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Sonali Hatua Giri v. Union of India & Ors. : Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions violating Article 14

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This article is written by Arya Mittal from Hidayatullah National Law University. The article deals with the recent case of Sonali Hatua Giri v. Union of India & Ors. wherein the petitioner was denied pension since she was divorced. 

Introduction

The preamble states that equality of status and opportunity be given to all. Further, Article 14 of the Indian Constitution deals with equality before law. It states that no person shall be denied equality before the law or equal protection of laws.

The provision has been debated ever since the Indian Constitution has been enforced. Different concepts such as reasonable classification, non-arbitrariness, etc. have evolved with time due to the active role of the judiciary. But such concepts have also given rise to conflicts. One such conflict arose in the case of Sonali Hatua Giri v. Union of India & Ors. (2021) which is the scope of the present article. 

Facts of the case

The case relates to the daughter of a deceased freedom fighter. The freedom fighter was entitled to a pension under the Swatantrata Sainik Samman Scheme which was provided to him till his death on December 04, 2012. Thereafter, the petitioner’s mother (wife of deceased freedom fighter) applied for the pension, and the application was kept waiting for a long time till she finally died on February 18, 2019. The petitioner got a decree for divorce on March 19, 1999, after which she and her son had been living with her parents and had no independent income.

Moreover, she had foregone alimony and maintenance at the time of divorce and was dependent on her father. After the death of the mother, the petitioner also made a request for the grant of pension in her favor, however, the same was still pending. Meanwhile, the petitioner has filed a writ petition (the current case) in the Calcutta High Court to challenge the constitutionality of Clause 5.2.5 of Guidelines for Disbursement of Central Samman Pensions (hereinafter referred to as “Guidelines”) which excludes widowed/divorced daughters from the purview of unmarried daughters and make them ineligible for claiming the pension. 

Issues raised

Whether Clause 5.2.5 of Guidelines for Disbursement of Central Samman Pensions is ultra vires of the Indian Constitution since it violates Article 14 of the Constitution?

Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions

Clause 5.2.5 of the Guidelines states that widowed/divorced daughters are ineligible for claiming the pension. This has to be read with Clause 5.2.3 of the Guidelines which states that the spouse or daughter should satisfy twin conditions of being unmarried and having no independent source of income. 

Contentions of Parties

Petitioner

  • The petitioner contended that though the Guidelines included unmarried daughters as beneficiaries of pension but excluded widowed/divorced daughters which is without any reasonable basis and is therefore violative of Article 14 and Article 39 of the Indian Constitution. 
  • Petitioner relied on an order passed by the Punjab and Haryana High Court in the case of Khajani Devi v. Union of India and others (2016) wherein the Court held that pension could be availed by divorced daughter. This was reaffirmed by a two-Judge Bench of the Supreme Court considering it to be a reformative step. 
  • It also contended that Himachal Pradesh High Court failed to consider the order passed in Khajani Devi when respondents posed a contrary view. 

Respondent

  • The respondent contended that courts must presume the constitutionality of a law and must presume that the legislature understands the needs of people and forms any law for the benefit of the common people. 
  • While contending on reasonable classification, the respondents contended that the Guidelines sought an intelligible differentia between unmarried daughters and widowed/divorced daughters. 
  • As regards the widowed daughters, the respondents went on to explain how the personal laws of different religions have provisioned some rights for the widow. As per Section 8 of the Hindu Succession Act, 1956, a Hindu/Jain/Sikh/Buddhist widow can inherit property from her husband or father-in-law. In case she is unable to maintain herself, after the death of her husband, she can even seek maintenance from her father-in-law under Sections 19 of the Hindu Adoption and Maintenance Act, 1956. Muslim women are entitled to dower. All the widows apart from the above-mentioned religions are entitled to get the property of the husband as per Section 32 of the Indian Succession Act, 1925.
  • As regards the divorced daughters, Hindu/Jain/Sikh/Buddhist women are entitled to permanent alimony from their husbands in case of divorce as per Section 25 of the Hindu Marriage Act, 1955. A divorced  Muslim woman can claim maintenance even after iddat according to Section 3(1)(a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Parsi and Christian women are also entitled to permanent alimony and maintenance under Section 40 of the Parsi Marriage and Divorce Act, 1936 and Section 37 of the Indian Divorce Act, 1869 respectively.
  • They further contended that from the two above-mentioned conditions, it is clear that there exists a difference between unmarried daughters and widowed and divorced daughters. The latter are entitled to certain income from various beneficial legislations in the country while the former has not been provided with any such right. Thus, there exists an intelligible differentia in the scheme for not providing pension to divorced/widowed daughters.
  • The respondents relied on the Tulsi Devi v. Union of India and another (2019) wherein the Himachal Pradesh High Court posed a contrary view. However, the case is currently pending to be adjudged by a three-Judge Bench of the Supreme Court.

Observations of the Court

  • The Court did not rely on the order of Tulsi Devi, since it was still pending adjudication by the Supreme Court. It relied on the order passed by Punjab and Haryana High Court in Khajni Devi which was reaffirmed by the Supreme Court holding it to be a progressive step.
  • Reiterating the ruling of Punjab and Haryana High Court, the Calcutta High Court held that it would be a travesty if a widowed/divorced daughter is excluded from the scheme since there is no intelligible differentia. 
  • Petitioner, being the sole eligible dependent, having no other source of income, should be entitled to claim pension and be kept at an equal pedestal as that of unmarried daughters. 
  • It further held that the scheme had been launched as a mark of respect for the freedom fighters and a strict interpretation of such a beneficial scheme would disqualify the beneficiaries, negating the whole objective of the scheme. 
  • Excluding a widowed/divorced daughter from the scheme would be violative of Article 14 and Article 39 of the Constitution of India. 
  • Even in Hindu laws on which the respondents have relied, there is no differentiation between an unmarried daughter and a widowed/divorced daughter. 
  • Though different personal laws provide legal remedies by way of maintenance and alimony, it is not unknown that such remedies take an unusually long time and in between, it is not possible for a dependent daughter to sustain her livelihood.
  • The scheme already makes it a condition that the beneficiary should not have any independent source of income which ensures that the scheme is not abused by a person who is already financially independent. Thus, making such a classification was not required since widowed/divorced daughters are also unmarried and have the same marital status.
  • The blanket exclusion of widowed/divorced daughters is highly unjust and without any reasonable classification and therefore, the Guidelines have been held ultra vires of Article 14 of the Indian Constitution. Hence, unmarried daughters as stated in Clause 5.2.3 of the Guidelines shall also include widowed/divorced daughters.

Landmark Supreme Court Judgments on Reasonable Classification

State of West Bengal. v. Anwar Ali Sarkar (1952) 

Anwar Ali Sarkar is a celebrated judgment of the Supreme Court of India which laid down the test for making reasonable classification in accordance with Article 14. It stated that the classification must not be arbitrary but must be rational. It stated that qualities or characteristics of people in one group must not be present in the other, which keeps them in a separate group. It stated that two conditions need to be fulfilled for classification to be held reasonable. These are:

  • Firstly, the classification must be sought on intelligible differentia which differentiates one group from the another.
  • Secondly, the differentiation must have a rational nexus with the object sought to be achieved by the Act.

In absence of any of the conditions, such classification would be held to be arbitrary and thus, it would be violative of Article 14 of the Indian Constitution. A similar approach was taken by the Supreme Court even in the case of Ram Krishna Dalmia v. S.R. Tendolkar (1958).

Ramchand Jagdish Chand v. Union of India (1963)

In this case, the Supreme Court held that there is always a presumption in favor of the constitutionality of a law. Any person who believes that they have been subjected to unequal treatment needs to prove that they have been similarly situated with people from whom they are differentiated without any reasonable basis and such differentiation is unjust. 

Applying it to the current case reveals that the petitioner had been similarly situated since she did not have any independent source of income and was the daughter of the freedom fighter. However, the latter part dealing with widowed/divorced daughters created an unreasonable classification which has been pleaded by the petitioner.

Subramanian Swamy v. CBI (2014)

The question of justiciability of classification was once again raised in Subramaniam Swamy. The Court held that if the object of the legislation is itself discriminatory, then it is immaterial whether the classification has a reasonable nexus with the object.

Moreover, each case of equality needs to be separately examined and not by applying a general rule. To elaborate, the basis of classification may be based on geographical features, age, professional qualifications, etc. but it should be reasonable and not discriminatory otherwise it will be violative of Article 14. 

Conclusion 

The step taken by Hon’ble Justice Sabyasachi Bhattacharyya, in the case of Sonali Hatua Giri v. Union of India & Ors., is a progressive step for the Indian society where a widow or divorced woman is still portrayed negatively in many parts of the country.

The Guidelines were violative of Article 14 as it did not have intelligible differentia while excluding widowed and divorced daughters from the purview of unmarried daughters in order to claim the pension.

Any law which does not make a reasonable classification should be struck off for being unconstitutional, which seeks to promote equality among all. Lastly, the role of the Indian judiciary is applaudable in safeguarding the rights of people by declaring the correct proposition of law. 

References

 

 


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Data Processing Agreement under GDPR

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This article is written by  Arun Nair who is pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.

Introduction

The entry of the European Union’s – General Data Protection Regulation (GDPR) forced every company or person who processes the personal data of the citizens of the EU to comply with it.  One key element of the regulation is the requirement for data controllers to enter into an agreement (DPA) with the data processors for the protection of the rights of the individual whose personal data is processed in line with the requirement of the legislation. This article tries to explain the purpose of a DPA, when it is needed, and what are the essential clauses to be included in it.

General Data Protection Regulation (2016)

The General Data Protection Regulation (GDPR) lays down rules relating to the protection of citizens of the European Economic Area with regards to the processing of their personal data by companies for commercial activities. It aims at protecting the fundamental rights and freedom of a person by protecting their personal data. It is regarded as the benchmark law for the protection of privacy which was adopted in the year 2016 and fully implementable by 2018 and now recognised as law across the European Union.

Personal Data

Article 4(1) of the General Data Protection Regulation defines “personal data as any information relating to an identified or identifiable natural person, one who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that person.” (EU n.d.)

In other words, it is any data that can lead to the identification of a specific person. It can be as obviously identifiable data as name and surname, but it can also be a combination of data such as age, job, company, location, ID number etc. as when combined can allow for identification of a person. (GDPR 4 n.d.). 

Additionally,  there are certain personal data that reveals an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health, criminal offences, data about sex life or sexual orientation, which fall under special categories of personal data.

Examples of data that are not considered as personal data are; a company registration number, company contact email address etc.

Data Controller

As per Article 4(7) of GDPR, controllers are “any natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes, and means of the processing of personal data.”

Processing of personal data means “any operations or set of operations on personal data or set of personal data, whether or not by automated means. These operations may include collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of personal data.” 

For example; data mining is another provision of the GDPR that will have a significant impact on businesses. It requires data controllers to notify individuals when automated decision making is used.

Data Processor

Article 4(8) of GDPR defines a processor as “any natural person or legal person, public authority, agency or other body which processes personal data on behalf of the controller.”

  1. Further, Art.(28)(1) states that, if a ‘data controller’ engages a ‘data processor’ for processing personal data, the controller shall ensure that the processor enact appropriate technical and organizational measures in such a manner that it meets the requirements of the legislation and safeguards the rights of data subjects.
  2. No processor can engage the services of another processor without the specific written approval of the data controller and such processor shall state to the controller, all intended changes that may occur with the inclusion or substitution of other processors.
  3. Data Processing Agreements are binding on the Data Processors and sets out the subject matter, duration, purpose and nature, type of data and rights and obligation of the data controllers under the contract.
  4. The contract or other legal act further stipulates in particular that the processor:
  5. Shall process data only on instruction of the controller including transfers to third country or an international organization;
  6. Shall ensure confidentiality of the personal data;
  7. Shall ensure safety and security of the personal data;
  8. Shall agree to conditions for engaging another processor;
  9. Shall assist in audits conducted by the controller and also in ensuring compliance to controller’s obligation to respond to data subjects who exercise their rights provided under the GDPR;
  10. Shall at the instruction of controller, delete, return all the personal data once services are over;

In addition:

  • “If ‘other’ processor’s who have been engaged by the ‘initial’ processor to fulfil specific processing activities under a contract or legal act, fails to attain its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that ‘other’ processors obligations.”
  • “If a processor infringes the regulation by determining the ‘purpose’ and ‘means’ of processing the personal data then the processor shall be treated as a controller in respect of that processing and dealt with accordingly.”

Data Processing Agreement

A data processing agreement or a DPA is a binding legal contract between the data controllers and data processors, laying down the scope, purpose, and relationship between both these parties.

A DPA is mandatorily signed whenever a data controller outsources processing activities to a third-party, and in line with the outsourcing, decides to transfer personal data to the third-party. These are also signed between the processors and their sub-processors

DPA’s dictates and regulates the specifics of data processing arrangements between the controllers and the processors. It can be either in writing or in electronic form.

What constitutes a DPA?

The DPA which becomes the part of the principal agreement between the companies and the customers includes ‘model clauses’ which are approved by the European Union Data Protection Authorities known as the Article 29 Working Party. This is the independent European advisory body that deals with issues relating to personal data and privacy protection.

With DPA terms included in the online service terms, there are no extra agreements required between the customers and partners of the controller to be GDPR requirement compliant for data processing.

Some of the important clauses to be considered in a Data Processing Agreement are as follows:

Processing of Personal Data

The clause states that processors should comply with all applicable Data Protection Laws in the Processing of the Controllers Personal Data and not Process Company Personal Data other than the ones instructed by the Controller. The clause could be drafted as such:

“The Parties agree that the Processor shall process personal data only in accordance with the written instructions of the Controller. Additional instructions outside the scope of the written instructions required written agreement between the Parties. Controller is entitled to terminate the Agreement if Processor declines to follow the instructions requested by the Controller under this DPA.”

Confidentiality

Parties must keep the agreement and the information received, in connection with this agreement, confidential, and must not disclose that information without the prior written consent of the other Party except when such disclosure is required by law and if the information is already in the public domain. 

All such individuals shall be subject to confidentiality undertakings. Processor shall take reasonable steps to ensure the reliability of all employees, trainees, contractors of the Processor who may have access to the controller’s personal data and ensure that access is strictly limited for the purposes of the Principal Agreement, and to comply with Applicable Laws.

“The Processor will not access or use, or disclose to any third party any personal data, except, as necessary to comply with the law or a valid binding order of the governmental body. If the governmental body sends the Processor a demand for personal data, the Processor shall attempt to redirect the governmental body to request data directly from the Controller. To achieve this the Processor may provide the Controllers basic contact information to the governmental body. Further, the Processor restrict its personnel from processing personal data without prior approval from the Controller and imposes contractual obligation upon its personnel regarding confidentiality, data protection and data security.”

Data Security

Considering the cost of implementation and the nature, scope, purposes, and risk associated with processing the personal data, processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. A security clause can be drafted as such.

“The processor shall implement and will maintain adequate technical and organizational measures in compliance with the provisions of the GDPR in relation to the personal data. Such technical and organizational measures include pseudonymisation, encryption, backup and archiving for restoration, and regular testing, assessing and evaluation of the effectiveness of the technical and organizational measures implemented by the Processor by the Controller. The processor shall notify the controller of a security incident without any undue delay after becoming aware of the security incident and take reasonable steps to mitigate the effects and minimise any damage.”

Sub-Processors

Processor shall not appoint (or disclose any Personal Data to) any Sub-processor without the authorization of the Data Controller.

“The controller agrees that the processor may use sub-processors to fulfil its contractual obligations under this DPA or to provide certain support services on its behalf. The processor shall inform and give notice to the controller at least 30 days before the processor engages the sub-processor. The processor shall restrict the sub-processors access to personal data only to what is necessary to maintain service and prohibit for any other purpose; enter into a written agreement with the sub-processor and impose on the sub-processor the same contractual obligation that the processor has under its DPA; the processor shall remain responsible for its compliance of this DPA and for any acts or omissions of the sub-processors that cause the processor to breach any of the processors obligations.”

Rights of Data Subjects

Considering the nature of the Processing, Processor’s shall assist the Controller by implementing technical and organisational measures, as far as possible, for fulfilling the obligation of the controller, to respond to the requests raised by the data subjects. 

“The processor offers, the controller, to comply with its obligation towards its data subjects. Should a data subject contact the controller with regard to correction or deletion of rectification or erasure of its personal data, the processor shall use commercially reasonable efforts to fulfil such requests or forward such requests to the controller.”

Data Protection Impact Assessment and Prior Consultation 

The processor shall assist the Controller in providing with (DPIA) data protection impact assessment and prior consultations with competent authorities, as required under GDPR or equivalent provisions of any other Law.

“The processor agrees to assist the controller in complying with the controllers’ obligation in respect of data protection impact assessments and prior consultation pursuant to the provisions of the GDPR.”

Erasure or return of Personal Data

Subject to this provision processor shall promptly from the date of cessation of service agreement involving the processing of personal data delete and procure the deletion of all copies.

“The controller has control to retrieve or delete the personal data from the possession of the processor. Following the termination of the agreement,  the processor consents to delete and/or return any personal data, held in its possession for the rendering of services in accordance with this agreement, as requested by the controller.”

Audit

Processor is required to make available to the Controller all information necessary to prove compliance and shall allow and contribute to audits, including inspections, by an auditor in relation to the processing of the personal data by it.

“The controller agrees to exercise any right it may have to conduct an audit or inspection of the processor. In the event, the processor declines to follow any instruction requested by the controller regarding audits and inspection, the controller is entitled to terminate this DPA and the agreement.”

Data Transfer

Processors shall not transfer or authorize the transfer of Personal Data to third countries (outside EU and/or the European Economic Area) without the prior written consent of the Controller. Parties will have to ensure that the personal data if transferred to a third country or international organization, are adequately protected. 

“The processor shall not transfer personal data from the controller’s selected region except as necessary to provide service or as necessary to comply with the law or binding order of a governmental body. Further, the processor shall clearly specify to, and take consent of, the controller before the transfer of personal data to a new location.” 

Why are DPA’s important?

GDPR demands that everyone, who processes personal data, for any purpose, using any means, must provide adequate safeguards and security in accordance with the provision of GDPR. 

Data Controllers who offshore data processing activities to processors and sub-processors must demonstrate that their sub-processors also provide the same level of protection and safeguards and act in compliance with GDPR.

How do Processors demonstrate sufficient guarantees?

Adherence to an Approved Code of Conduct (Art. 40)

The EU member states, supervisory authority, the Board and the Commission can draw up such codes of conduct. Associations and other bodies representing controllers and processors may also come up with their own set of codes of conduct, as per specific needs.

Certification Mechanism (Art. 42)

Member states can encourage data protection certification mechanisms, data protection seals, marks for to show adherence to the GDPR by the controllers and processors and also to signal existing safeguards. Such certificates shall be issued by competent certification bodies having expertise in relation to data protection.

Standard Contractual Clauses (SCC’s)

The commission may suggest standard clauses w.r.t providing sufficient guarantees for implementing technical and organizational measures etc. which can thereafter be adopted by the Supervisory Authority in accordance with the consistency mechanism (Art. 63) and in turn be incorporated in the contracts between controllers and processors.

Prior Consultation (Art. 36) & Data Protection Impact Assessment (Art. 35)

Controllers (& Processors) shall consult the supervisory authority where a type of processing, using new technology and taking into account the scope and purpose of the processing indicates a high risk of infringement to the rights and freedom of the personal data of the people, in the absence of appropriate safeguard measures taken; the controllers and processors will be liable to undertake a Data Impact Assessment and seek the advice of the data protection officer.

Security Measures (Art. 32)

Considering the costs of implementation, scope, varying risks and severity to the privacy like accidental or unlawful destruction, loss, alteration, disclosure or access to personal data, the controller and processor should implement appropriate technical and organizational safeguard measures like 

(i) pseudonymisation & encryption, 

(ii) ensure confidentiality, integrity, availability of systems and services, 

(iii) restore systems and services in case of an adverse physical or technical events, 

(iv) regular assessment and evaluation of the effectiveness of the security measure through testing.

Consequences of Infringement to the Regulations 

Right to Compensation and Liability (Art.82)

Any person who suffers a material or non-material loss due to infringement of GDPR regulations will receive compensation from the controller and processor for the damage suffered.

Penalties (Art.84)

Member states lay down the rules on other penalties for infringements that are not subject to administrative fines and takes all measures necessary to ensure that they are implemented. Such penalties are effective, proportionate, and dissuasive.

Imposing Administrative Fines (Art.83)

Supervisory Authorities are responsible for the imposition of administrative fines in case of infringements. Administrative fines shall be imposed depending on the circumstance of each case like 

(i) nature, gravity and duration of the infringement,

(ii) whether intentional or negligible character,

(iii) steps taken by the processor to mitigate the damage suffered by data subjects,

(iv) previous records of the processors, 

(vi) degree of cooperation with authorities,

(vii) adherence to codes of conduct

Conclusion

Thus, when a controller engages a processor, they must carry out prior due diligence, put in place a GDPR compliant DPA and throughout the relationship they must continue to carry out ongoing checks on the processor for use of their personal data to check they are complying with the instructions.

The controller must use only those processors that provide sufficient guarantees to implement appropriate measures in compliance to GDPR provisions.

These DPA can be in the form of an appendix, addendum, clause, or a standalone agreement. There can be additional commercial terms but should not undermine the DPA.

References


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Significance of the Medical Termination of Pregnancy (Amendment) Act, 2021 in light of the case of Mahima Yadav v. GNCTD

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Medical Termination of Pregnancy
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This article is written by Harman Juneja, a student of Dr. B.R. Ambedkar National Law University, Rai, Sonepat. The article talks about the significance of the Medical Termination of Pregnancy Act, 2021 in the case of Mahima Yadav vs GNCTD

Introduction 

The Medical Termination of Pregnancy (Amendment) Bill, 2020 was approved by the Union Cabinet last year. The Act proposes to increase the time limit for terminating a pregnancy from 20 to 24 weeks, making it easier for women to safely and legally end an unwanted pregnancy.

Previously, women who wanted to end a pregnancy after 20 weeks had to go through a lengthy legal process. This violates women’s reproductive rights, as abortion is regarded as a crucial element of their reproductive health.

An analysis of the Medical Termination of Pregnancy (Amendment) Act, 2021

Various verdicts that resulted in harm and conflict of interest, as well as laws, came together to drive the government to pass the recently authorized Medical Termination of Pregnancy Amendment Bill, 2020. Dr. Harsh Vardhan, Minister of Health and Family Welfare, tabled this law on March 2, 2020, and it is widely seen as a significant step forward for women’s rights.

The Act governs the circumstances under which a pregnancy can be terminated. The Act extends the time frame in which abortion can be performed. Previously, if abortion is performed within 12 weeks of conception, one doctor’s opinion is required, and if it is performed between 12 and 20 weeks, two doctors’ opinions are required. The Act enables abortion on the advice of one doctor up to 20 weeks, and two doctors between 20 and 24 weeks for specific categories of women. The Act establishes state-level Medical Boards to determine whether a pregnancy can be aborted after 24 weeks if there are significant fetal abnormalities.

It has also increased the gestation limit for women in “special categories,” such as rape survivors, incest victims, and other vulnerable women, such as differently-abled women and adolescents. A Medical Board will be formed in each state and union territory, comprising a gynaecologist, paediatrician, radiologist, and other members as determined by the government. If pregnancy has progressed beyond 24 weeks, a Medical Board will be consulted in the event of a significant fetal abnormality. Medical practitioners will only be able to share details of a woman whose pregnancy has been terminated to a person authorized by law, according to the Act.

According to the original Act, any pregnancy that arises as a result of a married woman’s or her husband’s inability to utilize contraception to limit the number of children may constitute a grave injury to the pregnant woman’s mental health. The new bill replaces the phrase “married lady or her spouse” with “woman or her partner”. More liberal moves will begin to be taken as a result of this.

Benefits of the Act

  • After the 20th week, a lot of fetal anomalies are discovered, changing a wanted pregnancy into an unwanted one. The fetal anomaly scan is usually performed during the 20th and 21st weeks of pregnancy. If this scan is delayed and it finds a deadly defect in the fetus, the 20-week period is the limit. This proposal would allow for the termination of a pregnancy if a fetal abnormality is discovered after 20 weeks. 
  • The law will assist rape victims, sick and underage women in legally terminating undesired pregnancies.
  • Significantly, the Act also applies to unmarried women, removing one of the 1971 Act’s regressive provisions, which prohibited single women from citing contraception failure as a cause for obtaining an abortion. Allowing unmarried women to medically terminate pregnancies while also protecting the privacy of the person seeking an abortion will give women the reproductive rights they are entitled to.

Issues related to the Act 

  • The viability of the fetus has always been a major part of the legality of controlling abortions. The period during which a fetus is capable of existing outside the womb is referred to as viability. This ‘viability’ naturally improves as technology advances, infrastructure is upgraded, and skilled experts are in charge of medical care. Currently, viability is estimated to be about seven months (28 weeks), however, it can happen sooner, even at 24 weeks. As a result, late pregnancy abortion may jeopardize the fetus’ viability.
  • Despite their unlawful status, sex determination centres remain in business due to the preference for male children. There are fears that a more liberal abortion law may exacerbate the situation.
  • According to 2017 data, 59 countries authorized elective abortions, with only seven countries (Canada, China, the Netherlands, North Korea, Singapore, the United States, and Vietnam), allowing the operation after 20 weeks.
  • Critics of the law have also pointed out that it ignores the ongoing healthcare crisis created by the pandemic. Given this, and India’s chronic dearth of doctors, they argue that requiring women to seek the advice of two practitioners and a medical board for some types of abortions is unjust. Disability groups have also raised concerns, which we will discuss later.
  • As IndiaSpend published a report in September 2020, abortion is still stigmatized in India, even among doctors. Doctors have been reported to refuse abortions on “moral” grounds or to ask women to bring their spouses or parents along for the procedure. This is especially true when the abortion is requested for reasons other than a woman’s physical health, as defined by the MTP Act, but because it may result in damage to her mental health which is also protected by the Act, according to these reports.

Analyzing the case of Mahima Yadav v. Government of NCT of Delhi and Ors, (2021)

Facts of the case 

In this case, the petitioner has filed the petition to obtain permission to have her pregnancy terminated medically. The provisions of the Medical Termination of Pregnancy Act, 1971 have been invoked by the petitioner. Although the petitioner’s fetus is more than 24 weeks old,  the learned counsel appearing on behalf of the petitioner contends that she should be allowed to carry out the termination due to the anomalies of the fetus and the risk to the petitioner, who suffers from severe hearing issues.

Findings of the court 

  • The new amendments in the Medical Termination of Pregnancy Act, 1971 allow the termination of a fetus in case of substantial abnormalities even after a 24 weeks period which is clear from the reading of Section 3 of the Act.
  • The fetus was more than 25 weeks old. Thus, the Medical Superintendent of AIIMS was ordered by the court to appoint a Board of Doctors to examine the Petitioner. A Chairperson and seven Members, as well as a Member Secretary, made up the Board of Directors. Following the examination of the petitioner, the said Board was to provide a report.
  • A review of the Medical Board’s decision revealed that the petitioner, or mother, is a known heart sufferer who had been prescribed blood thinners. The Medical Board believed that the fetus had warfarin embryopathy as a result of the blood thinner delivered to the petitioner, which had a risky prognosis in terms of immediate and long-term results, especially given the cerebral bleeding and ventriculomegaly.
  • The petitioner’s husband claimed that they know of the risk, as mentioned by the medical board and they were ready to undertake abortion. 
  • Given the fetus’s above-mentioned state, the court found that the described circumstances represent substantial fetal abnormalities that could affect the fetus’s physical condition, even if the pregnancy is permitted to mature. This would be harmful to both the mother and the child. Since the Amendment Act of 2021 had already been notified, and in light of the settled legal position established in the different judgments that were taken into consideration, the court thus concluded that pregnancy termination should be permitted even beyond 24 weeks.
  • The court looked at various cases and found that the recent amendments of the MCT are in line with the decisions taken earlier in various cases like Shaikh Ayesha Khatoon vs Union Of India & Ors (2018), Nisha Suresh Aalam v. Union of India & Ors (2018), Priyanka Shukla v. Union of India & Ors (2019), etc. In all these cases, termination was allowed after the said 20 weeks period which was prevailing at that time. Thus, the court found the amendments confirming these cases and the precedent set in these cases.

Viewing the judgment as a good precedent 

The High Court, allowing the petitioner for abortion after the 24 weeks mark, sets a good precedent for upcoming cases as well. Even the amendment does not allow every termination after 24 weeks, but only those abortions in which the fetus develops some serious abnormalities which are also prevalent in this case. The High Court looked at all the merits and allowed the abortion. The Supreme Court and High Court are vested with the power of judicial review in India under Article 226 of the Indian Constitution. In this case, as well as in previous decisions considered by the court, abortion was permitted after 24 weeks of pregnancy. Moreover, in all these cases, the allowed period was 20 weeks but still due to the need for termination, the same was allowed. Therefore, the following case not only sets a good precedent for abortion over 24 weeks but also finds the amendment in congruence with the earlier precedents.

Conclusion 

India has legislation in place when it comes to reproductive rights. Especially when the majority of the world’s women, that is, more than 40% of women of reproductive age live in 125 countries where abortion is severely limited, either prohibited or only permitted to save a woman’s life. What is lacking, however, is awareness and implementation. This is true in the cases of abortions, which are deliberate terminations, and miscarriage, which is a natural occurrence, both of which are traumatic. Though the Medical Termination of Pregnancy (Amendment) Act, 2020 is a start in the right direction, the government must guarantee that all clinical practice norms and standardized protocols for abortions are followed at health care institutions across the country. Furthermore, the issue of abortion must be decided following human rights, sound scientific principles, and technological improvements. The Act will help provide opportunities to single ladies as well and more time for abortion if necessary. The decision in the case of Mahima Yadav v. The Government of the NCT of Delhi strengthens the amendment and will act as a good precedent for future cases. 

References


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Fund rise and the effect of crowdfunding and investing on the real estate market

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This article has been written by Pankit Shah pursuing the Certificate Course in Real Estate Laws from LawSikho.

Introduction

A traditional source of capital like Banks, NBFC, Pension Funds, and the like- move to the sidelines due to the Coronavirus pandemic. Real Estate Promoters are looking for alternative ways to aggregate funds for their projects. For the Promoters of the Real Estate project, getting crowdfunding from the alternative investment is a more viable option. Real Estate Crowdfunding is a way of raising money for real estate investment by reaching out of the pool of investors to contribute a small amount of money towards a project. Real estate crowdfunding is also referred to as real estate peer-to-peer lending or financing of real estate projects. The Process of raising money is conducted via an online crowdfunding platform.

Real Estate Crowdfunding was started in the year 2020 in India. One of the reasons to find crowdfunding due to the coronavirus pandemic, there is the decline in the value of the real estate project and creating opportunity for individuals to invest in the commercial project. There are many investors with cash-rich, they had money to spend and invest in the property. As an investor, to be successful with real estate cloud funding, it’s required that you should select the right crowdfunding platform. By using crowdfunding to make a real estate investment, you will get profit to access a wider range of real estate markets with only a small amount of money. Some popular platforms like, realty mogul, origin investment, fundraise,

Advantages of crowdfunding

  1. Portfolio diversification:-

In crowdfunding investment, you can minimize the risk that comes with making a singular investment by spreading that risk across numerous investments. If one of your investments happens to fail, your investment portfolio will spread across numerous investments. Example: You invest Rs. 1 Crore in Investment A, or Invest the same amount in Various Projects like A, B, C, D, E. If you invest only A and if the project will fail then you lose the entire money ( i.e., 1 Crore). But if you invest equally in projects A, B, C, D, E then if A will fail then the other four will balance the or you will lose only 20 lakhs. Portfolio diversification is one of the notable benefits in real estate crowdfunding. Portfolio diversification minimizes the risk of the investor.

2. Accessibility 

Engaging in real estate investing has been made much more accessible with Crowdfunding, Private real estate investments were once only available to high-net-worth investors who had the capital and connections that were needed to access the investment. The entry point for the real estate investment market is much lower than it’s ever been.

3. Geographically diversification 

In Real Estate Crowdfunding investments invest in different geographical locations. Every area provides a different return, many areas give very high returns and many areas provide very little return. The real estate market in one city may be healthy, it is possible that the market in another location could experience a significant downturn. 

If you invest all your money in one location, it may possibly give a negative return on investment, but if you invest in real estate crowdfunding you will issue a broader market, and you will have options where to invest.

4. Passive Investment Vehicle

Passive investing refers to a buy and hold portfolio strategy for long-term investment horizons, with minimal trading in the market. Index investing is perhaps the most common form of passive investing, whereby investors seek to replicate and hold a broad market index or indices. Passive investment methods seek to avoid fees and avoid frequent trading. The passive investment will create wealth gradually.

This is one of the attractive aspects of investing in real estate crowdfunding that is a passive investment vehicle, as contrasted to more traditional real estate investment vehicles, such as direct ownership.

For the people who make traditional investments, generally will need to spend considerable time managing the property to make sure that it’s developed on time and according to specifications and bear all the associated risks. With crowdfunded real estate investments, you are investing with a third-party real estate developer or operator who does all the work. You are trusting that the developer will do all of the required work on time and on budget. You do not need to deal with the frustration of managing the property. 

5. Small investment Size

Real Estate Crowdfunding provides you with the opportunity to become a real estate investor because of the small investment size requirements. Many Crowdfunding platforms allow potential investors to make an investment of as little as Rs.10000/-. Investors need not to invest Lakh or crores that would more typically be required to purchase a property to invest in real estate.  The smaller investment amount also allows you to “tip your toe in the water” if you are new to real estate investing or achieve greater diversification. In traditional investment in real estate, you require to invest 40 to 50 lakh depending upon the city to city and area and location. 

Disadvantages of the crowdfunding

  1. Lower Relative Return:-

As compared to other assets like Equity Market, Gold Market, and debt market, many times real estate investment provides hardly 4 to 5 percentage return or many times it will provide a negative return. It purely depends upon the project size, location, and market condition. 

2. Illiquid Investment:-

One of the most disadvantages of Crowdfunding in real estate is you cannot exit where you want to be. There is a certain locking period in the funding. While other assets like Equity, Gold, and Debt securities are sold wherever you want money. 

Investors of crowdfunding will hold a significant amount of time and that may cause the value of the property to drop over time. If an emergency occurs, it could be impossible to cash out on the investment.

3. Lack of control:-

A more traditional form of Investment provides investors with the ability to manage the project. While you invest in Crowdfunding you cannot control the investment. Once you make the investment with crowdfunding, the developer of the property will manage the property. 

How to invest in crowdfunding in Real Estate?

If you want to invest in crowdfunding, then first you will select the crowdfunding platform and join. Each Crowdfunding requirement is different from each depending upon geographically are focused. One of the principles that should consider while investing in crowdfunding is minimum investment. Many Crowdfunding provides investment Rs. Minimum Rs. 5000/-. Most crowdfunding platforms provide you with the ability to put money into equity or debt instruments. In an equity instrument, you will receive a stake in the property directly. Inequity instruments, return on investment, to share the rental income or profit on selling the property. In a debt instrument, you will be placing your money into a loan. These loans are typically secured by the underlying real estate serving as collateral and will be repaid with interest on monthly, quarterly, or yearly depending upon the contract or agreement between the parties. You have to select the right platform. Remember, each crowdfunding platform is different. While you select crowdfund in real estate make sure that that platform will invest in different projects to mitigate the risk of investors rather than invest in one project. You have to understand the terms and conditions and the locking period. Generally, the locking period is between 1 to 10 years.

Split by investment purpose 

  1.  To Let out Property:-

The purpose of this type of investment is to purchase a property specifically to let out or for rent out. The property once bought will be renovated to increase its attractiveness towards renters.

2. To sell out the Property:-

The purpose of the investment is to gain out of the selling property at a higher price. Usually, profits are made to renovate the assets and sales of the renovated asset at a higher price.

3. Development Loans :

The purpose of the investment is to finance the construction of a new building with the purpose of either sell it out or make it a rental income from the property. Investors will get a fixed rate of interest on the amount invested.

The best real estate crowdfunding sites of 2021

  1. Best Overall: https://www.crowdstreet.com/.
  2. Best REIT Option: https://diversyfund.com/.
  3. Best for Institutional Commercial Real Estate:https://www.equitymultiple.com/.
  4. Best for Beginners: https://fundrise.com/https://fundrise.com/.
  5. Best for Investing in Loans: https://www.peerstreet.com/.
  6. Best Property Research: https://www.realtymogul.com/.

Conclusion

Crowdfunding is a new concept to invest in property with a very small amount. In Every new concept, there is some loophole and many times the investor is not aware of that, so it is the duty of the crowdfunding platform to show the risk factor and history of the promoter of the project. In India, there is a regulator like SEBI, IRDA to protect the interest of the investor. Real Estate Crowdfunding is not for everyone. It is important to understand the advantages and disadvantages.

References

  1. https://www.millionacres.com/real-estate-investing/crowdfunding/real-estate-crowdfunding-good-investment/.
  2. https://andersonadvisors.com/real-estate-crowdfunding/.
  3. https://www.investopedia.com/articles/investing/072514/real-estate-and-crowdfunding-new-path-investors.asp.
  4. https://www.moneyunder30.com/should-you-invest-in-real-estate-crowdfunding.

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Indian agriculture and women – the legal gap in feminized agriculture

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Protection of Plant Varieties and Farmers Rights Act, 2001

This article is written by Arya Mittal from Hidayatullah National Law University. The article deals with the role and problems of women in the Indian agricultural sector, the legal gap that exists in this feminisation and the possible solutions for the same.

Background

Farmerette – defined by Merriam Webster as a female farmer. Most of us have been unaware of this term. Even if we consider farmer as a gender-neutral word, the first image that comes to our mind is that of a man working hard in the fields out in the sunlight. Did we hear of the farm suicides which caught the attention of almost the whole media? Even then we could only imagine a man (male farmer) hanging from a tree or committing suicide. India has been a patriarchal society and despite the significant role of women in various sectors of the economy, these sectors continue to be male-dominated and in certain cases, fail to give enough recognition to women. Agriculture is one such field. OXFAM has revealed that women contribute to a whopping eighty percent of total farm produce and seventy-five percent of full-time workers in farming are female workers. 

Yet, we have failed to give enough recognition to these women in feeding the country with the second largest population in the world. They work in the fields, do household chores, take care of children, collect wood from forests and water from faraway rivers but still, all of this does not seem enough to applaud their efforts. Since 2017, the Ministry of Agriculture and Farmers Welfare has been celebrating Mahila Kisan Divas (Women’s Farmers Day) every 15th of October, but most of us are unaware of the same. Right from sowing the seeds to selling their produce, they are involved in every process, balancing between their farms and children and household chores. This article aims at discussing the increasing feminisation in agriculture. Their role in agriculture, problems that they face at work, the role of the legal system and a lot more has been discussed to get a holistic view of the difficulties female farmers face at work. 

Division of labour amongst the genders

Patriarchy is deep-rooted in the Indian society and women have always been considered weak, docile and submissive. It is believed that women are not capable of performing strenuous tasks or labour-intensive jobs. As a result of this mindset, there is a division of labour between the genders and the existing wage gap between the two genders is a consequence of this division of labour. Female farmers work on their own fields and perform all the activities ranging from weeding, sowing, plantation to ploughing and harvesting. Yet, while they work on someone else’s farm as paid labourers, they are considered to be weak and are only given those tasks which do not involve physical strength. Tasks such as ploughing and spading are considered ‘manly’ and are not to be performed by female labourers. As a result, they receive lower wages than male labourers, despite them working for extra hours. 

Role of women in agriculture

The Indian women play a crucial role in feeding the whole country, however, their efforts and hard work are often overlooked. Little or no recognition is given to their efforts despite the work they perform. From the very basic process of sowing the seeds to storing the grains, they are present everywhere and perform all the processes in between. Their role is discussed hereafter.

Agriculture

Women have an important role in the production of crops. They are involved in labour-intensive tasks such as hoeing, weeding, etc. They are even responsible for the irrigation of crops. It is to remember that a large part of India still does not have proper access to water and they walk long distances to fetch water for their household as well as their farms. They are engaged in different roles depending on their economic status. They might work on their family land or be engaged as paid labourers on someone else’s land or even act as supervisors and get involved in post-harvest activities such as separating the grains, marketing, etc. Additionally, they engage in many other ways such as managing the nurseries, spraying fertilizers, protecting the crops from extreme climatic conditions, harvesting the grains and later winnowing them to separate unwanted substances and storing them till it is finally sold. These post-harvest operations are largely managed by women. Their work does not stop here. Many women are also responsible for selling these crops in the mandi where they face different kinds of struggles in order to fetch little money. 

Cattle management 

Livestock is a substantial source of income for many sections of rural India. It has been an age-old custom in most parts of the country to give cattle to the bride when she gets married to ensure her sustenance post marriage. Indeed, it is a boon for rural households, yet the role played by women in maintaining the livestock is largely ignored. Maintenance of livestock serves a dual purpose, personal and commercial. Women are responsible for cleaning the cattle and their sheds. They are also engaged in collecting fodder for the livestock to ensure its sustenance. In case the animal gets sick, they take care of such an animal. Additionally, the excretion of animals serves as a good source of nutrients for soil and women prepare manure. They also prepare cow dung cakes from this waste which they can sell to earn extra income or burn for cooking food. They are also engaged in making products from the milk of the cows. The milk is churned to prepare butter, fermented to form a curd, or processed to make other milk products such as cheese, cottage cheese, etc. Women are predominantly engaged in all the activities relating to the maintenance of livestock except for grazing, which is mostly done by men. Despite their role, these contributors to the primary sector remain invisible and unrecognized. Owing to the substantial contribution of livestock in the agricultural economy i.e. nearly forty percent as well as a contribution of six percent in the GDP of the country, the efforts of women need to be applauded. 

Poultry

Poultry is another major source of income for rural India. Many rural households have hens, ducks, etc. to cater to their economic needs. They sell eggs and meat to earn an extra income. Backyard poultry farming has become a recent trend that has significantly improved the health of rural people. Herein, the women rear the hens in their homes themselves to get eggs and meat. Despite the lack of infrastructure and equipment, women have handled the task well. Backyard farming has reportedly helped a lot of rural households to earn their livelihood. It has not only emerged as a source of income but has also helped in improving the nutritional requirements of these people. Poultry eggs are a vital source of protein and are cheap as well. Therefore, it now helps them to have a protein-rich diet and helps them live a better life. Lastly, it is noteworthy that backyard poultry farming contributes approximately twenty percent of the poultry sector and is effectively managed by rural women. Seeing the increased role of women in poultry farming, the government at the central level as well as state levels have formulated different schemes to empower their role in this sector. To conclude, their continuous efforts have helped to improve the health conditions of rural people, their economic status as well as the agricultural sector of the economy as a whole.

Feminization of agriculture

Concept of feminization

The feminisation of agriculture denotes the increased proportion of women in agricultural and allied activities. The word was first observed in the Indian context in the Economic Survey Report of 2017-18. The report admitted that the role of women has been crucial in the primary sector which has benefited the economy in ensuring food security and preserving agrobiodiversity. The change has been witnessed globally and with the recognition in the Economic Survey Report, India has also become one of the countries to witness this change. There have been different reasons for this gender shift, some of which are mentioned below. 

Cause for feminisation

Low pay, more work

The patriarchal Indian society has found it easier to harass female workers. Due to their socio-economic circumstances, they are willing to work for lesser wages and more hours. Their work remains substantially the same as that of their male counterparts. They are paid irregularly, knowing that she is helpless and is considered docile. It saves the costs of the big farmers and helps them to accumulate capital.

Unfree labour

Unfree labour refers to exploitative labour relations to make someone work against the favour done to them. Rural men often take loans from moneylenders to migrate to another city for work or any other purpose. In consideration for the same, their wives are made to work during the agricultural season. They are paid lower wages than the prevailing market rate, made to work more and even restricted to work for someone else. This way, the women are first made to work on the field of creditors and then on their field apart from the household work, which is unavoidable. 

Mobilisation by men

In recent times, it has been observed that more men are migrating from agricultural to non-agricultural jobs to work as casual labourers, drivers, carpenters, etc. It is believed that these tasks are most respectable and can be exclusively performed by men since it involves rigorous labour. In such a scenario, it is the women who take charge of the family farms since the jobs of men are insecure and even if they are earning, it provides an additional source of income. Moreover, in times of COVID-19, when men came back to their villages and had no jobs, the women worked in the field to earn income to run their households. In such a situation where women are helping to generate an agricultural income while men are involved in non-agricultural jobs, they are merely termed as supplementary bread earners and rarely get any recognition.

Problems faced by female farmers

Pay gap and wage problems

This is one of the most common problems that Indian women face in different sectors throughout the country and agriculture is no exception. Women work nearly twice the hours on the field as men do yet they are paid only seventy percent of what men receive. These payments are also irregular. There is a huge gender disparity that exists in the agricultural sector. One-third of the women work as unpaid labourers in the fields of their parents, husband or in-laws but they receive no recognition or money for their work. 

Lack of land ownership

Female farmers own less than two percent of the inherited lands in India and less than thirteen percent of total farmlands in India. Despite the change in inheritance laws in the country, the situation remains the same owing to the social pressure wherein women transfer their rights to the male members of the family or the male members get rights in a hostile manner. In either of the cases, they are left with nothing. This refrains them from entering into contracts with different parties since they do not have legal possession over the land. 

Financial difficulties

As a result of a lack of ownership rights, they fail to get credit when they need money for the cultivation of crops. The banks require collateral failing which they cannot receive a loan. Moneylenders charge high rates of interest which are not feasible. Still, if she chooses this way, the high rates of interest ensure that her economic burden only increases and this turns into a vicious cycle. A study revealed that merely four percent of women have access to institutional credit in the state of Uttar Pradesh. 

Policy failure

Until the Economic Survey of 2017-18, the agrarian policies paid no heed to women and the policy benefits were entitled to male farmers since most of the state governments regarded only those individuals as farmers who were land title holders. As discussed above, only a few women had been entitled to ownership of land and thus, the women were reduced to the status of cultivators and were not provided with any benefits in terms of credit, seeds, equipment, etc. It was only after the Economic Survey report that they were recognised and policies were suggested to be formulated to encourage their role. Yet, the situation has not improved to a considerable extent and the women continue to suffer. 

Less exposure to agricultural developments 

The multi-layered problems of policy failure, financial difficulties and lesser rights have also kept them away from the technology. They continue to work in the traditional manner which proves to be costly and time-taking. Lack of education for women in Indian society also prevents them from accessing technology. They remain unskilled and continue to strive to earn their livelihood. Hence, they remain unaware of the developments in the sector which leaves them with lesser or no profits and consumes their time and energy. 

Suicide

It is unfortunate that the already suppressed continue to remain suppressed even after death. The farmers’ suicide which continues to remain an important concern of the country fails to consider women as part of this struggle. The data of female farmers remains mostly unreported. As reported by the Hindu, fourteen percent of farm suicides in Karnataka in 2019 were that of women. In that year, nearly twenty percent of farm suicides were in Karnataka. The rest of India has not even been taken into consideration. Yet another problem is when male farmers commit suicide, the ultimate burden of clearing the debts comes on their wives, who are often forced to work for free for the creditors, leaving their own farm and household. 

Agriculture reforms

The new farm laws have faced a lot of criticism. Though the laws aim to make the process easier, yet these laws can have catastrophic effects on female farmers. Everyone has witnessed how women have also participated in rallies against farm laws in large numbers. They took all the pain to come all the way from the villages to participate in the rallies leaving behind their children and household chores. This makes it clear that these reforms will have a negative impact on the lives of women.

The problem that stems from these laws is that they will leave women nowhere. Women do not have equal access to the market as men. The earlier system ensured that they could sell their produce in the nearest mandis but with the new laws, it will become difficult for them to travel farther places and search for buyers. The female farmers do farming apart from their household chores. So, in such a scenario it will become difficult for them to balance both works simultaneously. Moreover, India is a male-dominated society and the male buyers will force these women to sell their produce at a lesser rate. Also, it is known that women have less access to justice. Thus, in case they are harassed, they will have no legal redressal in courts and would have to reach out to the agricultural board which might not be a feasible option for most of the women. 

Steps taken by the Government of India

Various schemes have been formulated by the Ministry of Agriculture & Farmers Welfare and the Ministry of Rural Development some of which are mentioned below.

  1. Mahila Kisan Sashaktikaran Pariyojana (MKSP)
  2. Agri-Clinic & Agri-Business Centre (ACABC)
  3. Integrated Schemes of Agricultural Marketing (ISAM)
  4. Sub-Mission of Agricultural Mechanization (SMAM) 
  5. National Food Security Mission (NFSM)
  6. Mission for Integrated Development of Horticulture (MIDH)
  7. National Mission on Oilseeds and Oil Palm (NMOOP)
  8. Sub Mission on Seed and Planting Material (SMSP)
  9. National Mission on Sustainable Agriculture (NMSA)

All these schemes have ensured to earmark a minimum of thirty percent towards the development of female farmers. MKSP which has especially been formulated for women in agriculture has been able to achieve some success and has proved to be most fruitful among all the policies. It aims to skill women and provision them with production assets and extension services. The scheme has seen achievements in certain states in terms of women’s access to markets, information, resources and even empowering them to a considerable extent. 

Role of law

Article 39 of the Indian Constitution directs the state to ensure that there is equal pay for equal work to both men and women. Therefore, the state should strive to ensure that there is not a gender-based wage gap in agriculture as well as other sectors of the economy.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has been ratified by India in July 1993. Article 14(2)(g) of the convention directs the state parties to ensure that women have equal access to marketing facilities, agricultural credit and loan, appropriate technology and most importantly, equal treatment in land and agrarian reforms and land settlement schemes. 

Additionally, various statutes have been enacted to ensure the provision of certain basic rights to female farmers. Section 25 of the Plantations Labour Act, 1951 prohibits the employment of women after 7 P.M. and before 6 A.M., except with the prior permission of the State Government. Maternity Benefit Act, 1961 applies to establishments that include plantation. Thus, all the maternity benefits provided in the statute are applicable to female farm labourers. Equal Remuneration Act, 1976 is also applicable to female farmers and Section 4 of the act mandates that similar wages should be provided for a similar kind of work. Yet, a huge gap of nearly 30 percent exists between the wages of male and female farmers, as stated by FAO. Lastly, different personal laws governing different religions have tried to provide equal inheritance rights to daughters but these laws suffer from practical difficulties. 

Need for gender-based agriculture laws

From the above-mentioned information, it is imperative that India needs gender-based agricultural laws to support female farmers in the struggles they face every day. Even the Economic Survey Report 2017-18 has suggested adopting gender-specific interventions. Undoubtedly, sanction needs to be created to protect the rights of women. Recognising the same, Women Farmer’s Entitlement Bill, 2011 was introduced by Prof. M.S. Swaminathan (former member of Rajya Sabha) back in May 2021. Unfortunately, the bill lapsed and no action was then taken. The bill gave recognition to female farmers in a real sense, considering them to be a farmer devoid of their landholdings or marital status. The bill could have solved some major issues such as land rights, water rights, access to credit, etc. It even provided for penalties in case of non-compliance and formation of a board for redressal. 

It is high time that the legislature realises that the country is in need of a legal framework to protect the rights of female farmers. They constitute four-fifth of the agricultural workforce and not providing them with sufficient rights will hinder their right to life. A centrally enacted law should be in place to cater to their needs so that these invisible contributors to the economy could live a peaceful life.

Way forward

The significant role of women in agriculture and allied activities cannot be ignored. Statistics have shown that if they are provided with proper infrastructure, then the overall production can rise by nearly 30 percent as per the survey report of FAO. Even otherwise, it is important to secure the survival of these women. The condition of women cannot improve unless and until there is a stringent law that determines the rights of these farmers and recognizes them as farmers devoid of their landholdings. It is of vital importance that a centrally enacted law needs to exist to help women get basic rights such as equal pay, access to the market, access to technology, access to infrastructure and every other thing that their male counterparts have access to. Moreover, the newly enacted farm laws should be reconsidered from the perspective of safeguarding the rights of female farmers, in absence of which, female farmers will be left with nothing in the upcoming privatization era. Additionally, an efficient regulatory mechanism needs to be set up to ensure the proper execution of laws. This is important since even now certain laws exist, but they have no practical applicability and are far-fetched. There should be a proper system for redressing their grievances. To sum up, efforts are required from all the wings of democracy to solve this crisis.

Conclusion

Women have played a crucial role in the agricultural and allied sectors by constituting three-fourths of the whole workforce, producing nearly eighty percent of the total production and working for nearly twice as many hours compared to men. The multi-layered problems of female farmers need to be addressed so that they have equal access to resources as men. They manage their household and work on the farms without any recognition. These are the invisible contributors to our economy, whom we fail to provide with the most basic rights and recognition. The aforementioned struggles of women need to be addressed and solutions need to be provided for the same. In light of Article 39 of the Indian Constitution and CEDAW (ratified by India), it is the duty of the state to ensure that the rights of women farmers are protected so that feminized agriculture proves to be a boon for the country.

Note: SEWA (Self-Employed Women’s Association) is a registered trade union working for empowering the self-employed rural women of the country with reach across sixteen states of the country. MAKAAM (Mahila Kisan Adhikaar Manch) is yet another organisation that specifically works for the rights and recognition of female farmers across twenty-four states of the country. Any female farmer may contact them to seek assistance.

SEWA – +91 79 25506444

MAKAAM – 020 2588 0786

For further reading 

A detailed guide for all the schemes can be accessed here.

References


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What to do when one witnesses animal cruelty : a brief guide

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Image Source: https://bit.ly/3syUk2Q

This article is written by Yash Kapadia. This article is a brief guide on how one must act upon witnessing a scenario of animal cruelty in India.

History of animal cruelty and its laws

It is public knowledge across the globe that various animals are worshipped in India. However, despite this fact, our diverse culture also includes cruelty towards these innocent creatures. Animals in India are used for various purposes, including husbandry, agriculture and even transportation in various remote villages. For instance, ironically, although cows in India are considered holy they are frequently used for transportation in metro cities like Mumbai.  However, on the good side, the Constitution of India along with various central and state legislations have placed laws for the welfare of wildlife in India.

History of laws

It is a fundamental duty in the Indian Constitution to protect the wildlife around us. This is further complemented by the Directive Principle of State Policy wherein it is stated that an endeavour must be made to protect our environment and the forest and wildlife under Article 48A. There exists several animal welfare legislations in India namely, The Prevention of Cruelty to Animals Act, 1960 and the Wildlife Protection Act, 1972 at the Central level and various legislations at state levels.

The Indian Penal Code, 1860 (IPC) under Section 428 and 429 state the punishment of cruelty such as “killing, poisoning, maiming or rendering useless of animals”. The aforementioned laws have been put in place so that the pain and suffering of animals can be diminished and similar legislations continue to be put into force according to the changing circumstances.

Important Legislations with relevant sections

The Prevention of Cruelty to Animals Act, 1960

The primary cruelty law of India is in the form of The Prevention of Cruelty to Animals Act, 1960. The objective of this Act is “to prevent the infliction of any type or sort of unnecessary pain or suffering on animals and to change the laws relating to the prevention of cruelty to animals.” The Act defines “animal” as “any living creature other than a human being”. This Act was a major transition towards recognising strays and making laws for the protection of stray animals.

The Act provides us with a scope of when an animal is meant to be treated cruelly under Section 11. In this Section, cruelty in scenarios of employing an animal, confining an animal, sale, etc are enlisted. Animals herein include strays and pets. It is pertinent to note that on the first conviction, treating animals cruelly is punishable with a fine of Rs. 10, extendable up to Rs. 50. On a second or subsequent offence, if committed within three years of the previous one, he is to be punished with a fine of Rs. 25, extendable up to Rs. 100 or with imprisonment which could extend up to 3 months or both. Performing various operations to improve lactation of an animal that is injurious to its health is also punishable with a fine of Rs. 1000 or imprisonment up to 2 years or both.

The Wildlife Protection Act, 1972

The Wildlife Protection Act, 1972 is a much better version of the Prevention of Cruelty to Animals Act, 1960. According to Section 2(37) of the Act, “wildlife” includes any animal, living on land or water or in vegetation that forms part of any habitat. Therefore, the definition of ‘wildlife’ has been broadened by this Act.

Section 9 of this Act prohibits the hunting of any wild animal that is stated in Schedule 1, 2, 3 and 4 and punishes such an offence with imprisonment for a term which may extend to a period of 3 years or with a fine which may extend to Rs. 25,000/-, or with both.

What to do if you witness animal abuse?

Now that our readers are well equipped with the laws that go hand in hand concerning animal cruelty, we shall now move ahead to the approach one must take if one sees/ experiences an instance of animal cruelty in any form. This may include starvation, confinement, beating, experimentation or any sort of animal testing.

Compose yourself

At the outset, when a person’s attention is drawn towards any sort of animal cruelty happening, one must compose the emotional outburst at the very instance. This will lead to everything that follows. A wrong composure and not being able to stay calm will lead to irreparable harm caused to the animal. The first thing one must do is to take the injured animal to a veterinary hospital, and if one is not comfortable doing so, contact an animal care NGO through Google.

Document the crime in any form

If one sees that there is a violation of animal rights, one must either record it on video (which is very prominent nowadays) or take the help of eyewitnesses around. Section 65 of the Indian Evidence Act, 1872 recognises video evidence and states that it is admissible in court. It has already been stated that treating animals with cruelty is an offence punishable under Section 11 of the Prevention of Cruelty to Animals Act, 1960. It is also to be noted that one must make sure he/she does not put themself in danger in the process of gathering evidence.

Send a legal notice

Legal notice can be sent via a lawyer to the animal abuser and if one does not have the means to contact a lawyer, a legal notice can be sent through animal welfare agencies which are sure to help in such scenarios. Many lawyers will indeed help in sending a strong-worded legal notice as pro-bono work from their end. However, if no redressal or action is taken by the person abusing the animal, we move to the next step of filing an official complaint.

Filing of a First Information Report

After gathering evidence, one must immediately take the same to the nearby local police station where the crime was committed and lodge a formal First Information Report (FIR) detailing the entire incident of cruelty towards the animal. The relevant laws to charge the animal abusers have been mentioned above. If for some reason, an FIR is not being registered, one must take this matter to a higher degree officer, i.e., a Superintendent of Police or Deputy Police. Even if this goes in vain, which is highly unlikely, one has the right to file a complaint of animal abuse in a court of law. When it comes to the court, one will need the help of a lawyer or animal welfare groups having lawyers, who can help in such situations.

Or

Lodge a Wildlife Offence Report:

A Wildlife Offence Report can be filed with the police under Section 50(4) of the Wildlife Protection Act, 1972. According to Section 55 of the same Act, the following people can file a complaint to the magistrate:

  • “The Director of Wildlife Preservation or any other officer authorized on his behalf, who is authorised by the Central Government, Members of Central Zoo Authority or Member-Secretary of Tiger Conservation Authority, Director of the concerned Tiger Reserve.
  • Chief Wildlife Warden
  • Any person who has given another person/group notice of at least sixty days, of his intention to make a complaint.”

Arrest by an individual

One must be aware of the fact that Section 43 of the CrPC allows an individual to arrest an offender who commits a non-bailable and cognizable offence or is a habitual offender and hand him/her over to the police. All offences in the Wildlife Protection Act, 1972 are cognizable and non-bailable. Even so, it is always recommended to take assistance from a local NGO or local police officers.

The approach of Indian Courts through dictums

Animal Welfare of India v. A Nagaraja and Ors, (2004)

In this case, the traditional sport of Jalikattu practised in Tamil Nadu as a ritual during the Pongal festival every year was brought under the radar of the Hon’ble Madras High Court, and the validity and constitutionality of this traditional sport/ ritual were challenged. A case was filed before the Hon’ble Supreme Court by the Animal Welfare Board of India seeking a blanket ban on the primaeval traditional sport/ ritual. When the practice of Jallikattu in 2014 was banned by the apex court, it relied on and mentioned various sections of the PCA, 1960, which addresses the unwarranted suffering of animals. Relying on Section 3 and Section 11, the Hon’ble Supreme Court declared that all animal fights incited by humans are illegal including those carried out under the pretext of tradition and culture. It was also held that “Article 51A(g) of the Constitution of India is the Magna Carta of animal rights in India, and also extends the right to life under Article 21 of the constitution, to every living being including animals.”

State of U.P Vs. Mustakeem and Ors, (1999)

The Supreme Court, in this case, stated that in cases of cruelty, the custody of animals should not be given to the accused but to the nearest gaushala or a pinjrapole, until the conclusion of the trial.

Shri. Ajay Madhusudan Marathe Vs. New Sarvodaya CHS Ltd, (2010)

In this case, the State Consumer Redressal Commission rejected the appeal before it and opined that a society cannot prohibit a resident from having pets and utilizing his/her facilities for pets. The pets shall be allowed to use the lifts just as other members of society. This ruling by the consumer commission reiterated that residents cannot be prevented from having pets and those pets shall not be banned from using lifts.

People for Ethical Treatment of Animals v. Union of India, (2004)

The Hon’ble Delhi High Court, in this case, ruled in favour of the Petitioner (PETA) and held that if the makers of a movie want to use an animal in it, they would first have to obtain a certificate from the Animal Welfare Board of India, which contains various provisions of the Performing Animals Registration Rules, 2001. This ruling has prevented animals from being exposed to extremely loud, strange sounds, beaten or kept without food and water on the sets and locations of movies.

Karnail Singh & Ors vs State Of Haryana on 31 May, (2019)

The Hon’ble Punjab and Haryana High Court, in 2019, held animals to be legal persons. This was perhaps a welcoming step in Indian judicial dictums. While delivering the judgment Justice Shri Rajiv Sharma, stated that “All the animals have honour and dignity. Every species[s] has an inherent right to live and is required to be protected by law. The rights and privacy of animals are to be respected and protected from unlawful attacks.” The Hon’ble Judge further declared that “The entire animal kingdom including avian and aquatic are declared as legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person. All the citizens throughout the State of Haryana are hereby declared persons in loco parentis as the human face for the welfare/protection of animals.

Conclusion

We skimmed through the history of animal cruelty in India and enlisted the necessary legislation that is in place. In addition, we provided a roadmap on how one can approach a situation of animal cruelty, which was followed with landmark case laws in the domain. From what has been stated, it is crystal clear that the judiciary has been recognising the rights of animals and is intolerant towards various forms of animal cruelty. However, the cases of animal cruelty are still in abundant numbers which are to a large extend on account of meagre penalties.

If there are stringent punishments and fines levied on abusers of animals, it would lead to a decline in animal cruelty cases. With the increase in technological media platforms, we have time and again seen viral videos of animals being abused and necessary welfare associations or police taking action against them. It is a good approach that social media is used as a tool to catch the perpetrators but when stringent laws are in place, an abuser would refrain from doing such acts knowing the repercussions he would have to face.

All in all, the shebang of this article was to enlighten every reader on what must be done if an action is to be taken against animal abuse being witnessed by him/her. If every person does his bit to stop animal abuse, we, as well as animals that are part of our natural habitat, would be able to coexist in a beautiful environment.


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All you need to know about FOB

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This article has been written by Janki Joshi pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution  LawSikho.

Introduction

India’s merchandise export witnessed a huge jump of 58% year-on-year and touched a record $34 billion in March of this year, indicating a recovery in demand, preliminary data released by the government showed. Sequentially, the growth in merchandise export was 21%.  Indian export of goods and services, as a percentage of GDP is 18.41% and import is 21.14%.

With this much import and export, it is important to know about the important International Commercial Terms (Incoterms). In the course of international trade, it is complex to understand the extent of liability of seller and buyer towards the traded goods. The incoterms provide clarification in that matter. FOB is one of the 11 terms of the latest Incoterms 2010 rules. It was developed by the cooperation of 134 countries with the support of the International Chamber of Commerce (ICC) and recognized by UNCITRAL.

This article will provide you with information about one of such incoterms: Free On Board (FOB). In simple terms, FOB means the seller has the responsibility to load the shipment in a particular vessel. After that all the responsibility of the shipment is of the buyer.

The article will also give you a brief insight in the area of marine insurance and the types of marine insurance policies. 

Incoterms and their meaning

  1. EXW (Ex Works): This means that the seller will hand over the ownership of goods to the buyer at a point agreed by both the parties. And after the transfer of ownership all the responsibility of shipping the goods will be on the buyer.
  2. FCA (Free Carrier): The seller makes the goods available on his own place of business or at some other location agreed by the parties and after that the buyer has to clear all the obligations, starting from the clearance of export.
  3. CPT (Carriage Paid To): The same responsibilities and terms apply with this term as with the FCA, but in this case the seller also pays all delivery costs to a certain location.
  4. CIP (Carriage and Insurance Paid): It is the same as CPT and the seller will have the same responsibilities. But, in addition to that, the seller has to pay the insurance charges and the coverage of that insurance should be broad. However, the parties can come to an agreement about the limitation of the coverage.
  5. DAP (Delivery at Place): Here, the seller is responsible for all the charges that need to be paid until the goods reach a certain location agreed by the parties and after that the responsibilities are transferred to the buyer.
  6. DPU (Delivery at Place Unloaded): The seller covers all costs and risks to bring the goods to an agreed location. There they can be unloaded and moved to other – or similar – modes of transportation. The seller organizes customs and unloading, but the buyer is responsible for customs clearance and any associated rights.
  7. DDP (Delivery Duty Paid): All the responsibilities of export, import and everything related to shipment and delivery are of the seller. The responsibilities of the seller are complete only when the goods reach the delivery address of the buyer and are ready to be unloaded.
  8. FAS (Free Alongside Ship): The seller’s responsibility is to deliver the goods near the loading point. Thereafter, all the duties and responsibilities of import-export clearance transfers to the buyer.
  9. FOB (Free On Board): The seller’s responsibility is to load the goods on the vessel. Also, the seller is liable to clear the export. After the loading and export clearance, the liability transfers to the buyer.
  10. CFR (Cost and Freight): The same conditions apply as with FOB but the seller must also pay for transportation of the goods to the port of shipment.
  11. CIF (Cost, Insurance, and Freight): It is the same as CFR. The only difference is the seller needs to pay minimum insurance charges for marine insurance of the shipment.

Free On Board: what does it imply?

FOB is used to bifurcate between the liability of the buyer and the seller. The term is used only in cases where the trade is happening by way of the sea. Let’s understand the situation through an example. 

For instance, the seller is a resident of country A and the buyer is a resident of country B. Now, the goods need to be transported via a sea route, starting from port x, in country A and port y, in country B. 

Here, the seller has the liability to pay for warehouse services, loading from the place of origin, inland transportation, custom, and terminal charges and loading the goods in the vessel. After the loading, freight charges, insurance, loading and unloading, transportation, customs clearance, import duties, and taxes shall be borne by the buyer. 

In a simpler form, from the warehouse to the vessel loading on port x, the responsibility is on the seller and after that all the responsibility is on the buyer. 

In the case of B. K. Wadeyar v M/S Daulatram Rameshwarlal , the respondent firm claimed sales tax exemption under Article 286(1)(b) of the Indian Constitution in respect of sales made by them, on the ground that sales were made on FOB basis. According to that FOB they continued to be the owners till those cross the customs barriers and entered the export stream. The court exempted the respondents from payment of tax under Article 286(1) on the ground that the goods remained the seller’s property till those had been brought and loaded on board the ship.

In yet another case, Jiangsu Trigiant Technology Co. v Space Telelink Limited, the petitioner is a supplier of feeder cables and the respondent approached the petitioner with an offer to purchase the goods on a credit of 60 days from the bill of lading. The respondent placed three orders after that and the petitioner contended that they have sold, supplied and delivered the goods to the respondent accordingly. However, only one of the shipments got clearance at the destination port. Due to some internal issues, other shipments did not get clearance. The respondent conveyed via an email that they will pay the due amount, however, they did not do so and because of that petitioner sent a legal notice under Section 433 and 434 of the Companies Act, 2013. In response, the respondents said that they will pay the amount after the delivery of the other two shipments. The court mentioned that, “in case of FOB contracts, the goods are delivered free onboard the ship. Once the seller has placed the goods on board, the responsibility of the seller ceases and the delivery of the goods to the buyer is complete. The goods from that stage onwards are at the risk of the buyer.

Who will pay the freight in case of FOB origin?

Before going any further we need to understand two terms. 

  1. FOB Origin; and
  2. FOB destination.

FOB origin means the buyer will take ownership of goods once the goods are shipped in the vessel. After that, all the liability of goods are transferred to the buyer.

FOB destination, on the other hand, means that the seller will transport the goods to a destination port provided by the buyer and the ownership of goods is transferred to the buyer on that destination port. 

In the given example, the seller is loading the vessel on port x and his job is done. The ownership is transferred to the buyer. This is called ‘FOB origin’. However, if the arrangement was such that the seller needs to transport the goods to port y then it would be called as “FOB destination”.  

Thus, in case of ‘FOB origin’ the freight is paid by the buyer and in the case of ‘FOB destination, the freight needs to be paid by the seller.

FOB in Ocean Marine insurance

During transportation what if the goods are lost or damaged? In such cases, the marine insurance policies help you recover the damages incurred. 

Marine Insurance is a type of insurance policy that provides coverage against any damage/loss caused to cargo vessels, ships, terminals, etc. in which the goods are transported from one point of origin to another.

Types of Marine Insurance

  1. Marine cargo insurance: it is insurance that covers the damage caused to the cargo in the course of transportation.
  2. Liability insurance: this type of insurance protects the ship in case of a crash, collision, and other such things that is not foreseeable by the policyholder.
  3. Hull Insurance: this insurance policy provides insurance to furniture and other stuff on the vessel against any accident.
  4. Freight insurance: it insures the policyholder in case freight is lost.

Difference between FOB and CIF

Under Cost, Insurance, and freight, the cost of insurance and freight needs to be borne by the seller. CIF contract terms mention the extent of liability of the seller towards the shipment and from where the liability of the buyer comes into picture. In this type of contract, the seller delivers the goods, makes arrangements for the clearance for export, gets the goods loaded on the vessel and also pays for the freight and insurance. And the buyer is responsible for the transportation, costs, and risk from the port of destination. 

Generally, this type of contract is entered into by a seller who has direct control or ownership of a vessel. The seller’s responsibility includes purchasing export license for the product, Covering the cost and contracts of moving or carrying the goods, insurance to protect the value of the order, providing inspections of products, covering the cost of any damage or destruction to the goods. This sounds similar to ‘FOB destination’, however, there is a difference between the two.

The main difference between the two is the claimant of the insurance. In case of FOB destination, the cost of insurance is borne by the seller and in case the goods are damaged in the course of transportation, the seller himself can claim the insurance. While in case of CIF, even if the cost of insurance is borne by the seller, it can be claimed by the buyer.

 Problems with FOB

  1. It creates confusion for contractual stakeholders in the event of a dispute. Such disputes are prone to confusion when the parties misunderstand the nature of the Incoterms FOB and related contracts such as contract of sale, contracts of carriage, and letter of credit.
  2. If you are a new buyer- especially with international shipping, FOB might not be the option best suited for you. FOB places a lot of responsibility on the buyer, as they need to comprehend the complexity involved with an international shipment.
  3. FOB is most often problematic when a freight claim needs to be registered because this is the point when both buyers and sellers often discover that written terms of sale override FOB terms.
  4. Another problem with FOB contracts arises when the term FCA should have been used instead because goods are containerized or using more than sea or inland waterway transportation. In these situations, FOB, strictly speaking, does not apply to the contract and cannot be used.

Important clauses for the FOB contract

Here is a list of important clauses that you don’t want to miss while drafting your FOB contract.

  1. Term and Termination: this clause will mention the term of your contract, the commencement date. The clause may also mention the reasons and methods for early termination of the agreement. 
  2. Quality and quantity of the goods: mention the agreed-upon terms for the quality of the goods also how much quantity the buyer is purchasing.
  3. Pricing: Price can be predetermined by the parties and shall be clearly mentioned in the agreement to avoid further discrepancies.
  4. Shipment schedule: this clause should mention whose responsibility it is to book the shipment. The schedule as to when the shipment will reach the port for the loading, when will it leave the port, when will it reach the destination port; all such details shall be mentioned in this clause. 
  5. Force majeure: this clause is one of the most important clauses for any agreement. This will define the situations that are unforeseeable by both parties. And in case any damage happens to the vessel or goods in the course of transportation because of any of those situations then what will be the course of action for both parties.
  6. Indemnification: there are instances when one of the parties fails to perform their duties and obligations and due to which the other party suffers losses. In such a situation, this clause can help decide who is liable to make amends to loss of the other party and to what extent losses are covered.
  7. Dispute resolution: the parties may agree to resolve any future dispute by ways other than court proceedings. This clause will cover other such ways through which parties can resolve these disputes.
  8. Governing laws: this is also a very important clause while drafting any international contract or agreement because this clause will decide the law that will be applicable to the transaction in place.

Apart from these, general clauses of amendments, assignments, confidentiality, etc. should be complied with without fail.

Conclusion

The main objective of this article is to make you familiar with the terms FOB. Now, here is a quick summary.

  • Indian import and export business is increasing and for that, there is a need to understand international trade. Because of this reason, it is important to understand the terms given by the international chamber of commerce.
  • FOB is one such inconvenience. It defines the liability of the buyer and the seller and where the ownership is transferred from the seller to the buyer.
  • Also, we understood the two terms, i.e., FOB origin and FOB destination.
  • Ocean marine insurance is also important while dealing with international trade. And one should know the types of insurances are provided to the policyholder.
  • There are similarities and differences between several different terms and we understood the difference between FOB and CIF.
  • One needs to understand the terms of FOB very clearly. In case of ambiguity, one should seek clarification from the other party or seek appropriate counsel. Otherwise, one can face many problematic situations in the future.
  • Also, make sure that you have included all the important clauses in your agreement before signing and finalizing.

While doing international trade it is important to know and understand the terms of the contract. Because of the lack of understanding, it becomes very difficult to enter into a contract. It might be harmful to you and your business as well. Thus, make sure you understand everything written in the contract before signing it.


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Top Bollywood legal thriller movies from the 21st century

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This article is written by Yash Kapadia. This article enlists the best Bollywood legal thrillers you can watch of the 21st century. 

Introduction

Jumping from what the top Hollywood legal thrillers had for us, we now dive into knowing some of the best homegrown Indian legal thrillers to have been made in the 21st Century. 

The 21st century has evidently been a period where nations like India have moved forward towards realising the various legal rights one has and the same are put on the big screen through movies to educate more people of their pre-existing rights as Indian citizens. 

The sensitive topics of rape, act of god, false rape claims, discrimination faced on the basis of religion, race, caste, sex, place of birth and many other rights were depicted through a foray of films in the last 20 years. Moreover, these topics were presented on the big screen by brilliant method actors and even superstars who held us gripping to our seats while watching each one of them. 

Through this article, a string of the top legal courtroom dramas and thrillers are listed with a brief on them to make our readers’ choice easier on which one to watch on your day off or a weekend. 

Aitraaz (2004)

This Bollywood movie is one of the most gripping courtroom dramas to date. Aitraaz is based on the concept of how false claims of rape and sexual harassment were used by a woman to frame an innocent man. Aitraaz depicts through a brilliant story how the antagonist, Priyanka Chopra misused the very law made to protect women to frame a man (Akshay Kumar) who was innocent. The accused is further defended by his own wife (Kareena Kapoor) of the charges levied against him. Was his wife successful in defending the charges against can be known only after watching this movie displaying excellent direction, dialogues and screenplay.  

Through this movie, we learn what are the repercussions a man as well as the woman has to face when he is faced with allegations of rape i.e. Section 375 of Indian Penal Code and what is the fate of a woman when she is guilty of false claims of rape, one of them being Section 182 of Indian Penal Code. 

This movie is a must-watch for all fans of Priyanka Chopra all over the world. It is widely regarded as one of her best negative performances to date even though it was released way back in 2004. For the ones, who would have already watched Aitraaz, the movie “Section 3751” released in 2019 is a similar one with an extra-ordinary fictional story about a false rape claim by an artist of the hindi film industry.

Pink (2016)

This courtroom drama was released back in 2016 lead by the most distinguished actor of Bollywood Mr. Amitabh Bachchan. With Mr. Bachchan on-screen comes intensity, heaviness and moments of tension for viewers. 

Pink tells us the story of how three women were harassed by three men and how one of them injured a man by breaking a bottle on his face as self defence. This movie showcases how with the use of political power the men were able to discourage the women from filing any complaint and even after filing one how the police do not lend their full support after knowing one of the accused is the son of a politician. The entry of Mr. Bachchan is shown when he watches one of the women running in tension in a garden and decides to represent them as he is a senior celebrated lawyer. The entire movie has an abundant screen time of the courtroom drama between both the counsels arguing for their clients. The accused mens’ lawyer presents a turn of events as per their convenience by burying various facts and evidence. However, Mr. Bachchan’s entire case is based on the strong foundation of what “consent” really means in context of the law. His monologue of “No means No” is sure to give viewers goosebumps. Mr. Bachchan reveals chilling opinions of how women are considered to be not stereotypical if they come home late or wear short clothes.

Regardless of being an Amitabh Bachchan fan, if there is one courtroom drama recommended to be watched, it would be Pink. 

Rustom (2016)

Rustom is a legal thriller based on the real-life story of the celebrated naval officer K.M. Nanavati who had charges of murder of one businessman Mr. Prem Ahuja levied against him. 

Rustom is played by Mr. Akshay Kumar who has dived deep into the character of Rustom and has shown exemplary acting skills by portraying the role of a naval officer. This movie is filled with courtroom drama when Rustom is arrested for the murder of a businessman and he decides to defend himself of his actions in the case against the legendary lawyer Ram Jethmalani’s first high profile case2. This movie too is based on how one makes use of self defence in order to protect oneself which is more particularly stated in Section 97 of the Indian Penal Code. 

Whether Rustom was successful in defending himself builds up with revelations of bitter secrets in the rest of the film. 

This film in all probability would be one of the best courtroom trials to be showcased in Bollywood. A not-to-be-missed film for legal thriller fans.  

Badla (2019)

Badla is the remake of a legal suspense thriller Spanish film, The Invisible Guest3 which marks the second collaboration of the trio of Director Sujoy Ghosh and actors Amitabh Bachchan and Tapsee Pannu. 

Badla revolves around the life of a woman entrepreneur played by Tapsee Pannu who has a perfect life and family until she is arrested for the murder of her secret lover. Her business lawyer then hires a defence attorney (Mr. Bachchan) to defend and acquit her of all the charges. Mr. Bachchan one fine evening comes to Tapsee’s place and they have a long conversation about the turn of events that led to the murder of her secret lover. There have been instances in the movie where different scenarios have been shown as per Mr. Bachchan’s point of view as well as what Tapsee speaks. What is intriguing is how evidence had been tampered with in various scenarios by Tapsee in order to get away with the crime she had committed or was supposed to have committed. As per Section 204 Indian Penal Code, evidence tampering is an offence punishable with up to two years of imprisonment and a fine. 

Badla is a film that keeps you guessing right until the end till the real suspense is revealed which is going to make plunge out of your seats. All in all, this movie is a mixture of thrill, agony, guesswork and suspense. A must-watch just like their earlier collaboration, Pink. 

Article 15 (2019)

Article 15 is based on the fundamental right of every citizen of India which prohibits any sort of discrimination on grounds of religion, race, caste, sex or place of birth. This movie displays an unfiltered version of how the less fortunate, backward, poor people in villages are discriminated against on the basis of their caste. This movie depicts how fundamental rights are violated in villages and nobody is even aware of it until one has access to such information probably by the means of such movies shown to a large audience. In fact, this movie is based on multiple true-life events4. 

The movie is led by Ayushmann Khurrana who plays a police officer who has been transferred to a small remote village in India. On his arrival, his first case comes up as three Dalit girls who are missing for a few days. However, after a few days, the two girls are found to be hanging from a tree and it is told to the police that it was a case of honour killings in India as both the girls were lesbians and such an act is a disgrace for their family name. It is pertinent to mention that there are no laws or reforms. On learning of various events, it is concluded that the two girls were gang-raped by one wealthy politician’s son and one police officer and then brutally murdered. However, despite pressure from superior officers to drop the case, the character played by Ayushmann was hellbent on performing his duty and abiding by the law to find the third girl who was still missing. By the end of the movie, the third girl is found hiding inside a pipe displaying the fear in her of being punished by the superior castes as well as her parents. The entire plot revolves around how a truthful police officer faces the gambit of political power to provide justice to the parents of the girls murdered. 

Article 15 showcases the ugly side of varied discriminations faced by the economically backward castes in India who mostly reside in remote villages which people living in metro cities have no idea about. This movie is quite the eye-opener of the atrocities faced by Indian citizens whose very basic fundamental rights are being violated. 

Azhar (2016)

Azhar is a movie based on the controversial life of India’s ex-captain Mohammed Azharuddin. His life ranged from cricket to an extra-marital affair with a Bollywood actress and to end it all he received a lifetime ban from the Cricket Board for match fixing. The film begins with the Indian cricketer played by Emraan Hashmi who successfully scores a century in his 99th professional test match but is very soon faced with allegations of fixing a match as his name was attached with a bookie named M.K. Sharma also known to be called Shaun who was based in London. The powerful Indian Cricket Board after such grave allegations announced that they had taken a decision to ban Azhar for life. The movie revolves around how Azhar decides to challenge the ban in the court of law with the help of friend Reddy who is a qualified lawyer and decides to embark on this journey with him. 

In the winter years of his career, Azhar, who was extremely famous for sporting a flouting larger-than-life lifestyle, came into the eyes of match-fixers and bookies. The movie showcases how he was approached by a London based bookie M.K Sharma, who sailed under the false colours of being a diamond merchant who later offered him Rs. 1 Crore to play a game as instructed by them in a match against Sri Lanka, which was accepted by Azhar with bad grace.

On the other side of his life’s dimension, he also has an extramarital affair with a Bollywood actress and makes it public due to which his then-wife files for a divorce. After the controversial match-fixing scandal, Azhar then faced nationwide criticism and a prosecutor played by Lara Dutta builds up a strong case against him with the aid of certain sting operations done by one of the cricket team’s members on several other cricketers. Heavy reliance is placed by the prosecutor on a report of the inquiry commission set up by the Cricket Board and she then discreetly meets the bookie M. K. Sharma to gather more evidence. The prosecutor even goes to the extent of approaching Azhar’s ex-wife to testify against him based on certain evidence but she refuses. However, Azhar and his lawyer struggled to find any proof of innocence as none of his ex-teammates were ready to help him out by involving themselves in such a controversy.

This movie has a great ending and would answer the question about the authenticity of the report of the inquiry commission as well as the question of whether Azhar was really liable for match-fixing and deserved a lifetime ban. 

This movie is for those cricket enthusiasts who want to learn about the darker side of it which was in play decades before the IPL match and spot-fixing scandal took place. It further displays how intolerant the cricket board is towards match-fixing or betting of any sort which still does have any stringent laws in place for such acts. Only certain sections of the Indian Penal Code which are ready with the word “dishonesty” can ascertain similar cases like that of Azhar. 

Conclusion

India is home to a plethora of legal controversies that could be put up on the screen. However, when directors and writers decide to tell us the stories of the atrocities and pain faced by the downtrodden like Article 15, it is more appealing to the audience. 

Turning controversies into movies is now a new sector for producers in Bollywood to make money. We would not be perplexed if there is an announcement that very soon there would be movies linked to Sushant Singh Rajput’s mysterious death, Raj Kundra’s recent porn/ erotic videos controversy or even Salman Khan’s case. 

All in all, for viewers and fans of Bollywood, legal thrillers have always been a treat to watch because especially due to sensitive issues like rape, caste discrimination movies released in the 21st century display the course of law adopted and the power of our judiciary. This statement can be correlated if one watches any of the movies mentioned in this article. 

References


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Case study on data breach scandal of Byjus

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Image source: https://blog.ipleaders.in/story-byjus-one-startups-journey-becoming-ed-tech-giant/

This article has been written by Vishal Raghavan pursuing the Diploma in Business Laws for In-House Counsels from LawSikho.

Data breach issues in recent times. How are tech companies a target?

The next warfare will not be on Sea, Air or Land but on CyberSpace. There may not be Generals preparing War Strategies or Tanks rolling on the ground to hit targets nor gung-ho Infantry soldiers on the ground who will be facing direct enemy automatic fire. 

Instead, there will be a group of nerds wearing cool sweatshirts and pants with a diet coke and some Nachos on their desk along with their Arsenal of Computers and Electrical devices. Today a computer with an internet connection is enough to disrupt a country’s economy.

In this era of mammoth corporations and industries, many companies are targeted by hackers as they are the Gold Mine of Data. The definition of Data includes everything that belongs to an individual or a Company like an Email ID, Address, Personal Documents, Name, Age, Biometrics, Chat logs etc. Hackers target them as they are sitting ducks, due to loopholes in servers or weak cyber security. Once such data is in the wrong hands it can create havoc like using it for illicit activities.

Companies like Apple, Amazon, Google, Microsoft and other elite companies of Silicon Valley all have a history of getting hacked

In this article, we shall look into one of India’s biggest Unicorn EdTech firm ‘Byju’s’. How their servers have been breached not once but twice all during this Coronavirus-induced pandemic from 2020-2021. How Data in the wrong hands could disrupt a country’s economy or individuals’ privacy. What are the parties involved in the Cloud-Based Environment? Who will be liable for the breach? Personal Protection Bill 2019 of India. Definitions of Data under Indian and European laws context.  Measures to be taken by companies to prevent and mitigate. Legal recourse in case of a breach and creating Cyber Security awareness among netizens.

Its raining unicorns in India

It’s been more than one year and the pandemic has made us stick to our homes as bunkers for soldiers during the war. But this virus has not affected the startup ecosystem in India, they are still emerging big with bright ideas and solutions to offer. Since 2020 there is a rise and shift in Indian Unicorns. The phrases ‘It’s raining unicorns for India’ and ‘India’s unicorn party is just getting started’ were everywhere in the media. This year 2021 the Indian Startup Ecosystem has seen 14 startups entering the elite class of Unicorn which includes Cred, Groww, Meesho, Pharmeasy to name a few. Byjus an Edtech platform that provides online coaching for students from Grade 5 to various coveted competitive exams like IAS, JEE & NEET, upgraded into Unicorn class in 2020 third after Paytm and OYO Rooms. But in 2021 along with an increase in counts of Unicorns, Byjus directly jumped from third to first biggest unicorn in India. 

There is almost no Indian who doesn’t know Byjus, as they have a huge marketing budget. Their TV commercials aired with Film Industry’s seasoned actors like Shah Rukh Khan, Mohan Lal and Sports Tycoon like Virat Kohli. Indian cricket teams one of the many sponsors include Byjus and their Blue Jersey is engraved on the front with their initials.

Byju’s today being mammoth and second to none in the Education industry has recently made a huge controversy as their servers faced a Data Breach of its customers in June 2021. Let us discuss the series of data breach incidents that happened with Byjus within a span of 1 Year, From 2020-2021?

Byjus faced its first data breach in November 2020 followed by June 2021 breach.

November 2020 data breach

Data of White Hat Junior newly acquired by Byjus was breached. An independent cyber security researcher who doesn’t want to be named reported to the company that a server containing users Email, Name, Address, Age, Phone Number, Chat logs, user’s parent’s data and staff chats were lying unsecured and open to anyone to see, copy or download.

Company’s collect user’s data. This data is used to verify for registration and authentication on their portal. Data not only includes these but also Voice/Chat logs between students/parents and teachers, users most watched lesson/videos etc. Such data are stored either on the company’s server or a third-party cloud service provider which manages the data of the company.

June 2021 data breach

This breach was a slap to the face of this Unicorn, as this is the second consecutive breach faced by Byjus. The previous lesson wasn’t sufficient and ignored the cyber security lessons which they teach to their students in their courses. 

This breach was reported in June which was open at least since 14th June 2021 as reported by Mr. Anurag Sen a Cyber Security researcher by profession. Byjus depends on Bengaluru-based startup ‘Salesken.ai’ which is an AI Customer Relationship Management services provider, for its Customer Service Management. Now as CRM is one of the prominent factors which moves the business used in business development. They collect customers data like voice and chat logs and use it to track customers’ behavior and use it to cater to them services and offers. The data include everything from Email, Address, Age, chats, mobile number etc. Most of the data was of Whitehat Junior, newly acquired by Byjus.

Now one of the servers was unprotected without any security encryption or password and open to anyone to copy the data. More than 20 thousand user’s data was breached. Salesken claims that there wasn’t any breach as it was an open-source and staging server meaning, not the actual one where real data is stored.

Byjus which gives lessons on the Data breaches and the country’s new PDP bill have themselves been breached not once but twice. If an EdTech giant can face this then any simpleton is vulnerable to this. This is not the only company but there are many Big ones like Apple, Amazon, Google and Microsoft who had the same plight.

What can be done with data?

In the Cyber Space, there is a saying ‘Data is the new oil’. Today with data under one’s fingertips is more terrifying than the Monopoly of Oil. Human’s daily shores and uses involve some or the other electronic device. From Mobile journaling to photography, shopping to repair services, we have technology and applications for everything. 

Websites and applications like Facebook, Zomato, BigBasket, Dominos all are free to download and use. Now social media websites like Facebook, Gmail to name a few are totally free to users. At least that’s what they claim. In Legal Language there is the Latin term ‘Quid Pro Quo’ meaning ‘Favor for a Favor’, this applies in the cyberspace too where social media companies claim to be free but they take our data in return. We must have seen while installing an application on our phones that its mandatory to grant permission to allow them access our phone to use the services. 

We grant permission by accepting the Terms and Conditions of the application without even reading it. If you check what all permissions are granted, we can see that they have access to our SMS, Calls, Photos, System, Camera, and Microphone. 

By just using it we have agreed and granted access to our phone’s complete data. Today only an email and phone number are enough to hack into one’s social media account. With such data, the hacker can use it to clone ATM cards, use phone numbers and Email Ids to commit financial frauds or other illicit activities. With a company’s compromised Data, the hacker can use the contact details to contact users and harass them, use it for fraudulent purposes or rival companies using it.

Parties involved in a cloud-based environment?

Byjus and many other startups depend on cloud-based services to store and manage data viz- Amazon AWS, IBM cloud, Microsoft Azure Cloud Storage etc. Byju’s uses Amazon AWS or Amazon Web Service as their cloud services partner.

Now there are three parties involved-

  • End Customer or User of the service

  • Data Owner– services/products provider like Byjus, Flipkart, Pepperfry

  • Data Holder– third-party cloud service provider, like Amazon AWS, IBM Cloud, Microsoft Azure Cloud Storage

Now Salesken comes under ‘Data Holder’ although they are not a cloud services provider but an AI-based CRM or Sales software.

Who is liable for the breach? 

In cloud environment breaches, under US law the Data Owner or the Commercial Services provider are liable even if it’s a mistake of the Data Holder or Cloud service provider. Because Data Holder is a vendor and they are bound by Standard Vendor Agreement Contracts where consequential damages (i.e. Indirect or Special Damages or Loss of Product or Loss of Profit or Revenue) are excluded and only cap direct damages.

In the Indian context, currently, there are no specific provisions for ‘Data’. There are no provisions specifically for Data Breach in the IT Act 2000 except Section 43 A but since this act was enacted in 2000 the scope and use of this act is very limited. But a separate law i.e., ‘PDP Personal Data Protection Bill’ is on the table for framing. This will be a separate law specifically for Data Protection. 

PDP Bill 2019

This bill was introduced in Lok Sabha on December 11th, 2019 by Mr. Ravi Shankar Prasad, Minister of Electronics and Information Technology. This bill amends the Information Technology Act 2000 to delete the provision of compensation payable by Companies for failure to protect personal data.

It categorizes Data into various subgroups like Biometric Data, Financial Data, Sensitive Personal Data, Genetic Data, Health Data and accordingly, penalizes defaulters. Rights of Data Principal i.e. Natural Person whom the personal data relates includes i) Obtain confirmation from the fiduciary on whether their personal data has been processed ii) seek correction of inaccurate, incomplete, or out-of-date personal data and others.

Data can be processed by a fiduciary only if consent is provided by individuals. Exceptions being by the State for providing services, legal or medical proceedings.

Right to privacy case

It was Justice Puttaswamy’s landmark judgement in August 2017 (Justice K.S Puttaswamy & another Vs. Union of India) which recognized the Right to Privacy as a fundamental right under Article 21- Right to Life and Personal Liberty in the Indian Constitution.

When an individual’s data is breached his privacy is also breached. As data contains an individual’s personal information which can be used as leverage. This judgement protects victims of data breach and gives rights to citizens. 

Definitions of DATA under legal instruments

Under Indian context, the Information Technology or IT act 2000Section 2(1)(o) “data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and maybe in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;

The European Union’s GDPR or General Data Protection Regulations Article 4.1 defines– “personal data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

From the above two definitions of Indian and European context, we can confer that data includes any information of a Natural Person or individuals Name, Sex, Age, Address, Occupation, Email ID, Phone Number, Employment Status, Chats, Pictures, Call logs. This definition is not exhaustive.

What measures should be taken by companies?

Besides allocating a huge budget for marketing and branding today its very pertinent that a good budget is allocated for Cyber Security. The new IT Rules mandate to appoint a Nodal Officer in every company who has expertise in Cyber Security and Cyber Threat Intelligence. A third-party Cyber Security firm should be hired to periodically audit the company’s Cyber Space. If the data is compromised then the users must be notified immediately.

What is the legal recourse that can be taken?

  • The first thing He/She must do is change the password of Email IDs and other accounts associated with the breached portal. 
  • Enable 2FA or 2 Factor Authentication or Multi-Factor Authentication. It’s double security to accounts where along with the conventional password an OTP is required to be entered. 
  • If spam messages, calls, or emails are received then ‘Report and Block’ them.
  • If still someone is harassing by asking to send money, pictures or offering a Job after paying some money or offers which are ‘Too good to be True’ then immediately contact the Local Police Station and lodge a complaint.

The 2FA or Multi-Factor Authentication is the best Anti Hack Tool as suggested by Mr. Rakshit Tandon, who is one of the best Cyber Security Experts in India now supporting the Indian Police and Defense agencies by educating, advising, consulting and working with them.

Conclusion

From Military systems to corporations like Apple and Google to Simpleton internet users, all are vulnerable to Data Breach and Hacking. Military, Companies and Simpletons all of them use the internet for their office work, school, training, and entertainment. Today it’s very easy to get hacked or data getting breached. From the above information, we have seen that if big companies like Byjus can have a Data breach then even a simpleton’s data can be compromised and how Cyber Security and Cyber awareness is very important to avert such situations. Hackers use small loopholes in the system and create a backdoor which ultimately compromises the whole company and the user.

References


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

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

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

 

 

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Omissions – proof and significance in criminal trials

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Criminal law

This article is written by Arya Mittal from Hidayatullah National Law University. The article deals with the significance of omissions in criminal trials and some landmark judgments on it.

Introduction

One might have often observed a twist in movies wherein a character significantly changes his stance and helps the other party win a suit. Or in real life as well, one might have experienced that a witness significantly changes his/her statement in a court proceeding. The question is – Whether such a statement is acceptable in a court of law? The answer is a clear no. Such a statement by a witness is disregarded and such evidence is not relied on in the case. The law surrounding omission has been discussed in the further sections of the article followed by the landmark judgments in this accord.

Omissions : An overview 

Significance of omission in a criminal trial

It is known that a crime is not against a particular individual but rather the whole society. Any statement as evidence by a witness can have a significant impact on the verdict of the case. In case the court relies on the evidence (which may be disregarded due to non-credibility), it might lead to the acquittal of the guilty, or an innocent might be proven guilty. This would have catastrophic effects on society and lead to chaos. Thus, it is important to check the credibility of the witness producing evidence since criminal wrongs are much more severe than civil wrongs.

Proving omissions in a criminal trial

Code of Criminal Procedure, 1973 is the procedural law on crimes in India. Explanation to Section 162(2) of CrPC deals with omission. It states that an omission to state a fact or circumstance to the police officer during the investigation which is significant and relevant in the context of the case may be treated as a contradiction. The word ‘may’ in the provision suggests that consideration of such omission as contradiction is a question of fact which shall be decided by the courts as held in the cases discussed further. 

This is read with Section 155(3) of the Indian Evidence Act, 1872 which states that the credit of a witness will be impeached if his prior statement is inconsistent with a later statement which creates a contradiction. 

The effect of the two provisions being read together leads us to the conclusion that if a statement was previously omitted by a witness during the investigation which he/she later states in the court and such statement has significance and relevance in the context of the case, then such statement shall be disregarded by the court since it affects the credibility of evidence and poses a doubt on its authenticity.

Landmark judgments dealing with the significance of omissions in a criminal trial 

Judgments by Supreme Court 

Tahsildar Singh v. State of U.P. 

Tahsildar Singh is the most prominent judgment in regards to omission and contradictions. All the subsequently discussed judgments have placed reliance on this case directly or indirectly. The Court has held that the statement of a witness made during the investigation should be in writing otherwise it will have no effect. Moreover, such a statement should not be used for any other purpose than contradicting him in the witness box. It emphasized Section 162 of CrPC read with Section 145 of the Indian Evidence Act. If the statement made before a police officer and a statement made in front of the court is inconsistent then it is considered to be a contradiction. It stated three illustrative situations where an omission can be considered a contradiction.

  1. When a recital is necessarily implied from recitals found in the statement – When X says he saw A robbing the house during police investigation but in court says he saw both A and B robbing the house. In the former statement, it implied that only A was the robber.
  2. A negative aspect of a positive recital in a statement – When X says the thief was a short man in front of the police officer but in court X says that thief was a tall man which implied that the thief was not a short man.
  3. When a statement before police and court cannot be true simultaneously – X said to the police officer that A ran towards the left whereas in the witness box he says A ran towards the right. Both statements cannot be true together.

Thus, if any of the three conditions are satisfied, then an omission can be treated as a contradiction.

State of U.P. v. Harban Sahai

In Harban Sahai, a Special Leave Petition was filed challenging the Allahabad High Court judgment which acquitted the four individuals accused of the charge of murder. One of the reasons given by the High Court was that the sample of bloodstain collected by the investigating officer was not forwarded to the lab for testing which vitiated the investigation. The Apex Court rejected this reasoning by holding that such a trivial omission cannot be considered for vitiating the investigation. Once again, the Court made its stance clear by holding that the omission needs to be significant enough to affect the credibility which was not true in the present case.

Gorle S. Naidu v. State of A.P.

In this case, the facts related to the murder of two individuals. In the FIR, the prosecution witness just mentioned that the assailants were followers of one of the appellants, but they did not name anyone. However, later in court, they stated the name of the assailants. The Court held that such omission was a vital omission. To find the names, dog squads were taken to different houses to find these assailants which the witness already knew. Thus, it was a vital omission that will be treated as a contradiction since it is significant and relevant in the context of the incident. 

Shashidhar Purandhar Hegde v. State of Karnataka

In this case, the appellant was accused of kidnapping a minor and demanding ransom from his relatives. The statements of the prosecution witnesses were disregarded by the Magistrate holding them to be contradictions since there were some minor discrepancies in the statements of certain witnesses. These discrepancies were immaterial and did not affect the credibility of the witnesses. The High Court held the ruling of the Magistrate to be incorrect and the same was reaffirmed by the Hon’ble Supreme Court. It held that minor discrepancies cannot be construed as contradictions if it does not affect the credibility of the evidence provided by a witness. In the present case, the omission was considered trivial in nature and therefore the appeal was rejected. The Court reiterated its previous ruling that what omission constitutes contradiction is a question of fact and it is the duty of the courts to measure its severity. 

Shri Gopal v. Subhash

In this case, the prosecution witnesses failed to allege exhortation by the accused which they later stated in the court. Such omission was held to be significant and relevant in the context of facts of the current case and thus, such omission was held to be a contradiction as per explanation to Section 162 (2) of CrPC.

State of Rajasthan v. Rajendra Singh 

This case relates to the charge of murder. Here, the prosecution witness stated that he went to the spot where the incident took place when he heard the shot of the gun and even tried to snatch away the gun from the accused. However, he failed to state anything as such in the report to the police officer. Similarly, another witness also made a material improvement in his statement by stating that he tried to save the victim whereas he failed to state so in the police report. These statements were held to be vital omissions and were contradictions. Their statement could not be considered as evidence since they made material improvements to make their evidence acceptable. 

Sunil Kumar Sambhudayal Gupta v. State of Maharashtra 

In this case, the Supreme Court relied on its multiple previous decisions to clarify what omissions will be treated as contradictions. It held that the court should consider the magnitude of such omissions to see if they significantly affect the trial or not. So, if an omission is trivial or insignificant improvements, then the evidence should not be rejected altogether. However, if such omission creates a serious doubt about its credibility and other witnesses also make improvements in their statements to make such omission acceptable, then such evidence should be disregarded since it will substantially affect the credibility of the evidence of the witness. In such cases, the evidence is bound to be disregarded and it cannot be held that the prosecution proved its case beyond a reasonable doubt. 

The court also stated that it is natural to have discrepancies in statements of a witness, no matter how truthful they are. These discrepancies can arise due to lack of observation, memory error due to lapse of time, mental state of witnesses, etc. However, material discrepancies cannot be normalized since they corrode the credibility of evidence, and hence, they should be disregarded.

Baldev Singh v. State of Punjab

Baldev Singh is comparatively a recent judgment of the Supreme Court. Here, the prosecution witness failed to mention the number and color of vehicles and the name and number of people who had come before the main incident. The Court held these facts to be immaterial as previously held by the High Court. It stated if the omission in the statement recorded under Section 161 of CrPC by the police officer is not significant and relevant in the context of the incident, then it will not be considered a contradiction to the evidence of the recorded witness. 

Judgments by High Courts

State of Madhya Pradesh v. Banshilal Behari

In the present case of Madhya Pradesh High Court, one of the witnesses told nearly nine inconsistent statements which he failed to tell in front of the police officer during the investigation. Citing the Treatise of Wigmore (2002) and Section 145 of Evidence Act, the court held that when it is natural to assert a fact but the person fails to do so, then such statement is asserted to be non-existent and such a statement is considered a contradiction and therefore, such evidence is not considered reliable.  

Raghunath Krishna Mujumale v. State of Maharashtra

Relying on the judgment of Tahsildar Singh, the Bombay High Court applied the test to see if any of the three conditions were fulfilled to satisfy that the omission amounted to contradiction. They were of the view that though certain omissions existed but they were trivial in nature and did not affect the credibility of the witnesses. It even emphasized verifying the materiality of the omission to see if it would constitute a contradiction. It was of the view that FIR is not a catalogue of all events and so everything could not be stated in it. However, if there is any material or significant event, then it should be revealed during the investigation.

Conclusion 

Analyzing the legal provisions and various judicial precedents has made it clear that that omission is one of the ways to shake the credit of a witness. Not all omissions form a contradiction. Only those omissions which are significant and relevant in the context of the case are contradictions. It is a question of fact decided upon by the courts. Many cases of the Supreme Court and High Courts have tried to analyze what omissions would be considered as contradictions. To sum up, the basic inference that can be drawn from the above-mentioned judgments is that the omission in the statement should not be so significant that it creates inconsistency between the statement in front of the police officer and the court. Moreover, the test in Tahsildar Singh can be applied to see if any of the three conditions are fulfilled which will make it a contradiction. These judgments have played a crucial role in clarifying the legal proposition relating to omissions since they can have significant effects on the verdict as well as on the parties in the case. 

References


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

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

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

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