21st century, over 800,000 transactions have taken place worldwide with a known value of over 57 trillion USD. Since 2018, the quantity of deals in M&A has declined by 8 per cent to 49,000 transactions, while their worth has increased by 4 per cent to 3.8 trillion USD. The reason behind this can be attributed to mergers and acquisitions with other business entities in order to gain augmentation in a province or market, increased access to the customer base, obliterating a competitor or an anchorage economy of scale. While entering into agreements of merger and acquisition, sellers inevitably are going to make mistakes. Through this article, the author seeks to highlight the common mistakes made by sellers in M&A.

Mentioned in the ensuing paragraphs are the common mistakes that sellers end up committing while making M&A deals.

Not having an appropriate NDA

The M&A process requires extensive disclosure, so a well-drafted non-disclosure agreement (NDA) is crucial to protect the seller’s proprietary company information and a ‘well-drafted’ NDA means that it includes specific M&A-related protections for the seller.

It is of importance to include clauses needed around potential buyers not being able to contact the seller’s customers, suppliers and employees. Incredibly good NDAs, as essential as they are, are often not thought about much in a rush to sell. A well-developed offer contains several barriers for the buyer. In particular, a restriction in the form of a ban on poaching or hiring the seller’s employees for a certain time period, non-disclosure of essential data, amongst others.

Not having an entire online data room

An “online data room” is a warehouse of key documents about a company. Online data rooms are used in merger and acquisition transactions, to facilitate the extensive due diligence process typically undertaken by buyers.

This data room is crammed with the company’s important documents: contracts, intellectual property information, employee information, financial statements, capitalization tables, and much more, basically anything that the buyer might need to access. It allows the selling company to furnish valuable information in a systematic manner, which aids in preserving confidentiality and promotes efficiency. Such data rooms avoid the use of a physical data room where documents are kept and helps quicken M&A procedures. Thus, the preparation of an online data room is extremely important for an M&A transaction.

Even though creating an online data room is very time consuming as one has to put all the information and financials in it, it is of utmost importance to set up early on in M&A transactions. It is one of the key factors behind M&A success.

Not negotiating the terms of the financial advisor or factor engagement letter

Companies usually take on financial advisors or investment bankers for capital fund-raising and M&A activities, and these investment bankers or financial advisors are valuable partners for companies.

An investment banker or financial advisor strives to start the negotiation with their purported ‘standard form’ letter, this letter is mostly one-sided in favour of the investment banker or financial advisor. It is valuable to see a particular description of the services to be furnished in the engagement letter. The companies that just sign this engagement letter or hardly negotiate such a letter are making a huge mistake. This letter is negotiable and legal counsel/deal professionals negotiate it.

Negotiate the percentage payable as compensation to the advisor generally as “success fees” based on the ultimate sale price percentage. (The amount of the fees will ordinarily range from 1% to 3% of the net consideration received from the sale.)
Many engagement letters will have a tail obligation by the company. Under what situation and how long a ‘tail’ applies, companies try to limit this tail between 6 to 9 months and only for potential buyers who have signed an NDA with the company while signing the engagement letter.
Representation and warranty regarding any quarrel of interest by the investment banker or financial advisor.

Having incomplete books, records and contracts

Usually, companies have incomplete files with contracts, minutes, stock option information, corporate records, etc. Acquirer insists on checking all the record books and contracts of selling the company for due diligence purposes. The acquirer spends a great deal of time and due diligence on the company’s projections. So, those projections must be equitable and sensible with realistic assumptions. Preferably, an updated online data room should be kept by the company in advance. Preparation of such records at the eleventh hour is difficult and tedious and can lead to mistakes, and therefore, it should be started at the earliest in the process as it can lead to delays in the transaction of M&A.

Not having a whole disclosure schedule

As a prevailing party of any M&A transaction, the seller should prepare an all-inclusive disclosure schedule that labels many of the key diligences and recognizes any exceptions to the seller’s representations and warranties in the acquisition agreement. This disclosure schedule must be carefully prepared as it is immensely important and time-consuming for the seller. The seller’s management team needs to be sharply involved in the drafting of the disclosure schedule. The buyers and their legal and financial advisors negotiate the wording of the disclosure agreement. Also, the seller has no right to update the disclosure schedule after signing and before closing.

Not negotiating the key terms of the deal in a letter of intent

One of the significant mistakes made by the seller is not negotiating the terms of the letter of intent. There should be a clear consensus on the principal terms and conditions in the letter of intent (LOI). Considering that the LOI is not signed, the seller can expedite the bargain and dictate his terms. Once it is signed, the ball is in the investor’s court where he can demand oneness; restricting the buyer from negotiating with other investors for a certain time period. The LOI should include the price and payment method and the apparatus for price correction; also, the scope and duration are of utmost importance alongside the remedies for breach of the agreement, etc.

A bewildering letter of intent (LOI) notably speeds up the duration of the transaction and increases the likelihood of its successful completion.

Not having a decent legal advisor for M&A transaction

As preparations commence in anticipation of a sale, it is critical to bring in the right professionals to help facilitate the deal. Trying to navigate the intricacies of this kind of sale without the requisite skills, knowledge, and expertise on board might affect the sale adversely and therefore, it is vital to hire experts wisely. It is essential for the selling of the company to hire an advisor who specializes in M&A transactions for the success of the M&A process. It is vitally important to have an experienced M&A negotiator leading the negotiation to avoid acrimonious negotiation, as this could kill the deal.

The legal team is obliged to have experts in the relevant areas, such as fiscal, real estate, intellectual property, jurisdiction, administrative etc. Also, an M&A lawyer must be amicable with the company’s business and with the operations of an M&A deal. The legal advisor helps the seller’s team to upload the information of company’s business information to the data room “also, assists” in price negotiation and other terms of the transaction.

Dispute resolution provisions in M&A deals

The M&A agreement must set out how and where dispute resolution will take place. Although most of the acquisition agreements backtrack to the court system, numerous sellers and buyers, especially those who have been through dispute processes, usually prefer to resort to an absolute confidential binding arbitration provision. which allows for quicker and more cost-effective resolution compared to litigation. Litigation lasts for many years throughout the appeal process and is extremely costly, and it is, therefore, preferable to find an alternate dispute resolution mechanism like arbitration, for example.

Amidst the issues to be considered for arbitration, the following things have to be decided prior to finalisation of the deal:

Number of arbitrators.
Location of arbitration.
The time period for issuance of a decision.
How parties will hold up the fees and arbitration expenses.

Conditions to the closing of the M&A deal

If a delay occurs between signing and closing, the acquisition agreement will need to chart the conditions for closing, both concerning the buyer and the seller. Some of these conditions are akin, but most of them are incomparable to one party or the other.

The common closing conditions that run in favour of the buyer are

Accuracy in the material respects of the seller’s representations and warranties in the agreement.
The obedience by the seller with the seller’s covenants in the acquisition agreement.
To get the approval of all the necessary government consent.

Representations and warranties regarding contracts in M&A deals

The representations and warranties clause of the acquisition includes a key section concerning the seller’s contracts, and especially, the subject matter of the contracts with the sellers as mentioned in the agreement. Before signing the acquisition agreement, the contract will be made available to the buyer and their counsel in the “online data room”. This section generally requires a listing of all the material contracts of the seller which are:

Completion bond,
Joint venture and partnership agreement,
Intellectual property related-agreement,
NDA or confidentiality agreement,
Guarantees of third-party agreement,
Other material agreements.

Failure to list the essential contracts in the schedule could allow the buyer to walk away from the deal before closing which would lead to possible post-closing liability for the seller’s stakeholders.

Current samples of where M&A transactions failed

It’s gripping how many unfavourable M&A transactions fail all the time for various reasons. Let us focus on a couple of examples to gain an insight into the same.

1. HDFC and Max Life

Shareholding patterns

Max life Limited being India’s Fourth largest private insurance underwriter, a Venture between Max Financial Services and Mitsui Sumitomo Insurance Company (26%), a Japanese Insurance Company.

HDFC Standard Life Insurance within the past unlisted company and a joint venture between (HDFC) Housing Development Financial Corporation Limited holding 61.5% shares and Standard Life Aberdeen PLC, holding 35% merger of Standard Life and Aberdeen Asset Management rest by others.

Merger structure and advantage

HDFC was a Private Company and ought to get listed. The merger would list it automatically without going through the route of unwieldy Initial Public Offering. The merger was not the only advantage with regards to avoiding the intricacies of an IPO but would cut down the cost significantly. It was a reverse merger as a listed company was to be merged with non-listed, (HDFC Standard Life was going to merge in Max life Limited).

As per the plan, Max Life Limited would first merge with its parent company Max Financial Services, and later, the life insurance business would de-merge from Max Financial and get merged into HDFC Life. The majority stake in the combined entity was to be held by HDFC Life.

Reason for failure

The proposed merger was not approved by the sectoral authorities, Insurance Regulatory and Development Board (IRDB). Section 35 of the Insurance Act bars the merger of the insurance company with non-insurance companies.

2. eBay and Skype (2005)

Another such example of failure in M&A transactions was eBay’s acquisition of Skype. The concept was that this merger would allow communication between buyers and sellers on eBay, bring about gentle transaction flow and generate more revenue.

But eBay didn’t bargain with the people who didn’t want to talk to a stranger about the transaction if they could just email them. Soon, eBay came to know that there was no real need for the acquisition and ended up selling 2/3rd of Skype for the US $1.9 billion four years later.

Conclusion

The procedure of selling a company or acquisition requires much more than assent on a price. There are numerous aspects to negotiating different clauses in the acquisition agreement. Advice is not to let things take their own course and endow the sales process with the adeptness to account the supposition and make transactions well organized and tight.

An M&A transaction ordinarily requires counsel, advisors, and accountants of the buyer and seller to take on a notable amount of due diligence. The seller, by being duly prepared for due diligence activities, can ensure that the procedure goes smoothly and swiftly, helping the best interests of all parties to the transaction.

Reference

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