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How to draft an effective international selling agreement for Amazon

By
Abanti Bose
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0

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

Introduction

If any person is thinking of expanding their business then international trade will probably be its prominent solution. People may think that carrying out trade in their land is quite safer and controllable but international trading will help them venture out of their comfort zone eventually making their business stronger, more successful, and more profitable. Trade is only applicable internationally where two or more countries are involved. There is a section on international trade law that incorporates customary law of evidence and procedure, customary commercial law, and general principles of international law which is known as the “Lex mercatoria”. For carrying out a smooth international trade, both the parties involved in the trade are required to mutually draft an international sales agreement in which they mutually negotiate and include clauses to remove any kind of confusion and reduce the chances of disputes between both parties. 

This article briefly discusses the concept of the international sales agreement from amazon’s point of view, key clauses that amazon must include to draft an effective international sales agreement, and lastly, provide a sample template of an international sales agreement for amazon.

What is an international sales agreement?

Before understanding what an international sales agreement is, it is very important to first have an idea about what exactly an agreement means. In simple words an agreement means where there is a promise with some sort of consideration, now another question might be tickling in your mind about the promise; so a promise means a proposal that has an acceptance. To collectively say a valid agreement is a legally binding arrangement where there is a proposal that is duly accepted with some sort of consideration.

Now moving on to the broader picture, what is an international sales agreement, in simple words, it is a mechanism in which international buyers and sellers willfully enter into a binding arrangement for an exchange of goods and services from different countries for some form of earnings. There are three essential components in an international sales agreement  such are:

1. The intent of both the parties

What is the intent of both the parties between a buyer and the seller, what are they trying to accomplish, and can that intent be understood from the content of the agreement and that is why identifying an intent is very essential?

2. The manner to achieve the proposal, acceptance, and consideration

It is quite simple as a proposal is a way to offer something for sale, for example, if there is a company in France that is a seller they will typically send a proposal to their client to purchase certain goods and services. This is a simple and basic meaning of a proposal. An acceptance can somewhat be called a purchase order which your client will send as an acceptance after you make a proposal to them and consideration is just a fancy term for an exchange of funds. The manner to achieve all these three components are very much important for executing a successful International transaction.

3. Methods for interpreting the agreement

It means that how the content of the contract is going to get interpreted, is it going to get interpreted by a code of law or through arbitration (as these two are preferably used by the companies). 

The parties who are occupied with the agreement are the purchaser and the seller and generally, these purchasers and dealers are organizations. For each gathering, The accompanying must be incorporated:

  • Name of the organization, full address, and ethnicity. 
  • Sort of the company: Public restricted organization, restricted risk organization, and so on 
  • Name and position of organization agent who consents to the arrangement. 
  • Expense ID number of the two players.

The two important governing entities of an international sales agreement which every party should be aware of before executing an international sales agreement or formulating any clause under it are:-

(i) ICC model for International Sales Contract, published in the year 1997.

(ii) U.N. Conventions on Contracts for the International Sales of Goods (UNCISG), published in the year 1998. 

What is amazon and why would it require an international selling agreement?

Amazon.com is an American worldwide technology organization that centers around internet business, distributed computing, computerized web-based, and man-made reasoning. It is one of the Big Five organizations in the U.S and it works practically everywhere. It is a tremendous Internet-based undertaking that sells books, music, motion pictures, housewares, hardware, toys, and numerous different merchandise, either straightforwardly or as the agent between other retailers and Amazon’s huge number of clients. Amazon has three central offices which improves them way more than their rivals, for example, huge information and data identified with their market and client, trend-setting innovation, and cost advantage. The other principle highlight that puts Amazon.com on another level is the multi-evened internet business procedure it utilizes. Amazon.com lets nearly anybody sell nearly anything utilizing its foundation. You can discover straight deals of products sold straight by Amazon, the membership program that allows anyone to post Amazon joins and acquire a commission on navigating deals. There’s currently a program that lets those partners (Amazon calls them “partners”) construct whole Web locales dependent on Amazon’s foundation. They can in a real sense make small-scale Amazon Web destinations assuming they need to, expanding on Amazon’s colossal data set of items and applications for their own motivations. 

Amazon has its superb means to turn into the Earth’s most client-driven organization where individuals can discover anything they need to purchase on the web and for that reason Amazon realizes their clients’ tastes and inclinations truly well. The keen and powerful procedure that amazon carries out is that it gathers a tremendous measure of information on each enrolled client during each visit to the Web webpage, Amazon guides clients toward items they may really be happy to find and purchase. As a huge number of clients visit amazon’s site, this technique assists Amazon with social events and a ton of data identified with their clients across various nations. This is one of the great reasons why amazon can perform fruitful business universally. Amazon has a trillion-dollar business that has extended everywhere. They render administrations and services to their clients living in various nations and completely different business deals around the world, for these reasons they need to execute international sales agreements to guarantee a smooth exchange and lessen the odds of questions between parties.

Key clauses that amazon must incorporate in order to draft an effective international sales agreement

Amazon is a billion-dollar international e-commerce company that solely dominates the e-commerce market and to carry out their international sales transaction they must draft their international sales agreement by incorporating key content and essential clauses such as:

1. Identifying the applicable law 

First and foremost Amazon needs to identify which country’s law is applicable because the International Sales Agreement is the engagement of buyer and seller from different countries so it is very important to identify whose law of the land is going to be applicable. For example, Amazon is in the United States and it is willing to enter into an International Sales Agreement with a company which is in India so it is very important for both the parties operating from different countries to negotiate and mutually decide whose law of the land is going to be applicable whether it’s Indian or the US laws. CISG is also executed to cover these circumstances. In the event that the agreement is quiet about the appropriate law, CISG naturally applies, and various laws can be applied by indicating them in the agreement. 

2. Dispute resolution clause

It is very indispensable for Amazon to incorporate a dispute resolution clause in their international sales agreement which portrays that assuming any questions emerge, by which mode it is to be addressed. Both Amazon and the other party mutually engaging in the agreement have an option to go for litigation and arbitration. Arbitration is a more appealing method of question goal as it is expedient and financially savvy when contrasted with the suit. Most arbitrations occur under the arbitration foundation that offers a pre-set-up set of rules as the applicable law to govern the procedure. The most widely recognized and experienced establishment is the ICC International Court of Arbitration. On the off chance that the gatherings settle on arbitration, they ought to determine the spot of arbitration and language preference, and assuming they decide on litigation, the public or city courts in which a claim must be documented ought to be reflected in the agreement. Drafting a clear and explicit dispute resolution clause will drastically reduce the chances of a dispute between both parties mutually entering into the agreement.

3. Description of the product

This is one of the important clauses which Amazon needs to be really specific of, i.e, the description of the product. We talk about consistency across documentation or the paper drill but the description of the product is very essential that you start to use in a quotation or in an agreement, purchase order, invoices, packing list, etc. it should be compact, easily understandable, and identifiable in terms of what that product is and that is why a description of the product needs to be very clear, crisp and understandable because assuming the products are not depicted unequivocally enough that fulfill the purchaser, those merchandises are unsuitable for the purchaser’s business purposes.

4. Price of the goods

This clause is probably the principal element for Amazon in the international sales agreement as it includes the currency of sale as both parties are engaging in transactions from different countries. This clause will certainly specify whether Amazon is going to do the whole transaction in dollars or it will allow the other party’s currency as the dominant currency during the transaction. This clause can be mutually negotiated by both the parties engaged in the agreement, but 9.9/10 times it’s the seller who gets the benefit to do the transaction in their own currency as they are the party who will export the product.  

5. Mode and terms of the payment

It is a highly negotiable clause which Amazon is required to do with the other party for addressing things like whether the party will do an advance payment, whether they will pay the full amount or amount on an installment basis, what is the assigned term within which the party is required to pay the total amount, what is the mode of the payment whether it through cash, cheque or bank transfer to the account or there is guaranteed letter of credit payable to the account decided by the seller. Whether there will be a Bill of exchange or direct debit to the account decided by the buyer.

6. Term of the delivery

Both Amazon and the other party entering into this agreement should mutually decide the time and place of delivery as clearly as possible. Both the parties can refer to the Incoterms Rules published by the International Chamber of Commerce which provides referable points widely addressed throughout the world. Both the parties should mutually decide the agreed place and the transport agent where the goods shall be delivered and for the betterment of the transaction, they can include a point that the goods must get delivered at least before 24 hours from the deadline established in the agreement. Another point can also be included in the delivery clause that the decided delivery period can be modified in case of force majeure or unforeseen circumstances, just to increase flexibility and reduce the chance of dispute between the parties.

7. Inspection of goods

Amazon and the other party mutually entering into the agreement should include an inspection clause in their international sales agreement. This clause should mention that there will be a pre-shipment inspection of the products. The products ought to be investigated at the two first by the vendor and afterward by the purchaser. Sometimes the review of the products is a piece of the public authority’s prerequisite, so before drafting the agreement, the necessities of the public authority of every country have likewise been mulled over.

8. Document handling

Lastly, both the parties should remember a provision in the international sales agreement i.e, requiring the significant rundown of records and particularly exporters ought to be fastidious in the administration of fare reports. The most significant is the point at which the installment is made as a letter of credit. This clause is sometimes ignored by the parties but it possesses great importance in the international sales agreement.

Sample international sales agreement for Amazon 

International sales agreement

This International Sales Agreement (hereinafter referred as ‘Agreement’) is made at Seattle, Washington on the 17th day of July 2021.

                                                        BY AND BETWEEN 

AMAZON.COM, INC whose registered office is at  410 Terry Ave. North, Seattle, WA, 98109-5210 USA and EIN number is 911646860, Central Index Key (CIK) as 1018724 represented by __________________________________ (Name and Surname, Position) (hereinafter referred to as “the Seller”),

                                                                    AND

FLIPKART INDIA PRIVATE LIMITED whose registered office is at Buildings Alyssa, Begonia & Clover, Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village Bengaluru Bangalore KA 560103, INDIA and CIN number is U51909KA2011PTC060489 represented by  SANTOSH KUMAR BETHALA, DIN Number-078041G4 (hereinafter referred to as “the Buyer”).

WHEREAS the Seller is an American multinational technology company that merely focuses on e-commerce business and the buyer is an Indian e-commerce company, headquartered in Bangalore and Karnataka in India. 

AND WHEREAS the Seller has agreed to sell the Buyer the assigned number of Sporting goods, Shoes, and Handbags (hereinafter referred to as “Product”).

AND WHEREAS both the parties have declared their interest and mutually agreed in the sale and purchase of the Product under this present Agreement. 

Now it is hereby mutually agreed by and between the parties hereto as follows: 

1) Products

Under this Agreement, the Seller has accepted the proposal of the buyer and agreed to provide the 10,000 pieces of Volleyball and Basketball, 15,000 pairs of Puma shoes, and 12,000 pieces of Levis Handbags as per the orders and requirements of the Buyer. The detailed list of the Products is attached as Annexure-1 along with this present Agreement. 

2) Price

(i) That both the Seller and the Buyer have mutually agreed to do all the business transactions under this Agreement in United States Dollar ($). The total price of the products which the buyer has to pay to the Seller for the exchange of the Products has amounted to $.1,730,116.00 (One Million Seven Hundred Thirty Thousand one Hundred Sixteen Dollars only).

(ii) That both the Seller and the Buyer have mutually decided to renegotiate the agreed price as per the significant changes in the International market or by a political, social, or economic condition in the country of the Buyer or the Seller of the Product.

3) Delivery clause

(i) That the Seller shall deliver the Product to ___________________(Mention the place, it may be a warehouse, airport or port etc.) ________________(City and Country) under Condition ____________________________________ (Mention any rules according to the Incoterm Rules or both the Seller and the Buyer have mutually formulated any rules related to the delivery of the Product).

(ii) That the Product shall be delivered at the permitted place, and to the transport agent assigned by the Buyer, at least 24 hours before the deadline established in this Agreement.

(iii) That if the Buyer fails to take charge of the Product on its arrival, then also the seller shall be entitled to demand the fulfillment of the agreement and payment of the decided price.

4) Packaging clause

That the Seller hereby declares that they will deliver the quality Product in a good and well-packaged manner. The Products will be carefully packaged and packaged with their specific brands and travel conditions to be used.

5) Means of payment

(i) That the Buyer hereby declares that they will pay the total decided price which appears in this present Agreement. Payment of the said Price shall be made by Bank transfer to the Account and Bank Branch designated and decided by the seller.

(ii) The details of the Bank and Bank Branch given by the seller are as follows:

  • Name of the Bank: _______________________
  • Branch:  _____________________________________
  • Full Branch Address: ________________________________
  • Account Number: _____________________________
  • IFSC Code: _______________________________________
  • Account Holder’s Name: ___________________________
  • Account Holder’s Residential Address: _________________________________

6) Date of payment

That both the Seller and the Buyer have mutually decided that the Buyer will pay 40% of the decided price on the date of execution of this Agreement i.e. 17th July 2021 and the rest 60% will be paid by the Buyer within 30 days from the date of the delivery of the Products.

7) Inspection of goods

That both the Seller and the Buyer have mutually agreed that they will carry out a pre-shipment inspection of the Products. The products ought to be investigated first by the Seller and afterward by the Buyer. Both the parties will mutually decide the time, place, and date for investigation of the Products before shipping them on the date mutually decided by the Parties.

8) Laws applicable

That both the Seller and the Buyer have mutually agreed that during the whole business transaction the law of the United States is going to be applicable to both the parties under this Agreement. Other than the laws of the United States any relevant law, rule, or statute will also be followed by both the parties which have any type of enforceability over International Trade or International Sales Agreement.

9) Dispute resolution clause

(i) That if there is a breach of any clause mentioned in the Agreement by one Party then the Aggrieved Party shall send a notice to the Defaulting Party stating to resolve the breach within the period of 60 days from the date of receiving of the notice.

(ii) That during the span of those 60 days both the Parties can collectively decide and try to resolve the dispute without involving any third party.

(iii) That if the dispute doesn’t get resolved within the span of those 30 days then both the Parties can opt for Arbitration without the interference of the Competent Courts but shall be allowed to approach the relevant courts in case the dispute elevates or is further not possible through arbitration (the Arbitrator can be mutually appointed by both the Parties or can form a bench by appointed Arbitrator from both countries or can approach ICC International Court of Arbitration). In the case of Arbitration, both parties have to mutually determine the spot of arbitration and language preference.

(iv) That the matter shall be presented before the Honorable Court as per the Jurisdiction if the matter doesn’t get resolved through Arbitration.

(v) That as this Agreement is signed and executed in Washington, so the provisions of this Agreement shall be governed by and construed in accordance with the Laws of the United States which is subjected to the jurisdiction of the Honourable Courts of Washington.

(vi) That both the Seller and the Buyer have mutually decided that the cost which will be incurred during the process of Dispute Resolution will be distributed among both the Parties and both the Parties under this Agreement will be responsible to pay the allotted cost incurred during the process of Dispute Resolution. 

10) Document handling

That both the Seller and the Buyer hereby declare that they will both have a close look at handling the relevant documents related to the transactions, delivery, payments, product details, etc. and every document related to this trade should be recorded with due care by both the parties.

IN WITNESSETH WHEREOF the Parties hereto have herein unto set and subscribed their Respective Hands on the Day and Year mentioned hereinabove.

THE SELLER,                                                                THE BUYER,

(Through Authorized Representative)                         (Through Authorized Representative)

 [Name]                                                                              [Name]

[Address Line 1]                                                                 [Address Line 1]

[Address Line 2]                                                                 [Address Line 2]

[City, State, Pin Code]                                                        [City, State, Pin Code]

Conclusion

International Trade has gradually become one of the desired sources for increasing revenue, cash-flow management, export financing, and enhancing reputation. International Trade has gotten extremely huge in this period as numerous nations trade labor and products from one another. There are numerous shows and deals identified with international business agreements, particularly worldwide deal Agreements which are applied in worldwide exchange and are viewed as valuable for the parties involved in the agreement. The international sales agreement is a key tool for carrying out an International Trade as it puts the parties involved under some sort of legal obligation which is necessary for the smooth functioning of the International Trade.

Therefore, in this article, we tried to clarify the concept of the international sales agreement from Amazon’s point of view by providing a sample template of the international sales agreement for better understanding. Hope this article has provided you with some sort of knowledge and insights related to the international sales agreement and provided a basic idea on how to draft an effective international sales agreement. 

References

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The bar of self advertisement for lawyers : an ethical dilemma

By
Diva Rai
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0
Image source - https://bit.ly/3xLyMBa

This article is written by Harshit Tyagi, a BA LLB student of Symbiosis Law School, Nagpur.

Abstract

“Good advertising does not just circulate information. It penetrates the public mind with desires and belief.” – Leo Burnett

Advertisement is something which we can see nowadays in every field everywhere from movie theatres to stadiums to small merchant shops to even state transport which includes trains, buses, metro everywhere wherever we see advertisement and marketing is everywhere. In fact it a useful medium to spread knowledge and awareness about something which may in turn benefit the larger proportions of the society. The initiatives such as Jago Grahak Jago, let the buyer beware a popular term used in Law of Torts also called as Caveat Emptor also defines that the buyer can’t exempt from the liability or responsibility of not checking up the product before purchasing it and he can’t say after checking up the product and buying that the seller has been fraudulently selling the product.

The article discusses the very important topic or the ethical dilemma faced by today’s lawyers or advocates being disbarred from soliciting in any form in India. The word ethical dilemma we used is because in the professionalism the work ethics play a major role in defining the boundaries of the particular profession. In the article we discussed about what does ethics say and mean in the context of professionalism further we have tried looking into what does self- advertisement means and what is the stand of the Bar Council of India on self-advertisement by advocates or lawyers and why the advocates are disbarred from self-advertisement in India.

Introduction

Marketing is something which is everywhere around the world. In 2019 only the revenue generated from advertisement sector only amounted to 594 million US dollars. The United States only invested around 243 billion US dollars in advertising in 2019. Talking about India the total spending in advertising sector only amounted to Rs 82,795 crore in 2019 and it is ever increasing. Advertising is something which not only attracts consumers or clients to the sellers or service providers but also it plays a great role in making aware the mere population of the country and protect consumers from fraudulent practices of the sellers. India has its constitution adopted from Britain and when we talk about United Kingdom; the advertisement by lawyers is legal subjected to some terms and conditions.

The article is trying to analyze the dilemma between ethics and advertisement in India. Advocates are barred from advertising themselves in India and in this paper we tried to discuss the test of ethicalness with the professionalism and if advertisement is really needed by the lawyers of the country.

CHAPTER 1: ETHICS IN THE LEGAL WORLD

Various professional ethics for lawyers in India

The basic ideas behind evolvement of ethics come from the principles of Dharma and Swadharma from the early manuscripts of the Indian literature or politics. These ideas were the main test of ethical thinking in the past; an individual had to follow the dharma in accordance with the society dharma is nothing but a set of principles determing a person’s societal standing and his respect in the society. Swadharma has been described as one’s lawful behavior based on one’s capacity; one’s own radical thinking and act accordingly. In Swadharma, a person was expected to act lawfully or according to his own radical thinking to act lawfully in the society. It essentializes an understanding of one’s own talents, abilities, and weaknesses.

The Bhagavad Gita emphasizes the concept of Swadharma. Ethics, morals, righteousness, and goodness have all been used to derive on to the word dharma. The law of ethics is known as Dharma. It controls a human’s mental, physical and emotional well-being and a man was expected to live in accordance with the dharma or the righteous principles. Gradually the concept of Dharma expanded and it converted itself into ethics. Ethics is word used in the context of moral reasoning of a person. It revolves around the phrase “How and Why” how a person should act and what is the reasoning behind such an act of his.

It is the fear of sanctions which decide an individual’s actions in a society. As a result, the strict principles of morality and ethics were followed by contemporary laws. the dilemma is this that who shall be deciding the ethical norms of a particular act? The norm of ethics is a necessary component of every professional. Ethics leads to individual situations that involve deciding what is right and what is wrong based on the conscience of an individual. Professional ethics is concerned with the standards and moral conduct that govern the profession and its members.

More specifically, professional ethics examines issues, problems, and the social responsibility of the profession itself and individual practitioners in the light of philosophical and, in some contexts, religious principles among which are duty and obligation. Professional ethics is like laws of profession where every person in a particular profession is expected to follow the norms set by professional ethics. The most basic examples of professional are such as a doctor is not expected to act negligently while dealing with a patient also, he is not expected to lie about a patient’s illness to his loved ones or him. There is also a term legal ethics. Looking at the definition it says Legal ethics is the minimum standards of appropriate conduct within the legal profession. It is the behavioral norms and morals which govern judges and lawyers. It involves duties that the members owe one another, their clients, and the courts.

Respect of client confidences, candor toward the tribunal, truthfulness in statements to others, and professional independence are some of the defining features of legal ethics. Legal ethics can also refer to the study or observance of those duties or the written regulations governing those duties.

Legal ethics is also related to the concept of professional ethics, according to legal ethics advocates or attorneys are expected to act in the manner which is prescribed by the particular state’s bar. Legal profession is a profession of fiduciary relationship between the client and an advocate similar to doctor and patient relationship. The profession’s meaning can be summed up in three words: organization of its members for the execution of their functions, for the profession’s reputation, such academic and ethical principles must be maintained.

The work of professional ethics in a profession is to uphold the integrity and for the proper working of the profession so that it confers to the norms of the society. If professional ethics has not been there, there would have been complete state of chaos in the society and no restrictions on any profession would have been there on a person pursuing a profession. For example, when we look at the profession of doctors if professional ethics would not have been present then doctors would have acted according to their whims and fancies which would in turn harm the patient or his health. The value of ethics in the legal profession is to uphold the profession’s honor and integrity, as well as friendly relationships with the public.

Considering the Indian Bar Council Code, it is an epitome of a formalized collection of professional ethics for those considering to pursue their career as a lawyer and a lawyer is expected to follow the code of conduct such as a Lawyers Duty towards Court. When we look at the professional ethics for an advocate, we see that lawyers or attorneys are expected to work in accordance with law as they themselves are the saviors of law. An advocate is expected to follow the due process of law and to follow the guidelines issued by the particular bar of any state.

Another example is that attorneys are expected to follow the guidelines of the court such as not to interrupt the judge or not to use any word which might harm the reputation of the hon’ble judge. Common professional ethics for attorneys include keeping their phone on silent and not to create any disturbance in between court proceedings. An advocate’s duty towards his client which includes duties such as when admitted, they are unable to withdraw from acts or engagements for a fine reason. Before the start of proceedings or trials, he must make full disclosure about his relationship with the parties or any potential conflict of interests.

As we know that a relation between a client and an advocate is called as fiduciary relationship or relationship of trust in which client gives fees and an advocate is expected to help the client in the process of justice serving. The professional ethics for advocates says that an advocate is expected to give his/her one hundred percent to provide justice to the needy client and not to keep him aware on the progress in his case. To keep all legitimate promises made to the opposing party. These are some of the professional ethics in the legal world which an advocate ought to follow or his actions would be considered punishable or unprofessional. It is important for any profession to follow some norms or ethics so as keep it functioning according to the changing morals of the society. As a result, Professional Ethics is taught as an important topic in every law school curriculum that young legal brains are aware of the essentials of such a career by following the principles and ethics.

What do we understand by self advertisement by lawyers in India?

Law is a traditional discipline aiming at providing public services. Ever since the initial days of this profession, it has been considered as a defender and protector of the law. The primary goal of such a profession’s activities is to benefit society, and by this due process the advocates earn money through fees paid by the clients. Self-advertisement as the term itself says it means advertising for self for the promotion of self. Self-advertisement for lawyers is banned in India since the British rule. The Bar Council of India is the governing authority of overseeing and controlling the advancement and regulation of legal services in India, as well as the operations of advocates of pan India and covers subjects and law firms present in the country. Advocates in India are restricted or barred from advertising themselves in any manner neither offline nor online.

As per the Advocates act 1961 Rule number 36 which was formulated in 2008 it mentions “An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organization or with any particular cause or matter or that he specializes in any particular type of worker or that he has been a Judge or an Advocate General”.

As the rule clearly mentions that advocates or layers are completely disbarred from advertising in any which ways their practice. Every year thousands of lawyers or advocates every step into the profession of law by taking a license from Bar Council of India despite of such a huge competition among the advocates, they are not allowed to advertise themselves. Lawyers are not allowed to do something that might fade away a prudent client’s decision and this rule particularly states that the legal profession is distinct from all others, and that anyone soliciting himself or for attracting employment in the legal profession is barred by this provision.

Advocates or law firms that continue advertising by circulating letters or speeches organize moot court competitions, offer certificate courses, or use by publishing visiting cards, for example, may face sanctions according to the Bar Council of India. Often advocates send their clerks in the courts or the premises of the court to solicit their work or print templates and appoint a person to share them with the people around the premises of a particular court’s jurisdiction, it is all prohibited by the Bar Council of India and involving in any of these practices will attract sanctions or consequences as per the Bar Council of India.

Why is self-advertising prohibited for Indian Advocates?

The rudimentary concept of rule number 36 is that the legal profession is an honorable one that should not be made un pure or interrupted by the advertising because often we see advertisements misleading and hence illusionary concept which may harm the prestige of such an honorable profession. Justice Krishna Iyer once said that the legal professions and advertisements have no connection and a profession like law does not permit advertisement to maintain its prestige. A plausible contention is that advertisement safeguards the interests of the country’s illiteracy rates and prevents any undue events that could happen in a profession. Self- Advertisement by lawyers is conferred upon in Indian courts. In Re: Mr. A An Advocate vs Unknown, the Supreme Court ruled that an advocate who solicits briefs is unworthy of the practice. In certain cases, the judiciary has upheld the legal profession’s nobility and prestige, stating that it is not merchantable and that commercialization of the profession is forbidden.

In the landmark judgment of Bar council of India v. A.K. Balaji and Ors the Hon’ble court held that soliciting directly or indirectly is a serious breach of misconduct by an advocate. In Supreme court case of Bar council of Maharashtra vs. M.V. Dhabolkar and Ors, Justice Krishna Iyer said that Law is not a trade, briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarize the legal profession. In the case of C.D. Sekkizhar v. Secretary, Bar Council, Madras & Others it was held that advocacy commercials were forbidden to discourage feelings of envy and were unworthy of the noble profession, according to the study. In RN Sharma Advocate Vs State of Haryana the court determined that the legal profession is a respected endeavor, not a trade or a corporation, and that lawyers, as court officers, should aim to achieve justice for their clients within constitutionally prescribed limits.

Granting advocates permission to solicit is generally looked as unjustified on the grounds that it would not only add to possible public misconceptions, but it would also “harm the reputation” of an honorable profession because when someone advertise the whole aim is to promote himself with the claims or maybe sometimes false claims of assisting in providing justice or illusionary results, considering a vast number of India’s uneducated population, making them vulnerable to false advertising hence, in an honorable profession like lawyer it is considered as an unethical practice or undignified practice.

Further, it is also believed that law firms or lawyers or advocates for that matter should not indulge in any of the advertisement practices and if they resort to advertisement of themselves that would not only make the profession less honorable but also it may deter the interests of potential clients and hence, will make them more vulnerable to the victim of false practices. In the judgment of a three-judge bench of the Supreme Court in the case of V.B. Joshi v. Union of India, Rule 36 was eventually revised by a Resolution passed by the BCI in 2008. Advocates were finally allowed to post information on websites such as their names, Post Qualification Experience, and practice areas in order to “promote lawyers and expose subtle elements of their profession” as a result of the amendment.

The conflict of class also plays a major role in determining the advertisement regulations in India as a vast majority of lawyers or advocates are either earning less or not that financially strong especially when we talk about a fresher law graduate’s earnings, they are minimal because of the lack of experience it’s lack of reach or lack of enough opportunities while at the same time the bigger law firms which are already established and gained a firm grip over the legal market. If advocates and law firms are being allowed to solicit their work then the gap between the big law firms and hustling advocates will increase that will lead to inconsistencies.

CHAPTER 2: NEED FOR ADVERTISING FOR ADVOCATES

Fair opportunity for clients and advocates

India is famous for its outstanding cases in the courts and the number of cases which are pending in the courts are increasing year by year and the courts are overburdened done by the number of cases which are filed each year each month and each day having a detrimental effect on the country’s already overburdened judicial system. India now has almost 4 crore pending cases spanning the Supreme Court, various high courts and the numerous district and subordinate courts, according to written replies submitted by the Ministry of Law and Justice in Parliament Due to lack of awareness, clients face difficulty in making an informed and prudent decision from a competitive market because knowledge about the particular types of service is unavailable to them. Furthermore, restricting the firm’s potential capacity to earn more through guiding the prospective clients will limit the firm’s reach. While the clients or persons willing to file a suit or who want justice are vulnerable to it due to the lack of knowledge particularly lack of knowledgeable lawyers of specific fields, often people are confused where to go to whom they visit.

Clients in India are restricted to domestic legal services providers they don’t know about the international market and hence restricting the very exposure of clients to the justice. As a result, it is extremely harmful because they are unable to use or explore any other person due to a lack of options. Many a time people or clients are confused with the areas of practice of law, they feel it confusing which case where to go or of which area of law that particular case is related with such as criminal law, civil law, family law.

This ultimately results in the exploitation of clients and delaying in the justice. These are some of the problems which are faced by the consumers or clients in the country at the same time lawyers too face different types of problems because of lack of reach. There are almost 1.3 million lawyers in the country right now and the number clearly indicates the rampant amount of competition which is going on in the legal market. Advocates face many difficulties because of lack of reach they can’t get enough clients and hence can’t earn enough. By promoting themselves lawyers could have gained more knowledge and thus increasing the revenue generation of the firm. And thus, if advertisement was permissible, it could have helped clients to approach better lawyers to seek justice and in the same way it could have helped lawyers too in gaining more reach and thus increasing zeal and a fair chance of opportunity among the both.

Globalization of the legal profession

It is a globalization age, and in the field of law, advanced globalization has had a significant impact on the services rendered by an attorney. It could have been much beneficial for an advocate to get an international exposure via connecting through advertisement. With increased support and engagement of nations, as well as greater access to domestic markets, globalization ushered in a revolution in foreign exchange of ideas. We can already see various developments in the field of law by some of the international exposure which we have gained over the past few years. One can easily understand the concept of international exposure in legal market when we talk about India we see the evolvement of intellectual property law, competition law, corporate law, corporate taxes law and many more provisions which have been introduced in the country with the ousting of international exposure. Earlier these provisions were unknown. It is undebatable that advertisement not only helps the budding advocates to grow faster but also would have given them an international exposure to various legal markets of the globe. Although, legal firms are embracing globalization by integrating with larger competitors, making acquisitions, and forming strategic partnerships.

The online boom, legal process transformation, and emerging technology solutions are all behind this economic uptick. As law firms seek to grow, the economic process has the potential to reshape the legal industry’s landscape in the coming years. Opening of the doors of advertisement for Indian firms and advocates will make the country’s economic position good and would also donate in the reputation of the country. As Despite of having 1.2 million lawyers, Lloyd Pearson, a London-based Litigation Directories Consultant, said that due to such advertisement constraints, the audience sees very little about many Indian firms or lawyers having said this clearly indicates as to where India’s legal system is lacking to pick up pace with the globe. Advertising law firms would create an international market and thus would result in increasing competition in the Indian economy and also would result in increasing reach of the lawyers along with foreign knowledge of law.

Impact on revenue generation

When we look at the statistics, India was ranked as the third largest advertisement market in the world in terms of media spending, with over 700 billion Indian rupees. The most important aspect for an advocate or a lawyer to build his/her contacts with the world to grow and excel in the law world but because of this restriction the advocates in India can’t make their rapport with not only international market but even with the country’s lawyers too. This is a table below showing the proportion spent by the law firms of different countries in advertisement.

If India is to be the 3rd largest market of advertisementxx then think of the revenue generation in the legal sector of India if it was permissible. Increasing revenues not only benefit to law firms or lawyers but also to the justice serving system as well, as its quality would be improved and thus it would result in increasing of morale of law firms and lawyers.

Speedy redress of dispute

After looking at the pending cases in the country it is imperative for us to look at the constitutional provisions. The article 21 of the constitution of India says that protection of life and personal liberty no person shall be deprived of his life or personal liberty except according to procedure established by law.

The Supreme Court of India has proclaimed the right to a speedy trial to be a part of the right to life or personal liberty. This radical understanding of article 21 is intended to alleviate the pain and suffering, cost, and burden that a person facing criminal charges must endure, which, when combined with delay, can hinder the defendant’s ability to defend himself effectively. As a result, the Supreme Court ruled that under Article 21, the right to a speedy trial is a fair practice. People in India used to resolve disputes through mediation before the establishment of courts.

Mediation was performed by an individual with a higher standing and respect among the other members of the community, and this mediation was referred to as “Panchayats” in the past. These were led by a village headman, also known as “sarpanch,” who was deemed to be an impartial person and were aided by other people of the same character. The panchayat’s verdict was binding on everyone, and the panchayat’s core conviction was that it was in the best interests of all parties in a conflict to have a smooth justice process. To relieve the stress of the courts it is an essential thing to introduce different methods of speedy trials despite of some methods already existing to ensure that everybody can get justice on time without knocking the doors of different pillars of justice. Speedy trial can be achieved through proper advertisement and through the contribution of all judicial experts throughout the country.

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Minimum marriage age limit : is it sufficient or should it be changed

By
Diva Rai
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0

This article is written by Vivek Maurya from ICFAI Law University, Dehradun. In this article, the author has discussed the minimum marriage age limit and whether it is sufficient or should it be changed.

Introduction 

The minimum age of marriage, particularly for women, has been a hostile issue. The law has evolved in the face of much resistance from religious and social conservatives. Presently, the law recommends that the minimum age of marriage is 21 years and 18 years for men and women respectively, supported by the amend­ment of the Child Marriage Restraint Act, 1929 out of 1978. The equivalent is suggested by the Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006.

On the 74th independence day of India, Prime Minister Narendra Modi has said that the government will have to take into consideration the minimum age of marriage for girls, and on a proposal from a committee set up by the Union Ministry of Women and Child Development. The explanation is linked to the development of the legal age of marriage for girls. As a result, the girls will no longer be a victim of malnutrition/undernutrition, and you’re going to get married at an appropriate age.

The current marriage age limit in India : law through ages 

The law endorses the minimum age for marriage, which prohibits the practice of child marriage, and it forestalls the ill-treatment of children. Personal laws of various religions that deal with marriage have their norms reflecting custom. The Hindu Marriage Act, 1955, set the time of marriage to 18 for women and 21 years for men. However, in Islam, the marriage is resolved when the women reach the age of puberty, for example, at the age of 15. The marriage of a minor who has reached the age of puberty, are considered to be major for marriage.

Quite apart from the laws, the Prohibition of Child Marriage Act, 2006 (PCMA), and the Child Marriage Restraint Act, 1929, which define the current marriage age and the punishment for the crime.

The Hindu Marriage Act, 1955

The Act comprises the significant marriage law in India as it applies to most citizens who are Hindus. The Act sets out specific conditions for the solemnization of legitimate marriage among Hindus. Clause (iii) of Section 5 necessitates that the groom ought to have finished 21 years old and the bride, the age of 18 years at the time of marriage. At first, the ages endorsed for the bride and the groom were 15 years and 18 years respectively. Before 1978, marriage beneath the recommended ages could be solemnized with the assent of the guardians. With the Amendment Act, this provision became infructuous as the age for marriage was raised and guardianship wasn’t needed in the event of an individual, who has completed 18 years. Thus, the clause was erased by the Amendment Act. 

Except for a significant marriage that is celebrated in accordance with its obligations as provided in Section 5 of the HMA, the Act contemplates void marriage that is void ab initio and voidable marriage, which can be declared null and void at the occurrence of the bothered party. A marriage solemnized in contravention of Section 5, is either void or voidable

The law contemplates legal consequences if the child marriage is performed. The penalty can be up to a 2 year Strict Imprisonment (SI) or by a fine of up to Rs.1,00,000/- or a combination of both. 

The Child Marriage Restraint Act, 1929

In 1929, the Child Marriage Restraint Act, stated that the minimum age of marriage for men and women was 18 and 16 respectively. The law, known as the Sarda Act, after its sponsor Harbilas Sarda), a member of the jury and the members of the Arya Samaj, was finally renamed in 1978 in order to subscribe for the 18 and 21 years of age for marriage for men and women separately. The Child Marriage Restraint Act, 1929, was established in the statute books as a high point at a constant pressure of social reform groups and law-abiding people, who fought against the harmful effects of child marriage. 

The Act punished a grown-up male for marrying a minor young lady. If the grown-up groom was more than 21 years of age, he was obligated to be punished with up to 3 months SI with fine and in case, he was between 18 – 21 years of age, punishment of a maximum of 15 days SI or a fine up to Rs.1,000/- or both can be imposed on him. No similar provision, however, existed for a female adult who married a minor boy, possibly because of such incidents being rare.

However, this act failed because of numerous reasons. These incorporated the wretched number of fruitful prosecution and cops requiring a warrant or a request from the officer to capture guilty parties. The offense was additionally seldom revealed since the actual Act restricted grievances after the principal year of marriage.

The Prohibition of Child Marriage Act, 2006

Amid the quiet disarrays of the Hindu Marriage Act, 1955, and the innocuous arrangements of The Child Marriage Restraint Act, 1929, the Indian culture saw a developing interest for making the law on child marriage more successful with tough disciplines to annihilate or adequately forestall the abhorrent act of child marriage. 

The Prohibition of Child Marriage Act, 2006 (PCMA, 2006) was advised on 10 January 2007 to beat the limitations of the previous enactments in successfully managing the issue of child marriage in India and to set up a complete component. It came into power on 1 November 2007. 

The salient feature of this legislation is as follows:

  1. The Act made the child marriage voidable at the option of the contracting party to the marriage, who was a child. However, since a girl is supposed to attain majority at the age of 18 years and a boy at 21 years, the woman can file a petition till she becomes 20 years of age.
  2. The Act likewise takes into consideration upkeep and home for the women till her remarriage from the male contracting party or his folks. 
  3. Every one of the disciplines thought about under the Act is very upgraded when contrasted with the 1929 Act. The punishment for a male adult marrying a girl child has been enhanced to 2 years Rigorous Imprisonment or with a fine of up to one lakh rupees or both.
  4. Comparative disciplines are recommended for any individual who performs, leads, coordinates, or abets any child marriage. A similar discipline is additionally recommended for any individual who gets the child marriage solemnized or advances the solemnization of such marriage or grants it to be solemnized or carelessly neglects to forestall such marriage and the guardians of such minor gathering to the marriage will also be held liable.
  5. However, no woman can be punished under the Act which may not be a welcome step under all circumstances.
  6. All offenses under the Act have been made cognizable and non-bailable.
  7. The Act further takes into consideration orders to preclude child marriage including ex-parte orders and makes any child marriage solemnized in contravention of the injunction order void. 
  8. Perhaps the most important change introduced by the Act is the provision that declares child marriage to be null and void under certain circumstances involving kidnapping, abduction, or trafficking of the minor.

Age and maturity 

The need for the change 

The girls shouldn’t be pushed into marriage, early marriage should not be made mandatory for them to gain economic and social status. There is a need for a change in the minimum age for marriage, as underage marriage leads to many problems in her life. These include the following: 

Education

Women have cultural strain to get married early and have children. Domestic duties take control of the lives of women, and they’re not looking for a degree at an advanced level, they are limited and they can not cope with their duties and schooling as in the case of pregnant women. 

Economic self-sufficiency

Early marriage denies them the right to education and to the profession, opportunities, and more along the lines of economic freedom. A lady needs to have monetary autonomy, which helps in making it possible for her to raise the height of the decisions about her life and her needs. With these advances, sexual orientation, and balance, and to ensure an equal partnership in all the circles of life. Restricting financial autonomy for women drives them into a pattern of poverty and limits educational opportunities for their children as well.

Health

Studies show that women who are married before 18 years of age are most likely to deal with an unwanted pregnancy and an increased risk of complications during pregnancy, such as preterm infants and long-term labor. They are also not protected against sexually transmitted diseases as they are not in a position to make safer sex. All this is because they lack proper education as they are married at a young age. This denies them legitimate medical care and antenatal consideration, which in fact is the reason for the higher mortality rate. 

Domestic violence

Getting married early builds the danger of abusive behavior at home. As stated by the International Council of Research on Women (ICRW), women who are less educated, married, between the ages of 15 and 19 years of age are required to have been subjected to physical abuse in the home, in contrast to the more well-educated women. One possible consequence of this could be the case that there is an anomaly between the pair, composed of young women and older men. 

Mental Health

Early marriages are to have a significant impact on the mental health of these women. They are likely to suffer from post-traumatic stress disorder (PTSD) and depression. The institution of marriage, and the responsibilities can have an overwhelming impact on the mental health of an underage woman. 

Poverty

Girls from poor families are more likely to be married at a very young age. It is because her family can’t afford to buy their own expenses, such as education, training, and other resources, so they prefer to get her married to give them a better quality of life. There is a lack of financial self-sufficiency, and the expectations of profit will decrease significantly after the wedding. 

Change will initiate development of the society and its people

Increasing the legal age for the marriage of women has tremendous advantages on friendly and monetary fronts like bringing down Maternal Mortality Ratio (MMR) as well as the progress of nourishment levels, monetary front freedoms will likewise be opened up for ladies to seek higher education and professions and become financially empowered and numerous different advantages which include:

Socio-economic Fronts

Increasing the legal age for the marriage of women has enormous benefits on social and economic fronts including:

  1. Lowering the Maternal Mortality Ratio (MMR).
  2. Improvement of nutrition levels.
  3. On the financial front, opportunities will be opened up for women to pursue higher education and careers and become financially empowered, thus resulting in a more egalitarian society.

More female labour force participation

Increasing the marriage age will push the mean marriage age higher and will prompt more females doing graduation and consequently improving the female workforce support proportion. The level of females doing graduation will increment by at any rate 5-7 rate focuses from the current degree of 9.8%.

The benefit for both 

Both men and women will gain economically and socially by marrying when they are more than the legal age, but added that the urge of the women is much higher as they always get a higher payoff by becoming financially empowered to make decisions.

Conclusion 

At present, there are many laws and regulations in place in the community, which define the minimum age for marriage but because of the weakness in implementation of the practice of child marriage, it is still prevalant in our community. The government has also been involved in the revision of the minimum age of marriage. 

The constitution of the task group is an opportunity to define the action to end early and forced marriages, which is a serious impediment to the health and well-being of girls and women. Allowing women to complete their education and give them the opportunity to become financially independent. This will make it possible for them to fulfill their dreams and live a life of dignity and agency, in order to maintain their sexual and reproductive rights of their selection in planning, number, and space the births of their children. 

It would be great to see the recommendations of the task force, which looks beyond the age of marriage and focuses on durable change, not by legislation alone but by bringing attitudinal changes to end the practice of early marriage.

References

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Implementation of the Beijing Rules, 1985 in the Juvenile Justice (Care and Protection) Act, 2015

By
Diva Rai
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Image source - https://bit.ly/3xL7j2s

This article is written by Kishita Gupta from the Unitedworld School of Law, Karnavati University, Gandhinagar. This article analyzes the extent of success in the implementation of the Beijing Rules in the JJ Act 2015.

Introduction 

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, commonly known as the “Beijing Rules” were adopted by United Nations General Assembly resolution 40/33 of 29 November 1985. The resolution invited and requested the member states for implementing these rules in their respective juvenile justice legislation. The Juvenile Justice Act of 1986 was the first nationally enacted law governing the care and protection of children. While it kept the scheme and main characteristics of The Children Act of 1960, it did it differently. Later on, an amended Act was introduced in 2000 and 2006. 

However, the aftermath of the Nirbhaya rape case led to the introduction of the amended Juvenile Justice (Care and Protection) Act 2015 (hereinafter referred to as the JJ Act) to make broad provisions for children in conflict with law and children in need of care and protection, while considering the standards outlined in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), and other related international instruments.

Overview of Beijing Rules

All juvenile offenders, regardless of colour, gender, language, religion, or caste, will be subject to the same Minimum Rules. The goal of criminal justice is to promote proper child-rearing and defence, as well as to ensure that he is treated fairly not only in terms of the nature of the crime or the seriousness of the alleged crime but also in terms of the crime’s context or its situation. This often promotes the child’s best interests and rejection of institutionalization as alternatives. As a result, deprivation of liberty can only be used as a last resort, and for as little time as possible.

These Rules emphasize the need for a healthy social program for juveniles by assuring that such a program will help to reduce juvenile crime and delinquency, among other things. Juvenile justice is considered to be an important part of juvenile social justice. Rule commands would automatically differentiate how such laws are implemented from how they are enforced in other states, taking into account current requirements in the Member States. Furthermore, it is necessary to consistently improve juvenile justice without falling behind in the evolution of comprehensive juvenile social policies in general, as well as taking into account the necessity for continuing employee resource expansion.

Fundamental Principles of juvenile justice

The fundamental Principles governing the Beijing Rules 1985 are as follows:

  1. The well-being of the Juvenile and his/her family.
  2. A juvenile must get suitable conditions to lead a meaningful life in a community that is free of crime and delinquency.
  3. Positive measures to be taken to give full access to resources to the juvenile to promote his well-being by dealing with the case in a humanely, fairly and effective manner.
  4. Juvenile justice must be an integral part of a country’s national development.
  5. The member states should ensure the implementation of these rules concerning the economic, social, and cultural conditions prevailing in their nations.
  6. Juvenile justice services shall be systematically developed and coordinated to improve and sustain the competence of personnel involved in the services, including their methods, approaches, and attitudes.

Aim of juvenile justice

These Rules were implemented as a means to strengthen the juvenile justice system across the whole world. The aim and objective of this initiative have been highlighted in Rule 5.

  • One of the main objectives is the well-being of the juvenile, emotionally, mentally, and physically. This has been a primary focus of legal systems in which underage offenders are dealt with by family courts or by administrative authorities, but such well-being of a juvenile must also be emphasized in a criminal court model, to ensure that the penalties awarded for their offences are not merely punitive.
  • The second objective behind the implementation of these rules is “the principle of proportionality”. This concept has acted as a mechanism to curb any punitive sanctions. The response and reformative measure awarded to juvenile offenders should be based on not just the gravity of the offence committed but also the personal circumstances of the offender. Personal factors such as the family situation, social status, the injury caused due to the offence should give effect to the proportionality of the reaction.

Similarly, as has been observed in some juvenile justice systems, responses aimed at ensuring the welfare of the young offender may go beyond necessary and so infringe on the young individual’s fundamental rights. The proportionality of the response to the circumstances of both the perpetrator and the offence, including the victim, should be protected in this case as well. 

In essence, rule 5 requires no less than a fair response in every given incidence of juvenile misbehaviour or criminality. The combined issues in the rule may serve to drive development in both directions: new and innovative sorts of reactions are just as desirable as safeguards against an overabundance of formal social control over adolescents.

The essence of Beijing Rules in JJ Act, 2015

Now let’s briefly see some of the provisions of the JJ Act 2015 that are inspired by the Beijing Rules, 1985.

General principles 

Section 3 of the JJ Act 2015 includes all of the general principles that were present in the JJ Act 2000, plus two new ones: the Principle of Diversion and the Principles of Natural Justice. The majority of these concepts apply to both law-breaking minors and children in need of care and protection. In this section, we will be discussing the role played by the Beijing Rules in formulating these principles in the juvenile justice administration in India.

Presumption of Innocence

As per Section 3(i) of the JJ Act 2015, up until the age of eighteen, any child is deemed innocent of any mala fide or criminal intent. This finds its origin from Article 11 of the Universal Declaration of Human Rights and in Article 14(2) of the International Covenant on Civil and Political Rights which was adopted in Rule 7(1) of the Beijing Rules which guarantees the safeguard of all the basic procedural rights which includes the right to be presumed innocent until proven guilty.  

In Vinod Solanki v. Union of India [2008], the Supreme Court held that presumption of innocence is a human right as contained in the International Covenant of Child Rights.

Under the JJ Act, 2015, the presumption of innocence extends not only to the child’s innocence but also to the fact that they had no “mala fide” or “criminal intent” even if the JJB finds that he or she committed the violation. 

Prof. Ved Kumari in her book The Juvenile Justice (Care and Protection of Children) Act 2015- Critical Analysis, sees an “apparent conflict” between this idea and the JJ Act 2015, which “allows for the selective transfer of children to be treated as adults if they are accused of committing a severe crime.” “This principle is couched in the form of irrebuttable presumption provided in the Evidence Act bearing the words ‘shall presume,’” she continues.

Principle of Dignity and Worth

The principle that all human beings must be treated with dignity and worth is mentioned in Section 3(ii) of the JJ Act 2015. Although the Beijing Rules don’t directly mention this principle there are various instances where the emphasis has been laid on the well-being of the juvenile. The purpose of training and therapy for juveniles in institutions is to provide them with care, protection, education, and vocational skills to help them become socially constructive and useful parts of society as laid down in Rule 29.

 In Francis Coralie Mullin vs. Administrator, Union Territory of Delhi (1981), the Supreme Court believed that various other factors such as enough nourishment, clothing, and shelter, as well as facilities for reading, writing, and expressing oneself in a variety of ways, as well as freedom of movement and mixing and mingling with other people, is included under the right to life and personal liberty under Article 21 of the Constitution of India.

Principle of Participation

The Beijing rule mentions a competent authority to adjudicate in Rule 14. The formation of the Juvenile Justice Board(JJB) has enshrined this in the JJ Act. Part two of the rule states that the proceeding must be held in a child-friendly setting and the child’s best interests. Section 3(iii) of the JJ Act 2015, the participation principle focuses on the same thing.

During the investigation before the JJB and during the child’s stay in a child care institution, an atmosphere must be developed that allows a child to engage in the juvenile justice system. A child may reveal self-incriminating information while engaging in the investigation; however, the JJB is prevented from evaluating this information under Article 20 (3) of the Indian Constitution, which is a fundamental right.

Principle of Best Interest

Section 2(9) of the JJ Act 2015 defines “best interest of the child” as “the basis for any decision taken involving the child, to guarantee the fulfilment of his basic rights and needs, identity, social well-being, and physical, emotional, and intellectual development.”

Part 2 of rule 14 also holds importance in the best interest of the child which is a separately recognised principle as per section 3(iv) of the JJ Act,2015.

In situations of adoption, custody, and guardianship, the idea of child rights law is that “the wellbeing of the child is the foremost priority.” The principle of best interest reflects this mindset. This principle states that the child should be the centre of every decision or action performed on their behalf. It is critical to guarantee that such a decision or action has a good impact on the child and does not harm their welfare. This approach should be applied everywhere: at home, or in schools, in child care facilities, and in front of any adjudicating authority.

Principle of Family Responsibility

The principle of family responsibility as per Section 3(v) of the JJ Act 2015 states that the biological/adoptive/foster parents have the primary responsibility of care, nurture and protection of the child. The JJ Act 2015 prefers “family-based care such as restoration to family or guardian” as a method of rehabilitation and social reintegration as per Section 39 of the Act. The underlying theme behind several principles of juvenile justice administration is that the family is the ideal setting for a child, except in circumstances where it is against the child’s best interests. This should be kept in mind by all stakeholders when decisions are made regarding a child.

We can find this principle in the Beijing Rule 18 and  26.5 which says that parents have not only the right but also the responsibility to care for and monitor their children inside the family. As a result, Rule 18.2 mandates that the separation of children from their parents be used only as a last resort. The parents or guardians of the institutionalized juvenile shall have a right of access in the juvenile’s best interests and well-being.

Principle of safety

Stakeholders in the juvenile justice system are most concerned about a child’s safety as per Section 3(vi) of the Act. Several provisions of juvenile justice legislation are based on the safety of children in conflict with the law: 

  • Not being held in police lock-ups/jails; denial of bail in circumstances where release would expose the child to “moral, physical, or psychological danger” as per Section 12; 
  • DCPU arranging community service upon completion of investigation as per Juvenile Justice (Care and Protection) Model Rules (JJ MR), 2016, Rule 11(5); non-disclosure of child’s identity as per Section 74; 
  • Arrangements of safety inside the childcare institution as per JJ MR, 2016, Rule 21(5)(vi).

This principle finds its root in the Beijing Rules according to which the risk of “criminal contamination” to juveniles while in detention before trial should not be disregarded. As a result, it’s critical to emphasize the importance of taking alternate steps. Rule 13.1 supports the creation of new and innovative strategies to avoid such detention in the juvenile’s best interests by doing so.

Principle of Positive Measures

To reduce children’s vulnerabilities and the need for intervention under this Act, all measures, including those of family and community, must be mobilized for promoting well-being, facilitating identity development, and providing an inclusive and enabling environment as per Section 3(vii) of the Act. 

The provision of constructive inputs to enable a child to cope in a communal environment is likewise covered by the principle of positive measures. This can be accomplished by assigning human resources who are competent, trained, and experienced in dealing with youngsters. As a result, training for workers who work with children in the juvenile justice system is critical.

This principle is mentioned in Rule 22 of the Beijing Rules which states that to build and maintain the requisite professional competence of all personnel dealing with juvenile cases, their professional education, in-service training, refresher courses, and other relevant forms of instruction should always be used. Personnel in the juvenile justice system must reflect the diversity of kids who come into touch with it. Efforts will be taken to ensure that women and minorities are fairly represented in juvenile justice systems. 

Principle of Non-stigmatising Semantics

This principle under Section 3(viii) restricts the use of any adversarial or accusatory words when dealing with juveniles. Even though this principle is not directly mentioned anywhere in the Beijing Rules, it finds itself indirectly in the legislation. The JJ Board is also required to maintain a child-friendly environment during the inquiry as per both Beijing Rules and the JJ Act 2015 which includes using child-friendly terminology only. 

This is based on the belief that criminal justice terminology is disparaging, accusatory, and pejorative, and hence inappropriate for children. As a result, juvenile justice legislation substitutes the words “apprehend” for “arrest,” “child in conflict with the law” for “accused,” “inquiry” for “trial,” and “found to be in conflict with the law” for “convict.” Under juvenile justice legislation, words like “prosecute” “summon,” and “warrant” are not used regarding a child in conflict with the law. 

Principle of Non-Waiver of Rights

“No waiver of a child’s right, whether sought by the child or a person acting on behalf of the child, or by a Board or a Committee, is authorized or legitimate, and any non-exercise of a fundamental right must not amount to waiver.” This Principle is mentioned in Section 3(ix) of the JJ Act 2015.

Under the Right of Children to Free and Compulsory Education Act 2009, for example, children in observation homes are entitled to free and compulsory education up to the elementary level. A child is entitled to action under the Protection of Children from Sexual Offenses Act 2012 if he or she is sexually assaulted by Special Home management or personnel.

The Beijing rule 24 states that the promotion of the well-being of the child in the childcare institutions is of paramount importance and therefore education and other basic facilities are to be provided to the child no matter what.

Principle of Equality and Non-discrimination

Rule 2.1 clearly states that there shall be no distinction of any kind and that all the Rules must be applied impartially which means that the Beijing Rules supports and promotes equality and non-discrimination among every juvenile.

The Principle of Equality and Non-discrimination as mentioned in Section 3(x) of the JJ Act 2015 suggests that juvenile justice legislation should apply equally to all children in the juvenile justice system – no juvenile should be denied juvenile justice protection, and all children should be handled in their best interests. As the phrases “on any grounds, including” imply, the grounds of discrimination specified are not exhaustive.

Principle of Right to Privacy and Confidentiality

In India, the right to privacy is considered a fundamental right and the ‘right to be left alone’ as ruled in the case of Justice K.S.Puttaswamy(Retd) vs Union of India (2018). Therefore it is very necessary to protect the privacy of the child in conflict with the law. Section 3(xi) talks about protecting the privacy of the child by all means. Further, Section 74 of the JJ Act 2015, prohibits a child’s identity from being revealed. Publication of a report in any medium addressing any inquiry, investigation, or court procedure that discloses “the name, residence, or school, or any other particular, which may lead to the identity of a child in conflict with the law” is prohibited under this section. Earlier juvenile justice legislation featured a similar provision.

Rule 8 of the JJ Act 2015 emphasizes the necessity of safeguarding the right to privacy of minors. Young people are especially vulnerable to stigmatization. The permanent labelling of young people as “delinquent” or “criminal” has been shown to have negative consequences (of various kinds) according to criminological studies on labelling processes. Rule 8 emphasizes the necessity of safeguarding the juvenile from the negative consequences that may arise from the dissemination of information about the case in the media (for example the names of young offenders, alleged or convicted). Individual rights should be respected and upheld, at least in theory.

Principle of Institutionalization as a Measure of Last Resort

“Detention pending trial shall be used only as a measure of last resort and for the shortest possible period,” according to Rule 13 of the Beijing Rules, further mentions that, “alternative measures, such as close supervision, intensive care, or placement with a family, in an educational setting, or at home, shall be used whenever possible to replace detention pending trial.” The Havana Rules also stipulate that “deprivation of a juvenile’s liberty should be the last choice, for the shortest possible term, and should be limited to exceptional instances.”

The Beijing Rule 19.1 says that “the placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary term” when it comes to ‘disposition measures’ (final orders). In the case of the JJ Act 2015, Section 3(xii) mentions this principle and then Section 10 prohibits detaining a child in confrontation with the law in a jail or police lockup. The most important Section in this regard is Section 12 which prohibits detention of the juvenile with only some exceptions. It infers that bail is a matter of right for a juvenile.

Principle of Repatriation and Restoration

According to Section 39 of the JJ Act 2015, the recommended process of rehabilitation and social reintegration under juvenile justice legislation is ‘restoration to family or guardian.’ Rule 18.2 emphasizes the importance of the family, which is “the natural and fundamental group unit of society,” according to the International Covenant on Economic, Social and Cultural Rights (ICESC) Article 10(1). Parents have not only the right but also the responsibility to care for and monitor their children inside the family. As a result, Rule 18.2 mandates that the separation of children from their parents be used only as a last resort. It should only be used when the facts of the case justify such drastic measures (for example child abuse).

Principle of Fresh Start

“Records of juvenile offenders must not be used in adult procedures in subsequent cases involving the same offender,” according to Beijing Rule No. 21. The use of this paragraph of the Beijing Rules should not be limited to adult criminals; such records should not be used in subsequent juvenile prosecutions. The relevant documents of a child’s conviction must be destroyed after a specified length of time and ensure that the child shall not suffer any disqualification when restored in society, according to Section 24 of the JJ Act, 2015.

The goal of the juvenile justice system is to provide good inputs so that the child can live a full life, rather than jeopardize the child’s future. Because the juvenile justice system is rehabilitative rather than punishing, the youngster should be given a “clean slate” to start over.

Principle of Diversion

The principle of diversion is also mentioned in Beijing Rules 11, as well as Section 3 (xv) of the JJ Act of 2015. “Measures for dealing with children in dispute with the law without resorting to court proceedings shall be promoted unless it is in the best interest of the child or society as a whole,” the bill states.

“Efforts shall be made to establish, in each national jurisdiction, a set of laws, rules, and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice,” the Beijing Rule 2.3 advocated on the international stage.

Apart from the principle of diversion, neither the JJ Act, 2015, nor the JJ Model Rules, 2016, contain the word “diversion”. But the Rule 8 of JJMR 2016 mentions that “no First Information Report shall be registered except where a heinous offence is alleged to have been committed by the child, or when such offence is alleged to have been committed jointly with an adult.” Furthermore, “the right to apprehend shall be employed only in the case of grave offences unless it is in the best interest of the child.” 

Principles of Natural Justice

Section 3(xvi) of the JJ Act 2015 states that all persons or bodies acting in a judicial capacity under this Act shall adhere to basic procedural standards of fairness, including the right to a fair hearing, the rule against bias, and the right to review. Even though Beijing Rules does not mention this principle in its wording, we can find its genesis in various Rules which talk about fair and equal treatment of juveniles, fair and equal treatment of female offenders, etc. 

In the case of Canara Bank v. Debasis Das (2003), the concept of ‘natural justice’ was defined by the Supreme Court. “Natural justice rules are not formalized canons. They are, however, values ingrained in man’s consciousness. Natural justice refers to the administration of justice in a liberal, common sense manner. Natural justice is something that has been laid down by the courts as the minimum protection of an individual’s rights against the arbitrary procedure that may be adopted by a judicial, quasi-judicial, or administrative authority while making an order affecting those rights. These restrictions are designed to keep such authorities from doing wrong.”

Age of criminal responsibility

The Beijing Rule 4 leaves it at the discretion of the member states to decide the age of criminal responsibility based on the culture and the history of the country. The modern approach would be to assess whether a child can live up to the moral and psychological components of criminal accountability; that is if a child can be held responsible for essentially antisocial behaviour based on her or his own judgment and understanding. The concept of responsibility would be rendered meaningless if the age of criminal liability was set too low or if there was no lower age restriction at all. In general, the concept of responsibility for delinquent or criminal behaviour and other social rights and responsibilities are inextricably linked (such as marital status, civil majority, etc.).

Therefore, in India as per the JJ Act, a juvenile is a child who hasn’t completed the age of 18 years, where the term child means any person below the age of 18 years.

Rights of juvenile

As per Rule 7 of the Beijing Rules, at all stages of the proceedings, fundamental procedural safeguards such as the presumption of innocence, the right to be informed of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses, and the right to appeal to a higher authority must be guaranteed.

Rule 7.1 emphasizes a few key factors that are internationally recognized in current human rights documents and are vital elements for a fair and just trial. Article 11 of the Universal Declaration of Human Rights and Article 14, paragraph 2 of the International Covenant on Civil and Political Rights, for example, both include the presumption of innocence. Rule 14 and subsequent rules of the Standard Minimum Rules address matters that are particularly relevant to proceedings in juvenile cases, whereas rule 7.1 reinforces the most fundamental procedural safeguards in a broad sense.

Another right such as the presence of a legal counsel/parents/guardian during every stage of the trial is covered under Rule  15. Rule 16 discusses the special enquiry report of the juvenile. Avoidance of unnecessary delay is discussed under Rule 20.

The JJ Act 2015 provides a juvenile with several rights. These rights are as follows:

  1. Right to equality and non-discrimination
  2. Privilege against self-incrimination
  3. Right to consult a lawyer and to legal aid
  4. Non-retroactive juvenile justice
  5. Right to be produced before JJB within 24 hours
  6. Right to be informed about charges
  7. Bail as a matter of right
  8. Presumption of innocence
  9. Right to be dealt with under the special law for children in conflict with the law
  10. Right to fair and speedy inquiry
  11. Right to life
  12. Right to education
  13. Right to child-friendly procedures and ambience
  14. Right to be heard
  15. Right to privacy
  16. Best interest principle
  17. Protection from torture and ill-treatment
  18. Right to be protected from sexual offences
  19. Right to rehabilitative dispositions
  20. Institutionalisation as a measure of last resort
  21. Prohibition against the imposition of the death penalty or life imprisonment without the possibility of release

Conclusion

As noted above, the JJ Act, 2015 and the JJMR 2016 were made in accordance with the international provisions. After discussing the provisions of the JJ Act and the Rules mentioned in the Minimum Standard Rules (Beijing Rules) we can say that the JJ Act is successful in implementing the Rules laid down by the International standards. All that is required now is a stricter implementation of this Act in India to fulfil the ultimate aim of the juvenile justice administration.

Reference 

Handbook for Advocates working with children in conflict with Law 

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Contract of indemnity and loopholes

By
Diva Rai
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0

This article is written by Sambhav Purohit and Aayushi Bhatti.

Introduction

Indemnity is defined as “security against loss” in its literal sense. The contractual duty of one party to pay the other party for losses or damages that have happened or may arise in the future as a result of his or any other party’s conduct is known as indemnification.

Section 124, Indian Contract Act, 1872 defines Contract of Indemnity:

“Contract by which one party guarantees to save the other person from loss caused to him by the action of the guarantor himself, or by the action of any other person.”

The nature of Contract of Indemnity

Contract of Indemnity can be both express or implied.

Under Sec.69, ICA: “Reimbursement of person paying money due by another, in payment of which he is interested. – A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.”

Under Sec.145, ICA: “Implied promise to indemnify surety. – In every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety, and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but no sums which he has paid wrongfully.”

Section 222, ICA:  “Agent to be indemnified against consequences of lawful acts. – The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by such agent in exercise of the authority conferred upon him”.

Implied indemnity was identified in the case of Secretary of State v. The Bank of India,  when a Broker endorsed a government promissory note with a fake endorsement. The bank sought for and received a renewal of a promissory note from the Public Debt Office after acting in good faith. In the meanwhile, the real owner sued the Secretary of State for conversion. As a result, the bank was sued by the Secretary of State based on implicit indemnification. Held, the general principle of law; when a person performs an act at the request of another, and the act is not manifestly tortious in itself to the knowledge of the person performing it, and the act injures a third person, the person performing the act is entitled to indemnification from the person who requested the act.

The order for particular enforcement requires the indemnification guarantee to be fulfilled following its provisions. It’s only accessible for and compatible with preventative promises.

McIntosh v. Dalwood:

The court in this obersved that in every instance, the contractual duty must be determined first. There is no need for equitable relief if the duty is simply to indemnify a person, in the sense of returning him an amount of money after he has paid it. Damages will be sufficient compensation. On its true construction, the obligation is to relieve a debtor by preventing him from having to pay his debt. Equity will grant relief in the form of quia timet relief, and instead of forcing the party indemnified to pay the debt first, and possibly ruining himself in the process, it will specifically enforce the obligation by ordering the indemnifying party to pay the debt.

Adamson vs. Jarvis

In this case, the plaintiff was an auctioneer who sold animals on the defendant’s instructions. It was later discovered that the cattle sold did not belong to the defendant, but rather to someone else, making the auctioneer (plaintiff) responsible for the conversion. The auctioneer then sued the defendant for indemnification for the losses and damages he incurred while working under the defendant’s orders. The plaintiff had complied with the defendant’s request and was entitled to assume that if anything went wrong, he would be compensated, according to the court. As a result, the defendant was ordered to compensate the plaintiff for his losses and damages.

Recognized problems or loopholes

  • Negligence: Whether the indemnity agreements cover the owner in situations when the accident was caused or contributed to by the carelessness of its workers.

Any indemnity agreement will offer compensation in situations when the losses are caused entirely by the contractor’s fault or carelessness, according to the law. If the owner is held liable as a result of the accident, most jurisdictions have a common law right to indemnification that applies even if there is no written indemnification agreement in place. “It is clear, from the foregoing common law rules, that one who is himself without fault and is forced by operation of law to defend himself against the act of another is entitled to indemnification.”

In situations when the owner of the building contributed to the losses resulting via carelessness or another fault of its workers, the courts are hesitant to impose an indemnity duty on the contractor. In such a scenario, most courts have ruled that the indemnification contract does not apply unless there is an explicit declaration that it does or unless the court finds the wording to be so plain that no other reading is possible. In deciding whether or not to enforce an indemnity arrangement in such a circumstance, the courts have looked at a variety of considerations.

In a Wisconsin case, Criswell v. Seaman Body Corp.,” Even though there was no intentional negligence or fault on the part of the owner, he was found responsible to a subcontractor’s employee for failing to comply with the Wisconsin Safe-Place Statute obligation to provide a “safe place” of work.

  1. If the costs and losses are entirely due to a third party’s carelessness or another fault, and the event satisfies the other requirements of the indemnity language in terms of time, location, and cause of the occurrence, the scenario should be covered by the indemnification agreement. For example, a workmen’s compensation statute could make a building owner liable for injuries sustained by one of his employees on the premises, even if neither the owner nor the contractor was at fault and the accident was caused solely by the fault of a third party or the fault of the injured party himself. In the most typical type of indemnity agreement, such costs should be covered.
  2. Most indemnity agreements would cover the owner if the losses and expenses incurred are the results of a pure accident that happens while the contractor-Indemnitor is on the premises and has some relationship with the contractor-activity. indemnitor’s A workmen’s compensation law, for example, may impose responsibility on the building owner regardless of negligence.
  3. Contrsuction and drafting problems: Indemnity provisions may cause a substantial shift in the (normal) risk distribution in a contract. As a result, courts have usually regarded indemnification provisions with great caution and subjected them to “exceptionally stringent criteria.” The “inherent probability” that the other party to a contract containing such a provision meant to relieve the other from a responsibility that would otherwise accrue to that party is the rationale for placing such requirements on such clauses.

Draftsmen are faced with the choice of stating negligence and scaring away potential contractors and lessees, or not specifying negligence and giving an Indemnitor a legitimate reason to refuse indemnity if the indemnitee is at fault. The issue will not go away, and a close case containing such a provision will almost certainly result in litigation. If the indemnitee expects to be protected against responsibility as a result of his negligence, it might be argued that the moment has come to address the problem front-on by having the contract explicitly offer such protection. After all, there’s nothing wrong with ensuring against responsibility for one’s negligence; the appropriateness is unaffected by the fact that the indemnitee is a landowner rather than a driver, and the Indemnitor is a contractor or lessee rather than an insurance company.

5. Use of confusing phrases and words in a more effective manner. When employing the terms “arising out of” and “in conjunction with,” caution should be used. The term “keep harmless” is often used in indemnity agreements, and although this is typical phraseology in indemnity clauses, the Courts have ascribed the meaning of indemnification to it.

Conclusion

In certain ways, Indian law on contractual indemnities has deviated from English law and taken its course. However, their commonalities far outnumber their differences. More than a century after the Act, the level of consistency is pretty amazing.

Liability problems can never be solved with a simple indemnification provision. Those who attempt to avoid responsibility or seek relief from liability for their conduct will find the law to be unfavourable to them. The basic rationale is that a negligent party should not be allowed to fully transfer all claims and damages against him to a non-negligent party.

References

  1. Criswell v. Seaman Body Corp., 233 Wis. 606, 290 N.W. 177 (1940).
  2. Adamson v. Jarvis, (1827) 4 Bing 66.

  3. McIntosh v. Dalwood, (1930) 30 SR (NSW) 415.

  4. Secretary of State v. The Bank of India, (1938) 40 BOMLR 868.
  5. Yeoman Credit v Latter [1961] 1 WLR 828.
  6. Peter J, Booth, “Problems with Contractual Indemnities”, Victorian Bar, available at “https://svensonbarristers.com.au/wp-content/uploads/2017/07/Problems_with_Contractual_Indemnities_-_Peter_Booth.pdf”.
  7. Collins & Dugan, “Indemnification Contracts- Some suggested Problems and Possible Solutions”, Marquette Law Review, available at “https://core.ac.uk/download/pdf/148690515.pdf”.
  8. Tiwari & Toppo, “Contract of Indemnity Case laws”, International Journal of Scientific Engineering and Research, available at “https://www.ijser.in/archives/v6i5/IJSER172511.pdf”.
  9. Wayne Courtney, “Indemnities and the Indian Contract Act 1872”, National Law School of India Review, available at “http://docs.manupatra.in/newsline/articles/Upload/78F904F2-E9A9-4BA3-9748-09C42A63621E.pdf”.
  10. Contract and Specific Relief, AVTAR SINGH(11th edition), Eastern Book Company.

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300 stray dogs poisoned to death by Andhra village panchayat

By
Sneha Mahawar
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0
ANIMAL-CRUELTY

This article is authored by Ashome Shandilya, from Symbiosis Law School, Noida. This article discusses the rights of street animals and the recent case of Andhra Village Panchayat in which 300 dogs were poisoned to death.

Introduction

Kristan Higgins has rightly said that “It’s difficult to be sad when an 85-pound mammal licks your tears away and then tries to sit on your lap.” Dogs are commonly known as humans’ best friends. Since at least the Neolithic period, people and dogs have certainly had a special bond of friendship and mutual support. Dogs are considered to be obedient, cherished companions renowned for their devotion and almost inexhaustible desire to bring a smile to their owners’ faces. But it’s rather unfortunate that the Messiah of Non-violence became the victim of violence, recently in a village in Andhra Pradesh’s West Godavari district where more than 300 stray dogs were poisoned to death and their bodies were buried in a pit. Humans are social beings, even animals, like humans, are social beings. They, too, need to be treated with respect and kindness. Stray dogs dwell on the streets or in slums, where they feed on unsanitary waste made by the local population. They frequently do not have enough food to eat, and as a result, the majority of them are malnourished. Local behaviour is also a source of concern, since only a few individuals treat them with kindness, while the rest regard them as a nuisance. In addition, they are subjected to harsh treatments such as poisoning and beating. Our constitution covers not just citizens’ rights and responsibilities to the state, but also the rights and responsibilities of innocent animals who are a part of our society. Under Section 11(1)(i) of the Prevention Of Cruelty To Animals Act 1960, it is a punishable offence to treat animals inappropriately. Under Indian Law, street dogs cannot be harmed or forced away.

Indian Street Dogs and their ‘rights’

There are many laws made for the welfare of street dogs in India. Animal cruelty is a crime in India, punishable by imprisonment and a fine under Section 11 of the Prevention of Cruelty to Animals Act and Section 429 of the Indian Penal Code. According to Section 429 of the IPC, whoever causes mischief by killing, poisoning, maiming or rendering useless any elephant, camel, horse, mule, buffalo, bull, cow, or ox, or any other animal worth fifty rupees or more, shall be punished with imprisonment of either sort for a time up to five years, or with a fine, or both.

Rules governing the sterilisation of street dogs

According to the Indian law, street dogs cannot be beaten, killed, driven away, or displaced or dislocated; instead, they must be sterilised, vaccinated, and returned to their original locations as outlined in the Animal Birth Control (Dogs) Rules, 2001, enacted under the Indian Prevention of Cruelty to Animals Act 1960.

The Animal Birth Control (Dogs) Rules, 2001, declared in Rule 6 and Rule 7:

  • Even if the Municipal Corporation believes it is necessary to regulate street dog numbers, Rule 6 explicitly states that it cannot rely on killing or dislocating. It can only sterilise and immunise the dogs before returning them to the sites where they were picked up.
  • The procedure to be followed after receiving a complaint is outlined in Rule 7.  The Municipality cannot simply pick up dogs because some people/administrators don’t like them. Even the dogs that have been reported can only be sterilized and inoculated before being returned to the places where they were picked up.

Street dogs are supposed to get vaccinated and sterilized under the Animal Birth Control Programme (ABC). Under this program, stray dogs are captured, neutered, and vaccinated against rabies before being released in the areas where they were captured, in accordance with the Animal Birth Control Rules 2001 enacted under Section 38 of the Prevention of Cruelty to Animals Act 1960 and the orders of the Honourable Supreme Court of India. ABC programs, in combination with rabies vaccination, have been supported throughout Asia since the 1960s as a way to manage urban street male and female dog populations, and ultimately human rabies. The goal is to reduce dog population turnover and the number of dogs susceptible to rabies, as well as to limit features of male canine behaviour (such as dispersal and fighting) that aid in rabies propagation.

The Prevention of Cruelty to Animals Act of 1960 prevents one from inflicting, causing, or allowing needless pain or suffering to be imposed on any animal unless they are the owner. Beating, kicking, torturing, mutilating, administering an injurious drug, or cruelly killing an animal are all prohibited under the Act.

Poisoning and injuring stray animals is against the law

In India, incidents like the one in Kerala, when thousands of stray dogs were poisoned, are unforgettable. According to Sections 428 and 429 of the Indian Penal Code and the Cruelty to Animals Act of 1960, it is against the law to injure stray animals. It is illegal to do any kind of injury to any street animal. On a daily basis, stray animals are purposely hurt by people. Under Section 11 of the 1960 Prevention of Cruelty to Animals Act, poisoning stray animals are against the law.

The tragic incident of stray dogs being thrashed and transported from their territory in sacks was disclosed recently in Gurugram. It is against the law to remove stray animals from their natural habitat. The PCA Act of 1960, Sections 11(1) I and (j), make it illegal to remove stray animals. It’s often noticed that many individuals try to erect barriers in the way of people who feed dogs in order to prevent them from doing so. Under Section 11(1) (h) of the PCA Act, 1960, it is against the law to starve street dogs or deny them shelter. It is prohibited to intentionally starve street dogs and remove their shelter.

It is illegal to capture the street animals against their will

Section 9 of the Wildlife Protection Act of 1972 prohibits anybody from capturing, inciting, or baiting street animals with the intent of injuring them. It is illegal to even attempt to do so.

Circular to Central Government Employees on Street Dogs from the Ministry of Public Grievances

On 26.5.2006 the Ministry of Public Grievances Circular on Street Dogs to Central Government Employees issued a  few guidelines for the welfare of street dogs:

Treatment of street dogs by Government employees

Any government employee who commits an act of cruelty to animals will be subject to legal action under the Prevention of Cruelty to Animals Act. He would be subject to action under the CCS (Conduct) Rules for conduct unbecoming of a Government servant, in addition to the Act’s penalties.

Citizens, residents’ welfare associations, and others

Stray animals will be dealt with by government agencies, local self-governing organisations, non-governmental organisations, and other organisations. Government colonies’ recognised associations may seek such institutions for a redress of their grievances.

However, there is no rule prohibiting people from feeding street animals. The Delhi High Court has also directed the Delhi Police to safeguard people who feed and care for street dogs, who are frequently targeted by ill-informed, ill-advised residents/administrators of certain areas, in orders issued in 2009 and 2010.

In one of its recent judgments, the Delhi High Court stated that stray or street dogs have the right to food, and citizens have the right to feed them, but that care and caution should be exercised in exercising this right.

The Animal Welfare Board of India (AWBI), a statutory organisation within the Ministry of Environment, Forest, and Climate Change of the Indian government, drafted comprehensive guidelines on stray dog feeding. The Hon’ble High Court of Delhi issued decisions on the 18th of December, 2009, and the 4th of February, 2010, mandating not only that those street dogs be fed, but that they are fed in order to confine them to the areas to which they belong. Animal reproduction control and yearly/annual immunisation are made easier by confining them to the areas to which they belong.

Analysis of the incident in Andhra Pradesh

Recently, in a horrific incident of animal cruelty, almost 300 stray dogs were poisoned to death and buried in the West Godavari district of Andhra Pradesh. Lalitha, a fight for animals activist, filed a complaint with the Dharmajigudem police station after learning about the occurrences. She went to the community and saw the pit where over 300 dogs’ carcasses were allegedly buried. The Panchayat of Lingapalem in West Godavari district had vowed to rid the community of stray dogs. Instead of sterilising the canines, the Panchayat hired dog killers who poisoned them. It all started with a report that dog meat was being sold in the village during Bakrid (July 21). A team of four activists was made right away and they began their inquiry. The villagers warned them after a few days that a terrible odour was coming from the lakebed on the edges of the settlement. The activists dug out at least 300 dog carcasses and discovered them.

They began gathering evidence and discovered that poison had been purchased from local retailers. It was spread on darts, and paid catchers fired at the dogs. It got clear that the panchayat in question is participating. According to the activists, the panchayat body gets paid for vaccinating stray dogs, and they pay a dog catcher roughly $100 per animal to kill them. “On July 29, local pig catchers notified them that stray dog carcasses had been discovered buried in a pit near Perantam tank”.

Police filed a case against the Secretary and Sarpanch of the village panchayat under Sections 429 r/w 34 of the IPC (mischief by murdering or poisoning animals) and relevant provisions of the Prevention of Cruelty to Animals Act, 1960, based on Lalitha’s complaint. An investigation is now underway. M Sugunraj, the secretary of the Lingapalem panchayat, and the sarpanch have been charged under Sections 429 of the Indian Penal Code and Section 11(l) of the Prevention of Cruelty to Animals Act, 1960. M Sugunraj, the secretary of the Lingapalem panchayat, denied that the Panchayat was involved in the heinous act.

Conclusion

Under Article 21, The Indian Constitution protects all kinds of life, including animal life. Therefore every Indian citizen should follow the law and refrain from uncivilised, criminal behaviours such as attempting to intimidate anyone who wants to compassionately deal with street animals. Another incident sparked public outcry when nearly 38 monkeys were poisoned to death, put in gunny bags, and thrown away within the confines of Sakleshpur Police in Karnataka’s Hassan district.

The recent case of Andhra Pradesh’s West Godavari where 300 dogs were killed clearly shows the death of humanity. On the orders of the panchayat of a village in Andhra Pradesh’s West Godavari district, more than 300 stray dogs were poisoned and buried. Those speechless dogs were supposedly killed and buried at the village in the district’s Lingapalem area. Despite the existence of such stringent laws, many go unpunished since bringing them to justice is difficult. Unlike house pets, street animals don’t have the luxury of a cushy life. So a little empathy and respect for the street animals can make the world a better place. These incidents make one question humanity in today’s world. Therefore it’s very important to treat every living creature with utmost humility and respect and lets each one of us take an oath to become the voices of the innocent creatures with no voice. 

References

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Zomato acquisition : a reflection of anti-competitiveness

By
Oishika Banerji
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0
Image source: https://blog.ipleaders.in/legal-formalities-to-list-a-cloud-kitchen-on-zomato/

This article has been written by Bhumika Saishri Panigrahi pursuing the Diploma in M&A, Institutional Finance, and Investment Laws (PE and VC transactions) from LawSikho.

Introduction

In January 2020, Gurugram-based start-up Zomato purchased Uber Eats India in an all-stock deal for $350 million (2485 crore). Uber also received a 9.6% share in Ant Financial, Alibaba’s online food delivery and restaurant finding platform. Because this is an acquisition rather than a merger, Uber Eats will cease to operate as a separate platform, with all of its customers being routed to Zomato. Employees of Uber Eats were not absorbed by Zomato, which meant they would be laid off if Uber did not take them on in other verticals.

Zomato’s latest UberEats acquisition isn’t the first of its sort. It has grown its business by purchasing 13 start-ups in the food delivery industry, including Runnr, which mostly operates delivery fleets. Zomato has a fleet of 150,000 vehicles, 60 percent of which are provided by its recent acquisition, Runnr. The relevance of fleet delivery systems in the sector cannot be overstated, since a larger number of ground partners means greater reach and delivery speed. For delivery caps, speed is essential since it attracts customer happiness. Zomato acquired Runnr, the next stage in the food delivery app industry, which is fleet runners, in a typical example of vertical acquisition in the same service offering cycle. Acquisitions like these are frequently welcomed because they make corporate operations easier and result in a win-win situation for both parties. 

However, the same cannot be said about competitor acquisitions, especially as market consolidation becomes more likely. Uber’s delivery partners will be redirected to Zomato as a result of Zomato’s acquisition of UberEats. This move further strengthens Zomato’s position in the South, where Swiggy continues to reign supreme. With UberEats’ profitable operation, all companies experienced an increase in cash burn as they sought to attract clients by giving competitive discounts, which often resulted in cash loss. Now that competition has been restricted to primarily two competitors, the food delivery business is garnering interesting consequences for the future. 

The acquisition’s legality

Mergers and acquisitions involving the transfer of control, shares, assets, or voting rights between two companies are bound by the requirements and objectives of the Competition Act, 2002, which aims to regulate practises that are likely to have a significant adverse effect on competition in India. Section 5 of the Act defines a combination as the purchase, merger, or acquisition of one business by another. The necessity to control mergers and acquisitions stems from the fear that the new company’s dominance and market share will be abused by using its capacity to manipulate pricing and eliminate competition in the relevant market. 

Horizontal mergers have the greatest potential to directly diminish market competition because the number of competing firms decreases and the emerging corporation gains more effective market control. By virtue of Section 6 of the Act, any combination that is likely to have an AAEC on competition within India is void. In determining the effect of a combination on the relevant market, the Competition Commission of India examines the following elements : 

  1. The combined entity’s market share and the extent to which the combination may generate entry barriers 
  2. The existing level of countervailing power in the market;
  3. The likelihood that the combination will enable the parties to have a significant and long-term impact on the market price;
  4. Effective competition in a market that is likely to last;
  5. If there are any disadvantages to the combination, the relative advantages or benefits of the combination must outweigh the disadvantages. 

Appreciable adverse effects of the acquisition 

The market impact of a combination must be determined by examining the consequences on the market’s major stakeholders. The contested merger will largely affect competitors, customers, and food-supply establishments. Customers of UberEats will transfer to one of the two dominating companies in the food delivery market now that UberEats has been removed from the list of dominant entities. This would result in Swiggy and Zomato’s market share increasing, even more, creating a duopoly situation. Furthermore, the corporations will be able to influence the market price and non-price aspects. 

Due to the high investment costs required to break client loyalty, this duopoly presents significant hurdles to entry for new competitors in the meal delivery sector. 

Furthermore, because of the competition for delivery partners, the new organisation must be able to offer competitive perks to these partners. Because Swiggy and Zomato will be able to provide better services at lower costs to their clients and better incentives to their delivery partners as a result of their market dominance, any new entry in the market will find it difficult to compete. 

Because one of the objects of the Competition Act is to protect the interests of customers and ensure that they are not exploited by an entity or a group of entities abusing its market dominance, the effect of combinations on customers is a well-established factor to be considered when assessing the legality of the same. The consumer benefits from fierce market competition since competing firms aim to provide as many prices and non-price offers as possible, and the situation is close to equilibrium because the firms will earn a normal profit. 

Aside from the customers, the combination will have a negative influence on the businesses that provide the food. Restaurants are unable to disengage from delivery apps since they account for a significant portion of possible orders. As a result of the market consolidation, eateries will have even less bargaining leverage, as they will have no choice but to use Zomato and Swiggy. Restaurant owners have been financially exploited by meal delivery apps over the last decade, as they have been pressured to offer the maximum amount of discounts and other deals allowed by law. 

Restaurants launched and implemented a Zomato Gold Logout Campaign in response to the deteriorating scenario and dwindling revenue. Restaurants will be further exploited as a result of the formation of this duopoly since competition for exclusivity and terms of profit sharing and commission amongst meal delivery applications would be reduced. As a result, the merger is anticompetitive because it would enhance the two companies’ market share, giving them the potential to exploit their power. 

The only defence available for combinations that are anticipated to have negative market impacts is that the benefits to other stakeholders outweigh the negative impact on the relevant market’s competition. The current merger saves UberEats from going bankrupt and gives Zomato and Swiggy a higher market share, but the weights cannot be determined solely from the standpoint of the aggregators. The two companies would be able to subordinate pricing decisions and rights of other stakeholders as their market dominance grew. 

UberEats takes care of everything

An examination of the alternatives to this acquisition reveals how this move endows Zomato with the power to control the meal delivery business, at least for the time being. According to most market observers, this decision appears to have turned the tables firmly on UberEats after examining the possibilities accessible to both sides. With this decision, Uber has bought a 10% share in one of India’s largest food delivery businesses, which is growing at a rate of up to 150 percent. UberEats was also able to reduce its losses. UberEats was predicted to lose INR 762.5 Cr ($107.6 Mn) between August and December 2019, according to Ministry of Corporate Affairs filings. UberEats has benefited the most from this deal because it has been able to have its cake and eat it as well. It maintains a presence in the food delivery industry through Zomato but does not experience the same level of losses or financial burn as it did previously, allowing the company to expand in other directions. 

Zomato has a little window of opportunity to maximize its client acquisition, and it has taken advantage of it. By offering a three-month free subscription to Zomato Gold, it has widened its net in order to convince users to stick with Zomato rather than go to Swiggy. However, Zomato’s real increase begins after three months. The aggressive discount battle between Swiggy and Zomato is unlikely to continue, as the market remains consolidated with only the two providers with one much fewer rival. As a result, it becomes simpler for both firms to persuade restaurants to keep their commitments, as deliveries account for a significant portion of restaurant revenue, and with only two entry points, their relevance rises, providing both delivery apps more bargaining leverage. 

In the end, Zomato essentially paid for not only its own expansion but also Swiggy’s. Someone had to bite the bullet in order to consolidate a market like this one. Zomato might have continued to manage UberEats through its own interface, while managing decision-making, as an alternative to an all-share takeover. However, for a variety of reasons, that would not have been a cost-effective option. 

The app’s trademarks, goodwill, and patents would have been purchased by Zomato, putting Uber in a key position for price control. The starting point would have been a price much higher than the amount bargained for. Furthermore, Uber would have had a greater degree of control over the business while without offering a higher profit share. Customers would have to be sold twice as many discounts on both Zomato and the Uber Eats interface, resulting in this amalgamation. As a result, in the long run, this alternative was not viable. 

As a result, while this acquisition gives delivery apps more power, it also bears a striking resemblance to the trajectory of ride-hailing applications. Ride-hailing apps have undergone a similar transformation. Ola purchased TaxiForSure, which is a comparable precedent. All the while, by compelling the original ride-hailing vehicles– the individual taxi/auto taxi unions/auto unions– to comply with the rules imposed by these applications, the original ride-hailing vehicles– the individual taxi/auto taxi unions/auto unions– are steadily losing control. It wouldn’t surprise me if the same thing happened in the food delivery sector. In fact, this course has already been set. 

What is the significance of CCI’s investigation? 

According to a Zomato spokeswoman, the CCI is looking into the basics of the purchase. In India, major players have made acquisitions, such as Facebook’s acquisition of WhatsApp, Flipkart’s acquisition of Myntra, and Ola’s acquisition of TaxiForSure. All of these mergers and acquisitions between commercial behemoths have a significant impact on India’s competitive landscape. Because all of these large firms with a large client base have a significant impact on the market while undertaking the acquisition process. As a result, CCI must investigate the situation in order to promote fair competition in the market, while keeping in mind CCI’s fundamental goals of prohibiting anti-competitive practices and safeguarding consumer interests. 

The Commission is simply collecting information to establish if Zomato’s acquisition of Uber Eats is anti-competitive in nature, which is relevant because the draught Competition (Amendment) Bill, 2020, which has yet to be ratified by Parliament, affirms the evaluation of such transactions. Anti-competitive Agreements are defined in Section 3(1) of the Indian Competition Act, which prohibits organisations and businesses from entering into agreements that are likely to “have significant adverse effects on competition within India (AAEC).” Section 3(2) also declares void any agreement that violates Section 3(1). 

According to the Act, agreements, including cartels, are deemed to have AAEC if they I directly or indirectly determine sale or purchase prices; (ii) limit production, supply, technical development, or provision of services in the market by geographical allocation; or (iv) result in bid-rigging or collusive bidding. Because the acquisition of Uber Eats by Zomato is a contract between two companies that are in the same stage of development, it falls under the category of “horizontal agreements,” which the CCI will evaluate to see if it is anti-competitive. Such an acquisition should be scrutinised closely because the expansion of the client base as a result of the purchase could lead to the corporation or firm functioning independently of market forces, affecting competitors and consumers in its favour.  Because the nature of market rivalry has altered with the advent of new tech giants, the Competition (Amendment) Bill assures that asset size and revenue are not the only benchmarks of evaluation; rather, their client base is to be scrutinised as well. This investigation by the CCI is significant because it has the potential to have a significant impact on all future acquisitions of this sort amongst the market’s major players. 

According to the new Draft Bill, the CCI has chosen to scrutinise and examine such purchases since they may be harmful to competition in India. Because acquisitions increase the number of customers and market share in the relevant industry, they may discourage existing players and force them into significant losses, resulting in a decline in the number of participants in the market. This could eventually lead to the acquirer establishing a dominant position and, potentially, abusing it in the market. Furthermore, such an analysis of these acquisitions is to verify that, as a result of the acquirer’s large-scale business, no new entry barriers are formed in the market for new players with a tiny customer base, high entry costs, and a lack of marketing and technical know-how. The development of such entry hurdles could lead to unfair competition and the potential misuse of market dominance by a few major companies. 

Conclusion 

Because of the aforementioned impacts of the contested combination on meal delivery competition, the acquisition of UberEats by Zomato must be deemed illegal under Section 6 of the Competition Act. The negative repercussions of the combination can be seen in all of its stakeholders, including market competitors, consumers, delivery partners, and restaurants. The availability of choice and bargaining power for other stakeholders has dramatically decreased as a result of the formation of duopoly and dominance by two firms in the relevant market. With the current trend of tech giants from many sectors trying to combine and acquire in order to develop a significant consumer base and grab a large market, CCI’s role to investigate and scrutinise such agreements grows. This is due to the danger of organisations and firms capturing a huge market, becoming dominant, and perhaps abusing their position to gain a competitive advantage. As a result, with the arrival of new technologies and changing market norms, managing such high-value mergers and acquisitions becomes increasingly important in order to foster and sustain market competitiveness. The Competition Act of 2002’s Preamble and goals require that such transactions be regulated. 

References 

  1. https://blog.ipleaders.in/ubereaten-by-zomato-anti-competitive-nature-of-the-acquisition/. 
  2. https://thecclrblog.wordpress.com/2020/06/20/zomatos-acquisition-of-uber-eats-why-is-ccis-probe-important/.
  3. https://lawschoolpolicyreview.com/2021/06/21/zomato-ubereats-acquisition-the-changing-dynamics-of-combination-assessment/.
  4. https://www.moneycontrol.com/news/business/exclusive-i-competition-regulator-launches-probe-into-zomato-uber-eats-deal-5302501.html.

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Associating cryptocurrency with dark market transactions : bringing in the aspect of terrorism

By
Rachit Garg
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0
Image source- https://rb.gy/9tnezw

This article is written by Ms Aporva Shekhar from KIIT School of law. This article is a brief introduction to cryptocurrency and its relationship with darknet transactions and terrorism.

Introduction

Cryptocurrency is expected to be the future for all financial transactions, making them more secure and easily trackable, promoting transparency and accountability. But the cryptocurrencies that are being developed currently have not reached the desired level of sophistication yet and create several pitfalls for law enforcement. In an aim to increase privacy, cryptocurrencies present in the market currently have enabled their users to use and transfer such currencies offline as well. This disadvantage has created new opportunities for malefactors to transfer and accumulate their assets and engage in illicit transactions undetected by law enforcement with the help of cryptocurrencies. The anonymity granted by the internet and technology has facilitated darknet transactions and provided an opportunity for terrorist organisations to use it for their benefit.

Classification of cryptocurrencies

The popularity of cryptocurrencies is attributed to blockchain which is a decentralized ledger, data management solution and concurrent transaction technology. The main objective of cryptocurrencies is to eliminate third party control and create a decentralized environment for transactions. This technology has already been adopted by many institutions to facilitate cross border payments and financial transactions owing to its anonymous transaction processing. Most traders and investors in the field formulate their own classification model to distinguish one crypto asset from the other but the most popular form of classification is based on the crypto assets usage.

Payment based

This might be the most popularly known form of use for cryptocurrencies, as that of digital money that can be used in transactions. Shared blockchain technology facilitates their operation on a distributed network of computers. Most cryptocurrencies are in a bid to become legal tender and others focus on transactions for a specific sector, industry or use. Payment cryptocurrencies might contain many features but they are easily distinguishable by some basic characteristics, that are, defining, storing, recording and securing transactions of the shared blockchain network they operate on. The premier cryptocurrency Bitcoin was created to make it an alternative to legal tender and therefore is an accurate example of a payment based cryptocurrency. Cryptocurrencies backed by assets can also be classified as payment based cryptocurrencies. These crypto-assets provide transparency and efficiency akin to traditional assets and also give the benefit of exposure to established stores of value.

Infrastructure based

Infrastructure based cryptocurrencies focus more on the payment of the network of computers that run the shared blockchain technology. Ether is the crypto asset that powers the cryptocurrency. Ethereum is an accurate example of an infrastructure based cryptocurrency. Decentralized applications can only be used and created on the network through the purchase of Ethereum. This type of cryptocurrency is used to power the infrastructure of various blockchain platforms that provide different use cases. Interoperable tokens that focus on linking multiple blockchain platforms to enable users to interact across these platforms can also be considered as infrastructure cryptocurrencies.

Finance based

Financial cryptocurrencies facilitate the management and exchange of other forms of cryptocurrencies. These cryptocurrencies aid users in trading in decentralized exchanges and also helps in making operating decisions. They can be used for connecting nascent crypto projects and investors and can also be used for crowdfunding. More developed finance-based cryptocurrencies also seek to replicate complex financial services like borrowing, lending and market-making. They also have a benefit in the form of speculation as they can aid in the prediction of outcomes of certain events.

Service-based

As the title suggests, service-based cryptocurrencies seek to provide services like personal management tools or enterprise data on a blockchain. The characteristic feature is to evaluate external data sources by aiding blockchain-based financial products. Blockchain technology has many use cases that can be merged with real-world applications. Dentacoin is an example of a cryptocurrency that is used in the healthcare industry and Storj and Siacoin are cryptocurrencies that offer services for file storage.

Entertainment and media-based

This cryptocurrency’s main use is to act as a reward for social media content, gambling and games for users. It aims to distribute value between consumers and creators in an equitable way like the Basic Attention Token. Augmented reality technologies and digital worlds are virtually powered and accessed by entertainment and media cryptocurrencies.

The policymakers : ECB, IMF, BIS, EBA, ESMA, World Bank and FATF

With all the benefits that cryptocurrencies bring with enhanced privacy and lowered transaction costs, they also add the threat of fraud and malpractice. The three main reasons for concern regarding cryptocurrencies are their irretrievable nature, exchange services and cryptocurrency mining malware. Another issue is the lack of uniformity in the categorization of cryptocurrencies from property to currency as both categorizations have different implications. 

As a currency, it can be used as a measure and store of value and a means of exchange and as property taxes are to be levied on it. The encrypted nature of cryptocurrency makes it prone to losing value as it cannot escheat to the State like abandoned property and therefore might lose value. The ease of transaction across geographical bounds combined with other features of cryptocurrencies makes it a potential tool for criminal and terror organizations. Therefore, policy-making bodies have made an attempt to regulate cryptocurrencies to reduce the risk of fraud and misutilization.

ECB (European Central Bank)

Cryptocurrencies have been defined by the ECB to mean a digital alternative to money and store of value that is not issued by a central bank or any other institution. Bitcoin has been described as a cryptocurrency bilaterally interacting with the economy by the ECB. The ECB has categorized cryptocurrencies as a form of an unregulated subset of a virtual currency controlled by their developers and which can only be traded within a specific community of users. ECB categorized cryptocurrency into three types based on their interaction with legal tender and the economy:

  • Virtual- which can only be used in a virtual environment like in software or game like the gold in world of warcraft game.
  • Convertible- cryptocurrencies that unilaterally interact with the economy have a conversion rate that is used to quantify the value of the cryptocurrency in terms of legal tender. It is then used to buy virtual or real commodities and services like Facebook credits.
  • Exchangeable- cryptocurrencies are connected to the economy bilaterally which means that they can be quantified in the form of legal tender through conversion rates and consequently they can also be bought and sold at the same rate. It can then be used to buy real and virtual commodities and services.

IMF (International Monetary Fund)

The IMF defines cryptocurrencies similar to the ECB, adding that they are denominated in their unit of account and are issued by private developers. But the IMF differs from the ECB as its definition of the term covers a wide range of so-called currencies ranging from certificate of debts(IOUs) to airline miles, coupons and asset-backed cryptocurrencies and others such as Bitcoin.

BIS (Bank for International Settlements)

A body of the BIS, the CPMI (Committee on Payments and Market infrastructure) has categorised cryptocurrencies that display specific characteristics to be digital currency schemes or currencies. The characteristics are:

  • Assets with zero intrinsic value but their value is determined by the forces of supply and demand like gold.
  • Remote peer-to-peer exchanges are facilitated through distributed ledgers of electronic value.
  • No individual or institution operates it.

EBA (European Banking Authority)

The EBA has defined cryptocurrencies as digital stores of value that are not issued by any apex institution, which are used by natural or juristic persons as a means of transfer and exchange, not necessarily associated with legal tender and can be stored and traded digitally. In August 2014 the EBA suggested long and short term regulatory frameworks to minimize the identifiable risks.

ESMA (European Securities and Market Authority)

The ESMA, in association with EBA and EIOPA (European Insurance and Occupational Pensions Association), issued a pan-European warning referring to cryptocurrencies as virtual currency. Similar to other institutions like EBA, the ESMA defined cryptocurrencies as digital stores of value distinct from legal tender, not issued or guaranteed by any apex institution.

World Bank

Akin to other institutions, the World Bank has also categorized cryptocurrencies to be a subset of the broad term digital currencies, defining them to be digital stores of value, different from e-money denominated in their unit of account. The only point of distinction from the definitions given by other institutions is that the World Bank states that, to achieve consensus, cryptocurrencies use cryptographic techniques.

FATF (Financial Action Task Force)

The FATF has also given a similar definition with 3 characteristic features for cryptocurrencies: 

  1. It is a medium of exchange.
  2. A unit of account.
  3. A store of value lacking the status of fiat currency. 

This institution categorizes cryptocurrencies into two types:

  • Convertible- Centralized or decentralized cryptocurrency that is quantified in the form of legal tender by virtue of a conversion rate used for trade and exchange. For example, Bitcoin is a decentralized, math-based virtual convertible currency that is secured by cryptography.
  • Non-Convertible- Digital currencies that can only be traded in specific virtual platforms like gold in World of Warcraft games and cannot be converted to legal tender.

Darknet and cryptocurrency taxonomy

The dark web is not distinct from the world wide web but rather consists of digital platforms that exist on network overlays requiring specialized software and authorization to access. It serves the nefarious purpose of being a hub for malicious content and illegal activities. The encrypted websites that are not normally indexed on conventional internet search engines provide anonymity that is used by people to express their views freely and by the police to communicate and detect potential offenders.

But the dark web is a double-edged sword, it does possess certain benefits but it also allows many malefactors to operate freely across the globe. Technology has ushered development into a new era but it has also highlighted the vices that exist in our society. The dark web combined with cryptocurrency is now being used by many individuals and organizations to evade the law with criminal intent. In order to identify the malicious transactions taking place on the dark web, certain categories of data associated with cryptocurrency transactions have been classified by the Interpol Darknet and Cryptocurrencies Task Force as global cryptocurrency taxonomy. The three main categories for identification are as follows:

  • Entities- all the transactions between listed criminal individuals, organizations and other digital entities that engage in illegal activities on the darknet should be closely monitored. All information related to cryptocurrency transactions of such entities as mentioned above needs to be collected and analysed to identify and predict offences and illegal operations.
  • Services- Data related to illegal commodities and services that are being solicited on the dark web in exchange for cryptocurrency should be collected as well. A close watch should be placed on darknet mediators, facility providers, markets and cryptocurrency exchanges to track and identify possible offenders and deviants.
  • Categories of crime- tracking and collection of data are to be based on the transaction’s intended offence, like child pornography, cybercrime, sale of weapons, illicit drugs and other reprehensible activities. Law enforcement can effectively track and identify potential criminals by tracking cryptocurrency transactions related to these crimes and apprehend the offenders.

Online counter-terrorism investigations

Social media and other digital platforms have become a breeding ground for terrorist propaganda and recruitments across the globe cost-effectively. Encrypted communication applications virtually secured by robust cryptography have facilitated global communication for terror organizations that were not available in the past. The worldwide web has connected people across the globe but it has also created an unregulated territory for terror organizations to benefit from. Online spaces cannot be restricted altogether as that would encroach upon several human rights and curb free speech. So counter-terror operations have taken a precautionary approach through online investigations to nip terror schemes in the bud. UNCCT (United Nations Counter-Terrorism Centre) in association with INTERPOL has created a handbook to guide investigators in the analysis and collection of malicious data online.

Social media

Social media has the widest reach and thus, it is something that can be used by terror organizations to spread propaganda and recruit potential terrorists. Investigators must know how to effectively utilize social media to identify investigative leads and relevant electronic records. In order to ensure successful prosecutions, investigators must collect, preserve and analyse all relevant data to build a strong case. The handbook promotes good practices and provides useful online tools to help investigators. The key areas covered in the handbook are:

  • Analysing the development and migration of terror organizations to digital platforms and their activity trends online.
  • Promoting good practices in counter-terrorism investigations.
  • Guide to requesting, collecting and preserving online records and pieces of evidence from service providers.

Ongoing UNCCT and INTERPOL operation

The handbook mentioned above is part of a wider cooperative effort between the two organizations to tackle the FTF (Foreign Terrorist Fighters) phenomenon. The program focuses on training and educating personnel in Southeast Asian regions, North Africa and the Middle East as terror organizations in these regions are very active. Global law enforcement is tasked with the duty of effectively understanding, anticipating and addressing the emerging security and terror threats. This program that was conducted between July 2018 to February 2019 sought to educate personnel in these regions through a series of training workshops. The existing knowledge and network of UNCCT, UNODC (United Nations Office on Drugs and Crime), CTED (Counter-Terrorism Committee Executive Directorate) and the IAP (International Association of Prosecutors) played an integral role in building presentations and discussions conducted in the regional workshops. This project was financed by contributions made by the countries of Japan, the United Arab Emirates and Saudi Arabia.

Cyberattacks on cryptocurrency

A secure source of finance is extremely important for terror organizations to carry out their operations and cryptocurrencies are being used by these organizations more and more to transfer funds around the globe. Cryptocurrencies are not as anonymous as they seem and law enforcement can use this vulnerability to track and attack such cryptocurrency transactions to choke the terror organization’s finance supply but it can go the other way around too.

Classification of attacks against cryptocurrency systems

With the advent of smarter and more sophisticated systems more, new forms of cryptocurrencies and cyber-attack schemes are being discovered every day, but the most popular forms of cyberattacks that can be used against cryptocurrency use are:

  • Deanonymization- which focuses on revealing the identity of cryptocurrency users, involves snooping IP addresses and monitoring activities to identify parties involved in a crypto transaction.
  • Spending Denial- this attack targets the blockchain system or the shared network, by encoded certain directions to prevent the processing of specific crypto transactions. DDoS (Distributed Denial of Service) attacks are very commonly known and interrupt the service connection of a network or service to make it unavailable to a specific set of users temporarily or indefinitely.
  • Theft- this attack seeks to compromise the cryptography of the target by corrupting or stealing a personal key used to access the underlying system. Attacks are focused on crypto primitives and hosted wallets.
  • Systematic- systematic attacks are the most drastic of them all and can shut down the entire blockchain network, thereby eliminating the system for all parties involved and preventing any further transactions. This is also a form of DDoS attack and can also be called a targeted border gateway protocol attack.

These attacks can further be classified in terms of their visibility as follows:

  • Offline- these attacks do not require any connection to the blockchain and include most classes of side-channel and statistical attacks. These attacks can occur in real-time and aim to deanonymize without connecting to the system at all.
  • Passive- as the name suggests passive attacks require no interference with the system but rather, involves data collection. For example, an adversary may collect internet traffic data by running Bitcoin nodes or nodes to identify IP addresses of individuals engaging in transactions. Similarly, an attacker could eliminate the anonymity advantage by connecting to a coin-mix system.
  • Active- these attacks require involvement and connection to the network and may include DDoS that prevents a transaction from being processed. Even though these attacks are potentially detectable by the targeted party but are not that detectable by other observers. These attacks can range from simple stealing of passwords to more complex operations.
  • Blatant- as it is apparent from the name, these attacks are easily identifiable by the targeted party and other observers and include DDoS attacks that involve taking down entire servers, seizing targeted funds to redirect them or compromising an e-wallet or a currency exchange. A systematic attack is carried out in this way, a sophisticated attack known as the Flame targeted a vulnerability in Microsoft’s software update verifications. Such attacks are public and easily identifiable.

Vulnerabilities of sophisticated cryptocurrencies

Regardless of their popularity, cryptocurrencies are still relatively new and therefore, are not well tested and are being developed to counter deficiencies. Therefore, new vulnerabilities may prop up every day that might threaten the anonymity and stability of the currency itself. Newer cryptocurrencies like Zcash and Monero are developed in consonance with public policy and so they ensure easy and convenient enforcement of anti-money laundering laws that even current legal tender and cryptocurrencies cannot accommodate. However, it is also possible that the same technology can be used to develop cryptocurrencies to evade the law.

There are several ways through which a terrorist organization can utilize cryptocurrencies for their nefarious purposes but there are also other ways that law enforcement can attack such cryptocurrency transactions by utilising its vulnerabilities. These advantages and disadvantages of digital currency can serve some purpose but it is not presently clear whether cryptocurrencies are being utilized by terror organisations. The numerous pitfalls of cryptocurrencies suggest that such terror organizations would be reluctant to rely on cryptocurrencies. Due to their immense potential law enforcement should closely monitor the development of cryptocurrencies.

Factors facilitating the increase in cryptocurrency viability for terrorist organizations

It is still unclear whether terrorist organizations are actually using cryptocurrencies or not but with the development of cryptocurrencies and new terror methods it might be highly likely. The degree of viability of cryptocurrencies will decide the extent of use by terrorist organizations. There are several factors that make cryptocurrency use more attractive for terrorist organizations and some of them are as follows:

Broad use

Wider acceptance and continued growth make cryptocurrencies more feasible for use by terrorist organizations. With the passage of time cryptocurrencies might even become more common and generally acceptable as an alternative to legal tender across the globe. Widespread acceptance will lead to more transactions, as ease of use and convenience increase. This development might make cryptocurrencies valid in areas where terrorist organizations operate and with such a wide reach, terrorist organizations might utilize them to finance their operations across the globe.

Anonymity

This characteristic of cryptocurrencies has become very attractive to criminals and malefactors and newer cryptocurrencies with enhanced anonymity features are being employed by individuals and organizations for illicit activities every day. The current market is dominated by Bitcoin, which makes it extremely hard for other privacy-conscious cryptocurrencies to breakthrough. Zcash and Monero are not even worth half of Bitcoin’s value and such inconsequentiality makes the newer privacy-conscious cryptos not very useful for criminals and normal people alike. But anonymity and unlikable transactions are worrisome features of cryptocurrencies that could be used by terrorist organizations.

Regulatory lacunae

Cryptocurrency is still a relatively new technology for several countries, but it is still widely used and most countries only have partial or no regulatory guidelines at all to regulate the cryptocurrency market. Regulatory oversight is still somewhat limited owing to the dynamic nature of the market. Cryptocurrencies are constantly evolving and changing and so regulations and policies regulating them become outdated more often. Even though cryptocurrencies are not that widely used but with the lack of proper regulations they could be easily misused for money laundering and other illicit activities owing to their anonymity. Cryptocurrency transactions on decentralized exchanges are even harder to track and therefore, present a serious issue. A coordinated effort to formulate a regulatory guideline needs to be initiated worldwide.

Use in complementary and adjacent markets

Cryptocurrencies have perfectly adapted to complementary and adjacent markets, so much so that they have become extremely popular in black markets and several counterfeiting operations have already begun trading stolen credit. The combination of illicit uses and anonymity poses a serious issue as cryptocurrencies can be easily misappropriated. Newer privacy-conscious cryptocurrencies like Zcash and Monero have become the new currency for cybercrime. Cryptocurrencies are being used in the darknet markets to trade in illicit drugs and according to data the proceeds already range in millions of dollars. But there is no data at present to suggest that cryptocurrencies are being extensively used by criminals, but their adaptable nature and ease of use in different markets makes them very viable for criminal activity.

Limitations of current cryptocurrency systems for terrorist use

There is no data to suggest that terrorist organizations are using cryptocurrencies but rather, several characteristics of cryptocurrencies suggest that such organizations would be very reluctant to rely on cryptocurrencies. Some of these factors that make terror organizations averse to cryptocurrencies are as follows.

Fluctuation in the cryptocurrency markets

Cryptocurrencies are plagued by infighting and uncertainty as they grow, decreasing the chances of wider acceptance and therefore makes them less attractive for terrorist organizations. The existence of diversity and the decentralized nature of various cryptocurrencies, miners, investors and other parties involved prevents uniformity and development necessary for stability and acceptance. These factors have already led to significant competition between Bitcoin and Ethereum blockchains. This has a negative impact on its viability to be adopted as an alternative to legal tender and legal tender is stable and well established and understood by the masses. These factors make cryptocurrencies extremely unreliable and unacceptable for terrorist organizations.

International Law enforcement

Cryptocurrencies will only prove useful to a terrorist organization if it is widely accepted, but with widespread acceptance cryptocurrencies regulations will also increase to prevent misappropriation. Law enforcement and cybersecurity will reduce anonymity in cryptocurrency transactions which will reduce cryptocurrency’s viability to be used by terrorist organizations. It is also possible that cryptocurrencies might enable regulations and law enforcement, regardless of their anti-establishment origins. Due to its digital nature cryptocurrency exchanges could be easily programmed to filter through malicious transactions, therefore, making terrorist organizations averse to cryptocurrencies.

Security breaches and system hacks

Cryptocurrencies have been prone to system attacks, theft, security breaches and other similar mishaps since their inception. Most of these issues might not stem from system failures but misconceptions and misplaced trust by the users leading to the common consensus that cryptocurrencies are not a safe alternative to legal tender. Overall the trust in cryptocurrencies is generally very low due to such disadvantages and therefore it becomes even more unattractive for terrorist use.

Questioning the need for a more comprehensive approach, introducing license requirements for cryptocurrencies

Cryptocurrency has great potential and in order to realize it in a positive way, there is an immediate need for a more robust regulatory framework. An economy is a well-oiled machine and cryptocurrencies are a clog in that machine. With no statutory recognition, they might create more issues and reap no benefits. Regulations are needed to protect users and investors alike. Virtual assets can be easily manipulated and used for illicit purposes. Lawmakers should focus on legitimizing only specific cryptocurrencies out of the hundreds that exist and a regulatory authority also needs to be established to govern and adjudicate disputes in this field. Crypto assets have no intrinsic value and therefore it might be possible that due to technological advancements blockchain technology itself might become obsolete. Therefore, a balanced regulatory framework should be established after weighing its benefits and costs so as to not discourage the development of such progressive technologies and businesses.

Conclusion

Cryptocurrencies are a revolutionary feat of modern technology that combine several elements to create a convenient alternative to legal tender. But it is still a relevantly new technology and therefore it still has several pitfalls that could be misappropriated by malefactors. The dynamic and unstable nature of cryptocurrencies and the market is decentralized and highly unregulated making it ripe for exploitation. It has been extremely hard for regulators to form a comprehensive framework to accommodate cryptocurrency markets which might make it great for engaging in illicit transactions. But currently, there is no data to suggest that terrorist organizations are utilizing cryptocurrencies for their operations.

References

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Implication of foreign court insolvency proceedings in India

By
Oishika Banerji
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0
Image source: https://blog.ipleaders.in/uncitral-model-law-on-cross-border-and-jet-airways-insolvency/

This article has been written by Saswata Tewari pursuing the Diploma in M&A, Institutional Finance, and Investment Laws (PE and VC transactions) from LawSikho.

Introduction

Did you know that India received the largest overall Foreign Direct Investment inflow of US$ 81.72 billion in 2020-21?

India is a fast-growing country that is booming at an unprecedented rate, making it a desirable destination for foreign investors to invest in. But what if the investors are not entitled to their rights in terms of getting back their investment. That would not be fair at all. This is precisely what occurred in the case of Jet Airways India Private Limited. The National Company Law Appellate Tribunal (“NCLAT”) overturned the ruling of the National Company Law Tribunal (“NCLT”) allowing a Dutch administrator to participate in and attend the committee of the creditor’s meeting. However, to avoid a conflict of interest, NCLAT eventually authorized the administrator to attend the meeting but only as an observer. Nonetheless, this was not the first instance in which the lacunae were discovered. The insolvency proceedings of cases like Videocon Industries highlight the necessity for legislation in India that focuses on the smooth conclusion of foreign court insolvency processes.

The purpose of this article is to discuss the present state of foreign insolvency procedures in India, as well as recommended improvements to address the system’s flaws. Now, before we get into the meat of the matter, let us define foreign or as we say cross-border insolvency proceedings.

Meaning

Insolvency occurs when an individual or business is unable to pay off its financial obligations owed to lenders in the form of debt. When a business is declared bankrupt, there are different processes that it must follow, such as informal meetings between the company and its creditors to work out an alternate method of repaying the debts. When the results of these meetings fail to address the situation, specific insolvency proceedings are carried out, in which the liquidator acquires all of the company’s assets, evaluates them, and liquidates those assets to pay off the liabilities.

In cross-border insolvency, the insolvent debtor owns assets in many jurisdictions, or the creditors of the concerned debtor are not from the jurisdiction where the insolvency proceedings are initiated.

Let’s use an example to illustrate the point. Assume XYZ Ltd (XYZ) is a business established in India with assets in the United Kingdom in the form of subsidiary companies and physical assets. XYZ also has certain international debtors, with whom it has a legal relationship governed by English law. Now, XYZ’s domestic creditors file an insolvency petition against the company, which is accepted, and an Interim Resolution Professional (IRP) is appointed. The IRP convenes a meeting of all creditors, and the Committee of Creditors agrees on a plan for XYZ’s resolution. However, the foreigners, in this case, are unable to take part in the resolution process. This is where cross-border insolvency laws come into play, providing a solution to these issues.

There are now three distinct components to cross-border insolvency proceedings:

  • The first is to defend the interests of foreign creditors who have specific rights to the assets of the concerned debtor that are located in jurisdictions where insolvency procedures are pending.
  • The second aspect is when the debtor’s assets are spread across many jurisdictions and the creditor seeks to include those assets in the bankruptcy procedures.
  • Third, insolvency procedures against the same debtor are ongoing or have been initiated in many jurisdictions.

These components help the legislation to identify the areas around which laws are to be made.

Current laws on foreign insolvency

The matters of insolvency in India are governed by the Insolvency and Bankruptcy Code, 2016(“IBC”) which came into force on 15th December 2016. Two provisions relate to cross-border insolvency disputes;

  • Section 234 (Agreement with foreign countries)

As per Section 234 of the IBC, the Central Government has the power to enter into an agreement with foreign Governments. Further using a reciprocal agreement, the Central Government may also direct the application of the IBC’s provisions to assets or property of a corporate debtor or an individual, including a personal guarantor of a corporate debtor, located outside India.

  • Section 235(Letter of request)

The resolution professional, liquidator, or bankruptcy trustee can apply to the NCLT under Section 235 of the IBC where evidence or action pertaining to assets of a corporate debtor situated outside India is sought in connection with an insolvency resolution process. If the NCLT finds it appropriate, it may issue a letter of request to a court or judicial authority of a country with whom a reciprocal agreement has been formed under Section 234 of the IBC.

Even though the above-mentioned provisions of the IBC were designed to extract the most value from the corporate debtor’s assets, India has yet to engage in any reciprocal arrangement with any nation, and also, no meaningful steps have been done to enforce the inter-government agreements.

Observing the existing laws of IBC are not sufficient enough to address the problems arising out of cross-border insolvency, the Insolvency Law Committee(“Committee”) submitted a report on the 16th of October 2018. The report includes various adjustments and alterations to the Model Law that the Committee felt necessary in the Indian context.

Uncitral model law 

The UNCITRAL Model Law on Cross Border Insolvency, 1997 (the “Model Law”) was suggested by the United Nations Commission on International Trade Law. The Model Law was accepted on May 30, 1997, by the UNCITRAL during its 13th session in Vienna. 

The Model Law provides for a uniform approach to matters of cross-border insolvency by mixing national insolvency laws dealing with it. It does not provide for substantive insolvency law unification; rather, it recognizes the variety of insolvency laws between jurisdictions and allows countries to design their national laws following the Model Law after making any changes they consider appropriate. 

Model Law can be divided into the following pillars:

  • Pillar of Access 

The Model Law’s provisions allow it to remove or mitigate many current obstacles that foreign liquidators face in terms of jurisdiction, standing, and the right to be heard and will authorize any foreign representative to apply directly to a court in a state that has accepted the Model Law to begin domestic insolvency proceedings.

  • Pillar of Recognition 

The Model Law recognizes foreign proceedings and the relief granted by the domestic court as a result of the recognition. 

The Committee report of 2018 recognized two categories of foreign proceedings intending to determine the amount of control and authority that the jurisdiction has over insolvency resolution procedures:

  1. Foreign Main Proceedings – proceedings in the State where the corporate debtor has a centre of its main interest.
  2. Foreign Non-Main Proceedings- proceedings in the State where the corporate debtor has an establishment.
  • Pillar of Relief 

Model Law defines the types of relief that can be granted in both foreign main and non-main procedures. If the NCLT determines that a process is a foreign main proceeding, the continuing domestic procedures are halted, and the estate is handled by the foreign representative thus appointed. Whereas, if a process is judged to be a foreign non-main proceeding, such remedy is at the discretion of the court.

  • Pillar of Cooperation and Coordination 

The Model Law establishes the foundation for the best possible collaboration and communication between domestic and foreign courts, as well as insolvency practitioners. It also establishes the foundation for concurrent insolvency procedures, which are the initiation of domestic proceedings while a foreign proceeding has already begun, or vice versa. It also facilitates collaboration among two or more concurrent insolvency processes that are taking place in separate countries.

The Model Law also includes a public policy exemption, which permits courts in a state to refuse to take any action authorized by the Model Law if such action is inconsistent with the state’s public policy.

Implications

Now, what can be the possible implications if the suggestions and alterations suggested by the report of the Committee are implemented in India.

Change in the legal proceedings in India

If the report’s recommendations are implemented in India and the NCLT determines that a foreign proceeding is a foreign main proceeding, any arbitration and litigation procedures in India against the corporate debtor will be automatically subjected to a moratorium i.e will be put to a halt. However, If the NCLT finds that a foreign proceeding is a foreign non-main proceeding, the NCLT will have the power to impose a moratorium, thereby halting all litigation and arbitration proceedings against the corporate debtor in India.

Until the report’s recommendations are adopted in India, any arbitration or legal proceedings in India can continue, even if insolvency proceedings have been initiated against the corporate debtor in other countries. However, if insolvency proceedings have been initiated against the corporate debtor in India, a moratorium on commencing or continuing legal actions against the corporate debtor would be imposed upon admission of the insolvency application.

Local law supremacy

The suggestions of the report give the proceedings of IBC precedence which means that if insolvency proceedings under IBC are initiated, any foreign proceeding recognized by NCLT must not conflict with the proceeding governed by the IBC. NCLT has the power to alter or cancel reliefs to make sure that coordination and consistency are being maintained with the provisions of IBC. Because of the broad powers granted to the NCLT, it needs to be seen how successful recognition of foreign proceedings will be in coordinating concurrent insolvency procedures.

Public policy exemption

NCLT has the discretion to not take any action under the suggested foreign insolvency guidelines if it is manifestly contrary to the public policy of India. However, the suggested draft provisions do not include the definition of ‘public policy’.

Countries that have embraced the Model Law have formed their concept of public policy based on court precedents. Singapore, for example, has not included the phrase “manifestly” in its public policy exception. As a result, when the first case under the insolvency legislation occurred, the Singapore High Court decided in the matter of Zetta Jet Pte Ltd that the bar for interpreting public policy reasons is significantly higher than other jurisdictions that have embraced the word “manifestly” in their public policy exemptions.

The Indian courts’ approach to the interpretation of public policy is unclear at this point. It would have been preferable if the public policy exception had been explicitly defined, with an emphasis on restricting the extent of its applicability through legislation.

Procedure dilemma

To give life to the report’s recommended recommendations, supplementary assistance in the form of amendments and subordinate laws is necessary. For example, under Indian laws, concurrent hearings with other jurisdictions are prohibited. Furthermore, the guidelines also have delegated a great deal of information to the subordinate laws from the Central Government and the Insolvency and Bankruptcy Board of Insolvency. Therefore such amendments and rules and regulations must be promulgated promptly to align with the objective of the Model Law and prevent confusion in the settlement of cross-border insolvency cases.

The IBC sets tight timeframes for the resolution of insolvency proceedings, which have been repeatedly ruled to be inalienable. It is currently unknown if such stringent timelines would apply to foreign insolvency cases, and if so, how they will be properly adhered to amid numerous insolvency processes.

Conclusion

Even though there is an issue with the system, Indian officials have been working for a long time to correct its shortcomings. The Supreme Court of India ruled in the case of Macquarie Bank Limited v. Shilpi Cable Technologies Ltd that foreign creditors have the same rights as domestic creditors to start and participate in corporate insolvency resolution processes in India. Also, in the year 2000, the need for such legislation was acknowledged by the High Level Committee on Law Relating to Insolvency headed by Justice Eradi and the adoption of the Model Law was urgently prescribed. Next, the NL Mitra Committee Report of the Advisory Group on Bankruptcy Laws detailed the then-current foreign insolvency framework and repeated the recommendation for the Model Law’s implementation.

It won’t be long until we see a complete law based on the concept of the Model Law being implemented in India, but the issue is whether it will be able to address the present problems or generate new ones. Nations adopting the Model Law face several persistent problems, such as identifying the center of primary interests and consolidating the numerous local insolvency legislations of various countries. Only time will tell if Indian courts will be able to overcome these obstacles and give consistent interpretations.

Whether there are obstacles or not, enacting foreign court insolvency regulations in the country will go a long way toward ensuring that jurisdictions work together to resolve cross-border insolvency matters successfully. Not only that, but it would make doing business in India even simpler by boosting foreign investors’ confidence in Indian rules and will showcase India as an attractive investment destination.

References

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Can an Instagram live video be regarded as a dying declaration under Section 32(1) of the Indian Evidence Act, 1872

By
Rachit Garg
-
0
Supreme court of India

This article is written by Sahaja, from NALSAR University of Law, Hyderabad. The article tends to answer the question of whether an Instagram Live video can be regarded as a dying declaration under Section 32(1) of the Indian Evidence Act.

Introduction

A dying declaration is a testimony that would normally be considered hearsay but may be allowed as evidence in criminal law proceedings under common law because it represents the last words of a dying person. This is based on the maxim nemo moriturus praesumitur mentiri — “no-one on the point of death should be presumed to be lying”. In Indian courts, dying declarations are admissible as evidence if the dying person is aware of his or her danger, has given up hope of recovery, the dying person’s death is the subject of the charge and the dying declaration, and the dying person was capable of a religious sense of accountability to his or her killer. 

One of the most important questions raised with respect to dying declarations is whether declarations on social media or on live videos are and can be considered as dying declarations? In a recent incident, a rapper in Los Angeles was broadcasting a live video in his car when he was shot to death. In cases such as these, will the live video watched by many be considered as a dying declaration of evidentiary value? 

Section 32(1) of the Evidence Act

Section 32 of the Indian Evidence Act, 1872 deals with situations involving people who are deceased or cannot be found. According to Section 32(1), when a person makes a statement about the cause of his death or any of the circumstances of the transaction that led to his death, and the cause of that person’s death is called into doubt and the dead person cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the court unreasonable the dying declaration is used as evidence. 

It was held by the Supreme Court in the case of Ulka Ram v. State of Rajasthan, (2001) that “when a person makes a statement as to the cause of his death or as to any circumstances of the transaction which resulted in his death, in case the cause of his death is in question is admissible in evidence, such statement in law is compendiously called a dying declaration.” The facts of the case are that on the night of May 6/7, 1994, Nonji (PW1) filed a complaint with the in-charge of the police station Bheenmal alleging that while he was at the Chakki of Tararam around 11.30-12.00 a.m., he heard a voice raising the noise saying “Mare Mare” from the side of the appellant’s house. When the informant heard the ruckus, he rushed out of the Chakki and saw Smt. Parveena, the appellant’s wife, ran out of her house in a blaze. She had torn her garments and was sitting naked. After a while, the appellant also emerged from his home. When questioned, Parveena stated that the appellant burned her by sprinkling kerosene oil on her. The police began their inquiry after filing a complaint under Sections 324 and 498A of the Indian Penal Code, 1860. The charge was modified to Section 302 IPC after Parveena, who was admitted to the hospital, died on 8.6.1994 and the appellant’s daughter died on 2.7.1994.

Some of the different forms of dying declaration considered by the courts under Section 32(1) of the Evidence Act are:

  • A deathbed pronouncement cannot be thrown out only because it is not recorded in question-and-answer format. A statement recorded in the narrative may be more natural because it provides the victim’s account of the incident.
  • Signs, gestures, and nods, whether simple or complicated, can be considered as a dying declaration as far as it serves the purpose of evidence. 
  • The declaration made in any language will be considered a valid declaration. If made in a regional language, this particular piece of information cannot be discarded. 
  • When the declaration or statement is made by a person who is mentally unsound or unaware of surrounding situations the statement is not given weight by the court. 

Dying declaration as an evidence

The dying declaration is undeniably admissible under Section 32, and because it is not made under oath, its truth cannot be verified through cross-examination, the court must scrutinise and circumspect the statement before acting on it. The court must be convinced that the death was in a sound state of mind to give the statement after having a clear opportunity to watch and identify his assailants and that he was speaking freely and without fear of retaliation. If the court is satisfied that the dying declaration is true and voluntary, the conviction can be established without more evidence. 

It was held in Sant Gopal vs. State of U.P. (1995) that evidence of a dying declaration is admissible not only against the person who caused death but also against those people who were involved in the death.

The Supreme Court laid down principles with respect to a dying declaration in the case of Kushal Rao v. State of Bombay,(1975). These principles are:

  • That it is impossible to establish as an absolute rule of law that a dying declaration cannot be used as the only basis for guilt unless it is backed up by evidence
  • That each case must be decided on its own facts, taking into account the circumstances surrounding the deathbed pronouncement
  • That it is impossible to state categorically that a dying pronouncement is a weaker type of proof than other types of evidence
  • That a dying declaration is treated the same as any other piece of evidence and must be considered in light of the circumstances and in accordance with the principles guiding evidence weighting
  • That in order to determine the reliability of a deathbed declaration, the court must consider factors such as the dying man’s opportunity for observation
  • That a dying declaration recorded in a proper manner by a competent magistrate, that is, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration based on oral testimony, which may be subject to all the flaws of human memory and character.

Dying declarations play a huge role and carry the most significance when it comes to deciding a rape case. For example in the Nirbhaya case, the dying declaration made by the victim played an important role in convicting the accused. In this case, while travelling with a friend on a bus, a girl was violently raped by six people. Her intestines had been torn from her body. They were both dumped on the side of the road and left to die. They were taken to the hospital for treatment. She issued a dying declaration in which she called for justice and named her assailants before succumbing.

Exceptions 

Certain kinds or forms of a statement cannot be considered as a dying declaration some of these are:

  • If the deceased’s cause of death is not in dispute: If the deceased made a remark before his death about anything other than the cause of his death, that statement is not admissible in evidence.
  • The declarer must be a competent witness. A remark made by a minor or a person of unsound mind cannot be considered as a valid dying declaration
  • An incomplete and inconsistent dying declaration cannot be considered as a piece of evidence.
  • It is irrelevant if the deceased’s comment is not about his death but about the death of another.

Social media and dying declaration

One important question that creeps up into everyone’s mind in the digital age is whether dying declarations made on social media, either written text or audiovisual recordings can be considered as dying declarations under the Indian Evidence Act. In a recent case, a 38-year-old man in Uttar Pradesh’s Jhansi district posted his dying declaration on a social media site and ended his life by consuming poison. He stated that his father-in-law, mother-in-law, and sister-in-law had been harassing him for a long time, causing him to become depressed and eventually commit suicide. This video posted by him was indeed used and considered to interrogate the family members and to investigate more about the suicide. 

In the very famous case of the suicide of Sunanda Pushkar, the messages sent by her via social media and the mails were used as dying declarations by the Delhi High Court. In this case, the autopsy report of Pushkar revealed that the death was due to an unnatural cause. Shashi Tharoor who had found her body was suspected to be involved in the death of his wife, Pushkar. Following this, a charge sheet was filed against him by the Delhi police. And he was charged with abetment to suicide of his wife and marital cruelty under Sections 306 and 498A of the Indian Penal Code.

Instagram live video

When someone watches a video on the Internet, they employ streaming as a form of data delivery. It’s a method of delivering video content in little chunks, usually from a remote storage site. Client devices don’t have to download the complete video before starting to play it because only a few seconds of it is sent over the internet at a time. The term “live streaming” refers to video that is delivered over the Internet in real-time rather than being captured and saved first. Live-streaming is now possible for TV broadcasts, video game streams, and social networking content. 

Instagram live allows users to broadcast live videos to their followers as part of Instagram stories. Going live requires only a few steps from the Instagram stories camera, and once the user is finished broadcasting, the video will vanish (unless saved or posted on the Instagram page) as soon as the stream ends, perhaps encouraging more Instagrammers to join and feel more comfortable uploading live material.

new legal draft

Can a live video be considered as a dying declaration

A dying declaration can be recorded by anyone. But such a recording of a dying declaration will be more credible and be given more weightage if it has been recorded by a magistrate. The Delhi High Court held in State v. Ram Singh (2013) that a clear and confirmed deathbed declaration cannot be disregarded just because it was recorded by a police officer. Going by this precedent, an Instagram live video that is screen recorded by a viewer or downloaded by the owner can be regarded as a dying declaration under Section 32(1).

According to a crime branch department of the Odisha Police, video and audio recordings can be used as a dying declaration. Certain principles that used case laws as precedents were also laid down in the circular to prove the credibility of such audiovisual recordings. 

The court admitting the live video as a piece of evidence must be sure to cross-examine and check the truthfulness and the credibility of the statement made in the video. The court should also make sure that the statement made is regarding the dying person and not someone else in order to consider it as a legitimate dying declaration. 

In Emperor vs. Abdulla (1885) it was held that the conduct to be relevant as dying declaration, must be related to 

  • The cause of death;
  • Circumstances of the transaction; and
  • And death must have been a result.

Therefore, while dealing with a live-streamed video, the court needs to take into account the above conditions as well. 

An Instagram live video can be discarded as not admissible as a piece of evidence under Section 32(1) of the Indian Evidence Act if the dying declaration by an incompetent person (minor or mentally unsound) is mentioned in this article previously. The M.P. High Court held in Amar Singh v. State of Madhya Pradesh (1996), that the dying declaration was not reliable without proof of mental or physical competence.

Any kind of gesture or sign made in a live video that prompts and directs to the cause of the person’s death can be considered as a dying declaration. But such a gesture if made under the influence of someone else, prompting, imagination or tutoring cannot be a strong reliable declaration. Thus, the video needs to be scrutinized and cross-examined around the facts and circumstances. 

A  statement or declaration made, must be directly and proximately related to the death for it to be considered as a dying declaration. The same rule applies in the case of Instagram live videos that are recorded, stored, or downloaded. 

The Madras High Court’s Madurai bench has urged in the case that technology be used to assist courts in recording dying declarations, noting that audio clippings and videos should be used in addition to the current practice of having a doctor and a magistrate present when such declarations are recorded. The court emphasised that under Section 32 of the Evidence Act, even a common man can video and audiotape an incident, and such pieces of evidence are admissible in court and urged trial courts to collect such evidence wherever possible. 

According to the Supreme Court, in the case of Naresh Kumar v. Kalawati & Others, (2021) it was observed there can be “no hard criteria or yardstick” for accepting or rejecting a deathbed pronouncement, which might serve as the sole ground for conviction if it is made voluntarily and inspires faith. The Supreme Court stated that if there are contradictions in the dying declaration that raise issues about its honesty and trustworthiness, the accused must be given the benefit of the doubt.

Conclusion

The dying statement is a significant piece of evidence since it contains the final words of the person dying associated with the causes of death of such person or the situation leading to such person’s death. Every effort should be made to keep it free of any impurities. A dying declaration is admissible in court because it is assumed that no one who is about to enter the presence of his maker will do so by lying. However, the individual making the proclamation must be certain of his or her impending death. The dying declaration will not be considered if he believes he’ll die tomorrow.

A dying proclamation is admissible just because it was uttered in the heat of battle. In India, Section 32(1) of the Indian Evidence Act explains its admissibility. 

As mentioned in this Article and held by the Courts in the above-mentioned cases, it is evident that there is no pigeonholed category of what is admissible as a dying declaration. The declaration only needs to meet certain requirements and must satisfy the court that it can be considered as a piece of admissible evidence against the case. Therefore, an Instagram live video can be regarded as a dying declaration under Section 32(1) of the Indian Evidence Act. 

References

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