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The need and importance of the Advocates (Protection) Bill, 2021

By
Sneha Mahawar
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0
Advocates
Image Source: https://rb.gy/fh5hju

This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the need and the importance of the bill thereby providing suggestions for the effective implementation of the bill.

Introduction

Advocates play a quintessential role in the pursuit of justice in this country, but often they face indefinite hurdles in their endeavours. To that end, on 2nd July 2021, the Bar Council of India issued the draft of the Advocates (Protection) Bill, 2021,  (hereinafter referred to as the “Bill”) which could be much-needed security for the legal fraternity. The Bill aims to protect the advocates not only in terms of physical protection but also provides financial security.

Constitutional provisions

The Constitution of India provides the right to freedom guaranteed under Article 19 of the Constitution of India to every individual irrespective of their role in society. The framers of the Constitution considered Article 19 as one of the vital rights for the people of the country. Lawyers like any other citizens are provided with freedoms of expression, speech, belief, association, and assembly. It means that they have the right to participate in public opinion and matters concerning the law, the administration of justice, protection of human rights, to indulge in meetings or association in any form of local, national, or international organisations without any professional restrictions. While exercising these rights, the lawyers have to conduct themselves as per the law and maintain the recognised standards and ethics of the legal profession. 

Further, the Indian Parliament has also passed the Advocate Act, 1961 (hereinafter referred to as the Act) to provide a legal framework for legal practitioners and guidelines for the establishment of the Bar Council and an All India Bar Association. This Act provides a combination of all the legal system laws into a single document. In the case of O.N.Mohindroo v. The Bar Council of Delhi and others (1968), the Supreme Court stated that the Advocate Act is an essential part of the legislation dealing with persons entitled to practice in the Supreme Court, the High Court, or any other courts. Hence, this Act provides a central enactment to ensure that the advocates render their professional services without any threat, intimidation, harassment, or external influence to achieve the ultimate cause of the administration of justice and rule of law.

Case laws

In the case of Hari Shankar Rastogi v. Giridhar Sharma, (1978) the court stated that the Bar is an extension of the system of justice and an advocate is considered as an officer of the court. The Advocate is considered as the master of an expert and is also accountable to the court and governed by the higher courts while exerting their professional service with ethics and standards. The successful discharge of justice often depends on the devices of the legal profession. Hence the lawyers placed an essential role in the legal system.

In a similar case of Ramon Services Pvt. Ltd. v. Subhash Kapoor (2001), the Supreme Court stated that the legal profession is regarded as a social elite. They have progress and development pillars not only in the sphere of law but also across the polity. Society looks upon them with respect as the lawyers have never hesitated to perform their duties and obligations in the greatest interest of mankind.

In the case of O.P Sharma v. High Court of Punjab and Haryana (2011) the Supreme Court declared that the Advocates are the officers of the courts and hence an essential part of the justice system and with their assistance, the justice system will work with full enthusiasm to uphold justice and rights of citizens. However, in the recent case of Secretary v. Ishwar Shandilya and others (2020), the Supreme Court held that the boycott or strike from the courts by the advocates was illegal and does not come under the ambit of the right to freedom of speech and expression under Article 19(1)(a). The bench also stated that the lawyers have to work in the larger interest to achieve the ultimate goal of speedy justice as recognized as the fundamental rights under Article 14 and Article 21 of the Constitution of India. While going on strike the lawyers could have assisted the courts in the disposal of the criminal trials.

Other provisions and laws

The Constitution of India under Article 39A provides that every State should secure for effective implementation of the legal system by promoting justice based on an equal opportunity by providing free legal aids. It has been seen that the advocates have also contributed to accessing social justice in every sphere of society by taking up such cases. The statutory procedure while providing free legal aid appointed advocates for defending criminal cases for judicial redressal. The Legal Services Authorities Act, 1987 was passed by the parliament of India to promote free access to legal aid among the underprivileged people if they fall under the categories provided in the provisions of the Act.

Further, the United Nations Human Rights Council, Resolution on the Independence of Judges and Lawyers provides the principle of confidentiality in lawyers’ communication with clients. The declaration states that the States has to ensure the independence of lawyers to promote and ensure the justice of human rights. Furthermore, it should help human rights defenders and journalists by actively participating and taking other appropriate measures while performing their professional duties free of interference, threat, intimidation, and harassment of any type.

Why is there a need to introduce the Bill

The followings are the reasons and objects for the need to introduce the Bill are as below-mentioned:

  1. The recent rise of assault, killing, threat, and fear caused to advocates while honestly discharging their professional duties is an alarming situation and causing discrepancies in rendering professional services to their clients.
  2. The following recent incidents of assault, criminal force, the threat caused to advocates has led to apprehension in the minds of advocates which in connection leads to delay injustice. Hence, the legislation has to look into it and provide an effective solution.
  3. There is a need to provide social security and to ensure that the necessities and requirements to the advocates as there are also rendering professional services.
  4. The recent Bill aligns with the resolution by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1990 which provides the basic principles on the role of lawyers. The Declaration states that the government has to ensure that the lawyers can perform their professional services without any hindrance or intimidation. While travelling within the country or abroad the lawyers are not faced with any threat of prosecution or any other administrative action while rendering their professional duties and standards. The Declaration also provides that the government should take action against the authorities for unlawfully threatening the security of lawyers.
  5. It has been seen that the advocates are often faced with threats from the rival parties while delivering the administration of justice.
  6. One of the essential tenets of the legal profession is the safeguarding of privileged communication between the advocate and the client. In the case where the advocate is representing detainees or arrested persons, the advocates are often questioned about the privilege of their communication to detect the alleged crime, however, this is against the basic principle of the legal profession. Hence, this requires immediate attention by the legislature and safeguard the Advocates interest.
  7. The Bill provides to address the following concerns and issues of the advocates and provide the effective measure to achieve the above objectives.

Essential provisions under Advocates (Protection) Bill, 2021

The main purpose of the Bill is the protection of the advocates and their functions while dutifully discharging their duties. There are a total of sixteen sections in the whole Bill. The following are the essential provisions provided in the Bill:

  1. Section 2 of the Bill talks about the definition of “Advocate” as mentioned in Section 2(1)(a) of the Advocates Act, 1961 which means an advocate entered in any roll as per the provisions of the said Act.  
  2. Section 3 of the Bill talks about the “punishment for offences” which starts from six months and extends up to five years and can be up to ten years for the subsequent offence.
  3. Section 4 of the Bill talks about “compensation” which starts from Rs. 50,000 and extends up to Rs. 1,00,000 and can go up to Rs. 10,00,000 for the subsequent offence.
  4. The Bill provides the speedy remedy for any offence punishable, registered, investigation of any case under Section 3 shall be completed within thirty days from the date of the registration of the first information report.
  5. In case if the advocate is under the threat of being a victim of any act of violence while rendering professional services, under Section 7 of the Bill such Advocate should be provided with police protection for the duration as per the court declaration.
  6. The advocate while pleading before the court should be treated as per with other officers of the institution.
  7. The Bill provides for a three-member committee for redressal of grievances of advocates and Bar associations at every level of the judiciary. The Bill entails the committee with the power to issue appropriate directions, suggestions to the concerned police officers or the appropriate government authority for the redressal of grievance by the advocate or the bar association.
  8. The government has to ensure and recognise that all the communication and consultations between the lawyers and the client while rendering the professional device are protected. And also that the lawyers are free to associate and express their view in any association. Moreover, the lawyers are free to promote their education, training and protest their rights, duties, and privilege without any external interference. However, such rights should be exercised within the conduct of their legal professionals.
  9. Section 11 of the Bill plays a key role in the whole Bill as it provides for the “protection from illegal arrest and malicious prosecution of advocates”, which states that no police officer should arrest an advocate or investigate a case against an advocate without the specific order of Chief Judicial Magistrate.
  10. The Bill also provides financial assistance to all the needy advocates of the country during times of any unforeseen situation for instance in the case of an epidemic or any other natural calamities. The Central or the State government should at least provide an amount of fifteen thousand to the needy advocates till the end of the specific situation. The Bill also provides for insurance, medical claim, and loan facility for the Advocates. 

Suggestions

It is essential to note that the Bill covers all the aspects of unwarranted issues and concerns that hinder the process of justice thereby adversely affecting the advocates to carry out their duties. However, the Bill fails to recognise the issue of receiving fees from the clients while rendering their professional service. The non-payment of bills by the clients leads to multiple unpaid bills in the hands of advocates thereby affecting their livelihood. Hence, a provision providing a mechanism for collection or receiving of fees in a case where the client denies to pay should be incorporated.

Conclusion

The Advocates Protection Bill ensures adequate protection to the members of the legal fraternity so that they can render their professional service without justice being delayed. The Bill claims to be the protection of advocates and the removal of hurdles and also provides various assistance and facilities for the execution of their responsibilities. However, the effective implementation of this Bill will be seen in the times to come. 

References

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Scope of Res Sub Judice: analysis with case laws

By
Oishika Banerji
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0

This article has been written by Zeeshan Ahmad, pursuing the Certificate Course in Advanced Civil Litigation from LawSikho.

Introduction

Section 10 of the Code of Civil Procedure 1908 provides for the provision of Res Sub judice. It provides that no Court shall proceed with the trial of any suit which is already instituted in a competent court and involves the same parties and that the matter in issue in the subsequent suit is also directly and substantially in issue in the previous suit. This article discusses the scope of Res Sub-judice, the essential conditions required for its application, and its relevance through analysis of case laws. 

Nature and scope

The rule in Section 10 is intended to prevent courts of competent jurisdiction from simultaneously entertaining and adjudicating two parallel litigations involving the same cause of action, same subject matter, and similar relief. The legal policy is to limit a plaintiff to a single lawsuit, avoiding the possibility of two contradicting decisions from the same court on the same issue.

The important terms in Section 10 are “the matter in issue is directly and substantially in issue in a previously instituted suit”. Hence, where the topic under controversy is the same, then only Section 10 applies. When it isn’t the same, the section isn’t applicable. The purpose of this clause is to safeguard a person from several legal proceedings and to prevent a conflict of decisions. It also tries to minimise the parties’ discomfort and to give effect to the law of res judicata.

Essential conditions for the application of this provision

  1. Two suits- There must be two suits, one previously instituted and the other subsequently instituted.
  2. Directly and Substantially- The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
  3. Same parties- The parties involved in both the suits must be the same.
  4. Jurisdiction of Court- The previously instituted suit must be pending in a court in India or a Court beyond the limits of India but established or continued by the Central government of India.
  5. Competent Court- The Court in which the previous suit is instituted must be competent and have the jurisdiction to grant the relief claimed in the subsequent suit.
  6. The same title- The parties involved must be litigating under the same title.

The fundamental aim or nexus underlying this section is to bring the action to a close, to avoid harassing the defendant, to avoid squandering the court’s resources, and to avoid delaying the court’s proceedings. The fundamental goal of this Section, according to the case of Guru Prasad v. Bijay Kumar, is to eliminate the conclusion of two conflicting rulings on the same topic. However, it would not be against this Doctrine if the two suits were dealt with concurrently by a single Court in order to deliver justice.

Any suit can be filed in a foreign court in line with the jurisdictional limitations, and the same can be filed in Indian courts if the matter requires judgement under Indian law, which must also be done within the jurisdictional limits. The fundamental goal of this section is to prevent a person from filing repeated lawsuits against the same individual in the same matter, resulting in inconsistent decisions in each suit. It also protects the defendant from being harassed for no reason.

Directly and substantially in issue

This means the subject matter in both suits must be the same. For example, A sues B for misrepresentation throughout the contracting process. He also launches a breach of contract lawsuit against B. Because the issues at hand are not the same, Section 10 of the Code of Civil Procedure, 1908, will not apply. This doctrine cannot be applied if the essential of having issues that are directly and substantially related is not met.

The same was established in the case of Mathew &Anr v. Sony Cyriac in respect to criminal prosecution and redemption of money for a dishonoured cheque. The court unanimously concluded in Manohar Lal Chopra v. Sait Hiralal that this section of the Code must apply mandatorily, with no exceptions, unless and unless the Court lacks jurisdiction authority or the power to award relief in a subsequent suit. In the case of Escorts Const. Equipment Ltd. v. Action Const Equipments Ltd., 1998, the requisites for invoking Section 10 were repeated. This section’s provisions are exhaustive. They include explanations as well as detailed and clear interpretations. These requirements are not optional; they must be followed by the Courts when they proceed with the trial of a case. The provisions in Section 10 are very clear and unambiguous, with an open forum for interpretation, in order to decrease the number of lawsuits involving the same subject matter and issues.

Exceptions to Section 10 of CPC

Because it is quite precise in its content and begins with the words, No Court shall proceed with the trial of any litigation, this Section shall only be utilised to stay or restrict the trial of a suit. As a result, it has been decisively established that it solely applies to the trial and not to any other relevant actions. If the matters in the issue are distinct and not directly similar but different, Section 10 of the Code of Civil Procedure, 1908, cannot be invoked.


In the case of Abdur v. Asrafun, it was held that even if there are a few common or similar difficulties, but there are other matters that are completely distinct from the previous suit, Section 10 cannot be invoked. This Section is not applicable for litigation where the parties are the same in both suits but the matter in question isn’t the same in both suits, as explained in the case of Manzar v. Rema. 

There is no bar or stay of proceedings when a subsequent suit or an earlier suit is filed in a foreign court that is not created or under the control of the Central Government of India or the Supreme Court of India. Interlocutory or any Interim Orders are also well-established exceptions to the Res Subjudice Doctrine. Even without proceeding with the trial, some orders are passed, and such orders cannot necessarily involve Section 10. This demonstrates that Section 10 and the Doctrine of Res Subjudice can only be used to stop trials and cannot be used to stop other interim orders made by the Court of Law. In the case of Sennaji Kapuechand v. Pannaji Devachand, this was strongly established.

The inherent power of the court to stay suits

The courts have the authority to issue an order to stay later litigation if it meets the provisions of this section. However, this Section does not preclude the Court’s inherent powers, which are protected under Section 151 of the Code of Civil Procedure. Even though a suit does not fall under Section 10 of the Code, the courts can use their inherent powers to stay the suit in order to better serve justice.  The Courts may also issue an order to stop the former suit under Section 151 of the Code, which is not available under Section 10 of the Code. This Inherent Power of the Court can also be thought of as an exception to Section 10 of the Code as well as a court’s particular right. Under Section 151, the Court has also the inherent power to consolidate substantially similar matters between the same or different parties as per the relevant circumstances.

Suit pending in foreign court

The explanation clause of Section 10 clearly states that an Indian court’s power to try a subsequently instituted suit is unaffected if the earlier instituted suit is pending in a foreign court. This also means that the cases can be heard in two courts at the same time.

The goal of Section 10 is to prevent two courts from making inconsistent conclusions in the same case. To get around this, the courts can require the two lawsuits to be consolidated. It was explained in the case of Anurag and Co. and Anr. v. Additional District Judge and Others that consolidation of suits is ordered under Section 151 for the purposes of meeting the ends of justice since it saves the party from several proceedings, delays, and expenses. The parties are also relieved of having to produce the same evidence twice.

Effect of contravention

A decree issued in violation of Section 10 is not null and void and, as a result, cannot be ignored in execution proceedings. Only the trial, not the filing of a subsequent suit, is prohibited under this provision of Section 10. As a result, it establishes a straightforward procedural norm that can be waived by the parties. As a result, if the parties expressly relinquish their right and ask the court to proceed with the second litigation, the validity of the subsequent proceedings cannot be challenged later.Landmark cases

  1. Dees Piston v. State Bank of India

In this case, the petitioner already had his matter pending in the District forum, Jaipur with the same subject matter and between the same parties. The National Consumer Redressal Commission held that when an issue is pending before a competent court of law, the National Commission has no competence to accept a petition in respect of an identical subject matter under the Consumer Protection Act. It noted that it is open for the petitioner to raise all the contentions in the District forum itself where the matter is already pending. The Commission reiterated that when a matter is subjudice in a competent court, this commission shall not interfere and entertain identical subject matter between the same parties, and the doctrine of Res sub-judice will apply.

2. Anurag and Co. and Anr. V. Additional District Judge and others

A matter was pending before the Additional District Judge, Sikar in which the plaintiffs filed four separate civil suits against a common defendant for the recovery of a different amount, due on different dates in favour of four different plaintiffs. The defendant was common. The defendant prayed for the consolidation of all four matters. The Additional District Judge observed that the four different civil suits for recovery of money cannot be consolidated as the plaintiffs are different, cause of action, and amount are different. The suits cannot be consolidated merely on the ground that the defendant is common.

The matter reached Rajasthan High Court and the court observed that under section 151 of the Code, the consolidation of actions is considered in order to assist justice and fairness to both parties. It also safeguards the party from a plethora of cases, delays, and frivolous litigation. The parties are also relieved of having to present the same evidence twice. However in the given situation when there is no substantial similarity between the parties and issues involved, and even the cause of action arose on different dates and the burden of proof lies on different plaintiffs, and also the matter is pending before the same court, the Court formed the view that there exists no relevant circumstance for consolidation and the non- consolidation by the Additional District Judge does not defeat the purpose.

3. Maharashtra State Co-Operative v. Indian Bank

The point of issue, in this case, was whether the doctrine of res sub-judice will apply to summary suits under Order XXXVIII of the Code of Civil Procedure 1908. In this case, Indian Bank filed a summary suit for the recovery of a particular amount. In the same suit, Maharashtra State Cop. Marketing Federation, the other party, objected to staying the suit as the matter was directly and substantially in issue in a previous suit filed in 1991 which was already pending.  The Court held that where the matter is ongoing before the appropriate court and the subject matter is directly and essentially the same in a previously launched suit between the same parties, the Civil Court should not proceed with the trial of the complaint in order to give the relief sought.

4. National Institute of Mental Health & Neuro Sciences v C Parameshwara, 2005

The issue was whether a previous suit filed under Section 10 read with Section 151 of the Code of Civil Procedure 1908 seeking a stay of civil suit was maintainable. The Court held that the purpose of this clause is to avoid courts of concurrent jurisdiction (in some situations, more than one court may have jurisdiction to hear a dispute) from hearing two parallel litigations in relation to the same dispute at the same time. However, the whole subject matter has to be identical. Section 10 is preferable to a suit instituted in a civil court. The scope of a Writ petition is entirely different from a normal civil suit. The Court also observed that the inherent power under Section 151 cannot be exercised to nullify the provisions of the code.

Conclusion

Res Sub-judice is the provision given in Section 10 of the Code of Civil Procedure 1908 to stay or put an injunction on a subsequent suit if the matter in the subsequent suit is directly and substantially in issue in a previously instituted suit between the same parties before a competent court. The essential elements which are necessary to be met before the application of Section 10 are that the parties in both the suit (previous and subsequent) must be the same, the matter in both the suit must be directly and substantially the same, the previous court must be competent to provide the relief claimed, and that the parties must be contesting under the same title. The purpose of the provision of res-subjudice is to avoid multiplicity of proceedings and save the resources of the court and the parties and also to avoid a situation of inconsistent rulings in cases related to the same issue. The Court can pass interim orders such as temporary injunction, attachment orders, amendment of plaint or written statement, the appointment of a receiver, etc. There are certain exceptions to this provision as well; that if the matter is pending before a foreign court, the parties can move to Indian courts to get relief. There is no bar on the competency of Indian Courts to try as suit if the suit is previously sub judice in a foreign court.  Also, the Code of Civil Procedure 1908 provides some inherent powers under its Section 151 under which the Court can stay the proceeding in a subsequent suit even when the essentials of Section 10 are not strictly met, to serve the ends of justice Similarly the Court has inherent power to consolidate different suits between the same parties when the matter in issue is directly and substantially the same.

Reference

  1. https://lawcirca.com/what-is-the-rule-of-res-sub-judice-under-cpc/.

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

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M/S. Hamdard Laboratories (India) v. M/S. Sterling Electro Enterprises : a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996

By
Rachit Garg
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0
Judicial interpretation in arbitration
Image Source: https://rb.gy/l7mswr

This article is written by Vanya Verma, from Alliance University, Bengaluru. This article talks about the famous case of M/S. Hamdard Laboratories (India) v M/S. Sterling Electro Enterprises. Further, this article covers what these companies are involved in and then the facts, issues, and judgement of the case.

Introduction

In the case of, M/S. Hamdard Laboratories (India) v M/S. Sterling Electro Enterprises, the parties agreed in their arbitration agreement that the court of law in Delhi would have exclusive jurisdiction over the issues, and so, the petitioner argued, the parties had consented to designate Delhi as the seat of arbitration as a natural corollary. The respondent, on the other hand, maintained that the parties never agreed on a seat of arbitration in their agreement, and so the ‘Court’ within the meaning of Section 2(1)(e) of the Arbitration and Conciliation Act,1996,  would have jurisdiction at Aurangabad, Maharashtra. As a result, a question before the Single Bench of the Delhi High Court emerged as to whether it has the territorial jurisdiction to hear the instant petition under Section 11(6) of the Arbitration Act. To know further, we will understand the background of these two companies: Hamdard laboratories and Sterling Electro enterprises to get a clear picture of what these companies deal with and then the facts, issues, and judgment of the case.

About Hamdard laboratories, India

In 1906, a small Unani clinic was established in one of the famous old Delhi’s back alleys. “Hamdard,” which means “sympathy for all” and “pain sharing.” Hakeem Hafiz Abdul Majeed, a well-known Unani practitioner at the time, was the mastermind behind it. The crusading Hakeem’s main idea was to break away from the previous practice of each practitioner manufacturing medications and distributing them solely to his patients, based on his own highly guarded formulations.

To attain his goal he wanted a large number of people benefiting from the time-tested efficacy of Unani medicines, Hakeem Abdul Majeed believed it was necessary to manufacture Unani pharmaceuticals on a larger scale. Indeed, Hamdard grew and prospered, and the company’s brand became synonymous with integrity and high quality in the relatively inexpensive Unani medications sector.

Hakeem Abdul Hameed’s exemplary life covered nearly the entire twentieth century. He brought the dynamism of a new age to Hamdard’s ideology and operation via sheer hard labour, ingenuity, innovation, and a strong will to march with changing times. For the first time, the Unani system of medicine was brought into line with modern scientific lines by the establishment of modern laboratories and the submission of numerous medications to laboratory tests. As a result, Hamdard emerged as a renowned pharmaceutical firm with a nationalist motivation and a completely indigenous base and a mission dedicated to serving society as a whole.

Today, Hamdard (Wakf) Laboratories is one of India’s largest health and wellness firms, with a range of over 600 natural and herb-based products.

Hamdard has one of the largest Unani GMP certified and ISO 9001 facilities in the world, with three manufacturing locations in India: Manesar (Haryana), Ghaziabad (Uttar Pradesh), and Okhla (Delhi). With a sales force of 300 people and a network of over 500,000 shops, Hamdard sells its products all over India.

About the company, Sterling Electro Enterprises Pvt. Ltd

Sterling Electro Enterprises Pvt Ltd began as a sole proprietorship corporation called Sterling Enterprises in Mumbai, India in 1992, and was then incorporated as a private limited company in 1996. The company has expanded across India, with subsidiaries in Ahmedabad and Bengaluru, with headquarters in Mumbai.

In the year 2014, they also stretched their horizons to Southeast Asia. Sterling Electro Enterprises Pvt Ltd is a prominent Electrical and Instrumentation contracting business in India, offering superior Engineering-Procurement-Construction (EPC) contract solutions that include supply, erection, testing, and commissioning by project execution experts.

Automobile, Aeronautical, API, Breweries, Beverages, Chemicals, Distilleries, FMCG, Food, Fertilizer Plants, General Manufacturing, Hospitality, Information Technology, Infrastructure, Oil & Gas, Pharmaceutical, Paints, Petrochemicals, Refineries, Soaps & Detergents, Tyre and Texti are among the industries for which they provide Engineering-Procurement-Construction (EPC) contract solutions.

With steady revenue growth and a skilled workforce backed by cutting-edge technology, their vision is to be a global leader in integrated electrical and instrumentation services, delivering best-in-class services in a culture where everyone is committed to a healthy workplace environment and long-term project management.

Facts of the case

The petitioner in this case is Hamdard Laboratories India as mentioned earlier it is a company that specialises in the production of Ayurvedic and Unani pharmaceutical while the respondent, Sterling Electro Enterprises, is an electrical instrument contracting company.

On November 22, 2017, the petitioner issued a young inviting bid. It was given to a unit in Aurangabad for completing electrical installation work. The respondent’s bid was accepted and a contract was signed on March 1, 2018. It was signed for a total value of Rs. 6,67,00,061.18 between the parties. The petitioner paid Rs. 1,66,75,015 to the respondent on March 3, 2018.

According to the Work Order, the respondent was required to complete the trade-in within 10 months and ensure the delivery and installation of electrical equipment. In December 2018, the respondent purchased electrical fittings to be used at the project site for Rs. 47,06,00,000 against invoices, but these fittings couldn’t be installed at that time because certain engineering work was left pending at the project site and took precedence over electrical installations. In response to the petitioner’s request that the respondent can commence work only on May 10, 2019, the respondent told the petitioner that it was unwilling to figure for an equivalent rate as stated in the Work Order of March 1, 2018. Instead, the respondent requested that the petitioner reexamine the agreement, requesting a 19% price increase on the costs indicated in the Work Order, but the petitioner was only willing to provide a 5% increase. The petitioner cancelled the Work Order on August 28, 2019, when the respondent refused to accept the current counteroffer, and requested the respondent to return the electrical fittings. The petitioner also invited the respondent to amicably settle the dispute and requested a refund of the advance amount of Rs. 1,66,75,015 given by the petitioner.

When issues emerged between the parties, the petitioner claimed that he tried to address them amicably, but the respondent did not respond. As a result, the petitioner requested arbitration. The petitioner claims that because the article expressly states that only “the Courts of law at Delhi” have jurisdiction, it is a necessary corollary that the parties agreed to designate Delhi as the seat of arbitration and that this Court has exclusive jurisdiction to hear this petition under Sections 7 and Section 11 of the Arbitration and Conciliation Act, 1996.

Thus, a petition was filed under Section 11(6) of the 1996 Act, requesting the appointment of a sole arbitrator to resolve disputes between the parties arising from the March 1, 2018 labour order (“Work Order”).

The Respondent contested the maintainability of the current Petition, claiming that the Court lacks territorial jurisdiction to hear the case because the cause of action did not originate in Delhi and the parties never agreed to have the arbitration in Delhi. The Respondents also claimed that because the agreement did not specify a seat of arbitration, let alone identify Delhi as one, the Petitioner was required to approach the Court  within whose jurisdiction the cause of action had arisen according to Section 2 (1)(e) of the 1996 Act read with Sections 16, 17, 18, 19 and 20 of the Code of Civil Procedure, 1908 (“CPC”)

The respondent further contended that since the parties had not agreed on a seat of arbitration, any petition under Section 11 of the Arbitration and Conciliation Act could only be filed in Aurangabad, where the entire cause of action occurred, because the work order was issued there and the contractual work had to be completed there.

Issues involved in the case

  1. Whether a sole arbitrator can be appointed to adjudicate the disputes between the parties under Section 11(6) of the Arbitration and Conciliation Act, 1996?
  2. Whether the Delhi High Court has territorial jurisdiction to decide the case?

Judgement of the case

When the parties herein had expressly stated, within the arbitration clause itself, that the Courts of Delhi will have the jurisdiction over all arbitration proceedings arising out of the Work Order of March 1, 2018. The Court stated that the parties agreed to hold the arbitration in Delhi, therefore the respondent’s claim that this Court lacks territorial jurisdiction to hear the current petition stands with no merit. It was agreed that the sole arbitrator for the dispute between the parties would be Hon’ble Ms. Justice Rekha Sharma.

It is also worth noting that, while distinguishing the judgement of a single bench of the Delhi High Court in the case of Aarka Sports Management Private Limited v. Kalsi Buildcon Private Limited, (2020) the Single Bench of the Delhi High Court held that the parties in Arka Sports did not provide for the exclusive jurisdiction of the Delhi courts in respect of arbitration. Rather, the petitioner, in that case, relied on the jurisdiction granted under the “Governing Law, Jurisdiction and Dispute Resolution” clause in the agreement, which was only a general stipulation on dispute resolution and not a part of the arbitration clause, as in the instant case, where the parties have expressly provided within their arbitration clause. In this case, the Delhi High Court held that it had jurisdiction to hear the petition under Section 11(6) of the Arbitration Act.

After reviewing the arbitration clause, the Courts determined that the phrase “The courts of law at Delhi alone shall have jurisdiction” is a clear expression of the parties’ intent to provide the Delhi courts exclusive jurisdiction over all arbitrations arising out of the Work Order.

The Court further pointed out that the phrase in the Work Order is explicit, and it is obvious that Delhi has not been designated as a venue, but rather as a seat of arbitration. Furthermore, the lack of the phrase “seat” when referring to the Delhi courts does not change the fact that only the Delhi courts of law have jurisdiction over arbitration proceedings arising out of the subject Work Order.

The Supreme Court ruled that the law does not prevent parties from agreeing to confer exclusive jurisdiction over arbitration proceedings on mutually agreed, neutral seats. Even though no part of the cause of action arose in Delhi, the arbitration clause’s obvious indication of intent to confer jurisdiction on the Delhi courts nullifies the parties’ choice of Delhi as a neutral site of arbitration.

In this context, the judgement in Indus Mobile Distribution Private Limited Vs. Datawind Innovations Private Limited & Ors. was cited, in which the Hon’ble Supreme Court stated:

“In our opinion, the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary since the agreement may allow for a seat of arbitration at a location that is impartial to both parties on many occasions. As a result, the courts where the arbitration takes place would be obligated to supervise the arbitration process. For example, if the arbitration is held in Delhi and neither of the parties is from Delhi (Delhi having been chosen as a neutral location between a party from Mumbai and the other from Kolkata) and the tribunal passes an interim order under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must be filed with the Delhi courts, which are located in Delhi. This would be true even though the contract’s responsibilities were to be fulfilled in either Mumbai or Kolkata, with solely arbitration taking place in Delhi. Both the court in whose jurisdiction the subject-matter of the litigation is located and the court in whose jurisdiction the dispute resolution, i.e. arbitration, is located would have jurisdiction in such circumstances.”

Further reference was made to the case of Virgo Softech Ltd. vs. National Institute of Electronics and Information Technology, (2018) in which the Court while examining an arbitration clause that provided that arbitration would be held in New Delhi but that the courts in Chandigarh would have exclusive jurisdiction over disputes arising out of arbitration. Finally, the Court concluded that once the parties had expressly granted the courts in Chandigarh exclusive jurisdiction over all arbitration proceedings, only the courts in Chandigarh would have exclusive authority to hear a petition under Section 11 of the 1996 Act.

As a result, the Court concluded that the parties intended to confer exclusive jurisdiction on the Delhi courts to resolve all disputes relating to arbitration arising out of the Work Order in question.

Conclusion

It is clear from the above case study that the arbitration proceedings were held in Delhi as held by the Delhi High Court that in the instant case had the jurisdiction to adjudicate the dispute between the parties and to entertain the petition under Section 11(6) of the Arbitration Act.

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COVID-19 and situation of prisoners

By
Rachit Garg
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0
Image source: https://bit.ly/2yH7Ytv

This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the rights of the prisoners in custody during the COVID-19 with the support of case laws and constitutional provisions. And also highlights the current situation of prisoners.

Introduction

“No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones”- Nelson Mandela.

The  COVID-19 pandemic has shown an unprecedented change in every sphere of life and it has made us realize the importance of the health and safety of each irrespective of their status in society. Every individual is envisaged with the basic rights of health, water, shelter, clothing, sanitation, food, education, etc. India’s prisoners are overcrowded with nearly 70% of undertrial prisoners. The reason for such overcrowding in prisons is due to the lack of infrastructure, health facilities, quality legal aid, financial facilities, and lack of family support. As per the Prison Statistics India Report 2019,  there has been a report of 4.78 lakh inmates in around 1300 prisons in the country. Due to the increasing rage of the COVID-19 pandemic in the world, the prisoners are the most affected people considering their social and economic sections. However, the prisoners while in custody are entitled to basic human rights as per the national laws and international conventions. The term prisoners mean any person for the time being in prison imposed by a court or has been detained in legal custody. This article highlights the recent case laws stating the measures issued by the courts and the government to protect the rights of the prisoners and other officials in the prisons.

Rights of prisoners provided in the Constitution

Article 21 of the Constitution states the protection of life and personal liberty to every individual regardless of anything as per the procedure established by law. In the case of Kharak Singh v. the State of U.P, (1964), the Court explained the term ‘Prison justice’ which means that it is the implied duty of the court and the authority to ensure that judicial warrant does not exceed to deprive a person of his life or liberty. In cases where the prison follows inhumane treatment breaching the guaranteed rights of the citizen, the courts come into the picture. In the similar case of Maneka Gandhi v. Union of India, (1978), the Court held that it is not the duty of the judiciary to intervene in the working of the State penal system. But in the case of undue harshness and torture in the name of discipline and security, there will be no immunity from courts writs. Thus, the Court made every essential point that the rights enjoyed by prisoners under A. 14, A. 19 and A. 21 are not static but will light to human heights when the unexceptional situation arises.

new legal draft

During the pandemic, the spread of the virus has affected everyone’s safety, especially the lives of the inmates and the police officers working in the prisons. We know that India has more than four lakh prison inmates and the condition of prisons is overburdened beyond optimal capacity. Hence, the basic principle to overcome the pandemic and stop the virus from spreading is social distancing and maintaining proper hygiene which is contrary in the case of prisons. The courts are the sentinel on the qui vive of the fundamental rights of the citizens in India and it is the duty of the court to lay down guidelines and strict measures to uphold the rights of the citizen. Moreover, the courts should follow the guidelines laid down in the case of Arnesh Kuman v. State of Bihar, (2014), to control and limit the authorities from arresting accused as below-mentioned:

  • To ensure that the police officers do not arrest the accused on unnecessary grounds, the Magistrate should consider the necessity for detention carefully.
  • If the accused is guilty of an offence under Section 498A Indian Penal Code, 1860 (IPC), then the court should be satisfied under the limits laid down under Section 41 the Code of Criminal Procedure, 1973 (CrPC) before arresting.
  • The checklist under S.41 CrPC must mention the reasons and materials for necessitating the arrest of the accused before the Magistrate for detention.
  • In case of non arresting the accused, the decision should be provided to the Magistrate and a copy may be extended to the Superintendent of police of the district within two weeks in writing. 
  • In case of non-failure of the direction, departmental action against the police officer can be taken place constituting contempt of court.
  • It is essential to note that the direction is not limited to S. 498A IPC or Section 4 of the Dowry Prohibition Act, 1961 but also to the case where the offence of the punishment for imprisonment for a term is seven-year or extend to seven-year with or without fine.

Right to health

The right to health is not explicitly mentioned in the Constitution of India. However, A.21 impliedly states it to be one of the essential parts of the right to life enshrined in the Constitution. In the case, Paschim Bangal Khet Mazdoor Samity & Others v. State of West Bengal,(1996), the court held that it is the State’s constitutional obligation to provide adequate medical service to the people. While providing free medical aid the State must ensure to allocate funds for medical services. The court also stated that any lapse in providing the medical service would be held liable for appropriate administrative actions by the State. Hence, it is clear that the fundamental right to health is provided to prisoners. In the case, Charles Sobhraj v. The Superintendent Central Jail, Tihar, New Delhi, (1978), the court declared that imprisonment does not mean farewell to fundamental rights. Thus, all fundamental rights are equally available to the prisoners, however, some restrictions may be imposed due to the nature of their offence. The court also stated that non-providing of the essential health facilities would lead to violation of their fundamental rights thereby, giving rise to the remedy of the courts.

Other provisions

‘Prisons/persons’ detained therein’ is a State subject mentioned under Entry 4 of List II of the Seventh Schedule of the Constitution of India. It states that the administration and management of prisons is the responsibility of respective State Governments. The Ministry of Home Affairs provides regular guidance and advice to States and Union Territories on various issues of prisons and prison inmates. Section 4 of the Prisons Act, 1894 provides for sanitary accommodation facilities for the prisoners. Section 7 of the  Prisons Act, 1894, provides for the provision of shelter and safe custody facilities to prisoners. It is also essential as per the Act that the prisoner before admission into the prison must be checked for inter-State transfer between the States. Thus, the Transfers of Prisoners  Act, by a medical practitioner. There is no specific provision in any of the Prisoners Act for 1950 that provides a legal sanction to such transfers or removals of the prisoners from one State to another or vice-versa. 

The Repatriation of Prisoners Act, 2003 provides for the transfer of prisoners from India to other countries or places outside India or receiving prisoners in India from countries or places outside India. It also states that the transfer of prisoners from India to a contracting State will not affect the power of any court to pass any judgement to review and the power of the Central Government or the State Government to suspend, remit or commute the sentence as per the provisions of law. The Model Prison Manual, 2016 mentions extensive guidelines for prisons in situations of epidemic breakout. In such a circumstance, the prison must be acquitted with permanent segregation cells and wards for every infected prisoner, overcrowding should be in check, and medical treatment of patients on regular basis.

Further, considering the increase in cases of COVID-19, the Ministry of Home Affairs had issued an advisory on March 12, 2020, for prevention and control of COVID-19 in prisons and correction homes in consultation with the Ministry of Health and Family Welfare on May 2, 2020. The following advisory provides the guidelines and protocols for the safety and security of prison inmates and jail staff. The States and Union Territories must ensure proper implementation of the guidelines and take necessary steps to disseminate the following guidelines at all levels of the Prisons. The following measures are below-mentioned:

  • To follow test-track protocol which consists of aggressive testing for prior detection of Covid-19 and accordingly timely isolation and treatment should be provided.
  • To ensure an effective mechanism for screening and risk assessment for inmates and jail staff.
  • To ensure less movement of jail inmates outside the jail thereby, updating using the video-conferencing facility for production or testimony in courts.
  • To encourage telephonic calls or meetings of the prisoners with their visitors by using a conferencing facility such as e-mulakat, a module under the e-prisons project.

Prisoners’ rights during COVID-19 

In 2020, the World Health Organisation (WHO) declared COVID-19 as a pandemic. Consequently, the Supreme Court of India took suo moto cognisance regarding the spread of the virus in prisons. In Re Contagion of COVID-19 virus in prisons (2020), the Court examined the current situation of the spreading of the virus in prisons and constituted a High Powered Committee at the State level. The committee is headed by the chairperson of the State Legal Services Authority to decide who needs to be released on interim bail or parole based on the situation based on the State. Due to the recommendation of the High Powered Committee, many inmates have been released on interim bail or parole. However, due to a reduction in the number of cases, the released prisoners have been reported to return to prison. Considering the present scenario, there is a serious concern for the requirement for effective management of the pandemic within the walls of the prison. Thus, the court issued the following measure as below-mentioned:

  • The High Powered Committee constituted in the State should release the prisoners after adopting the guidelines laid down in the Arnesh Kumar case. 
  • The High Powered Committee needs to determine the category of prisoners who should be released based on the nature of the offence, the prison sentence, severity of the offence, stage of a trial, and other relevant factors.
  • The High Powered Committee should not only release the fresh inmates but also last year inmates.
  • To provide a transparent administration by showing the status of prisoners occupancy in the prison. It is the duty of all the State and other government bodies to publish the decisions of the High Powered Committee on their respective websites to enable effective dissemination of information.

Concerns of the prisoners

Some of the prisoners are not willing to be released on parole or interim bail due to their socio-economic background and the fear of COVID-19. In such as case, the authorities should be directed to follow the below-mentioned procedures to ensure their safety concern:

  • To provide the inmates with basic knowledge about the virus and its effects.
  • To ensure proper medical facilities for all prisoners who are imprisoned through regular testing of both the inmates and the jail staff.
  • To ensure daily hygiene, proper food, and sanitation.
  • To ensure suitable precaution to prevent the transmission of the virus among the prisoners.
  • To take appropriate steps to ensure the safety while transportation of the released inmates of the prison.

Conclusion

The Supreme Court order to State governments and Union Territories is appreciated. However, there is a need for effective implementation to ensure the safety of the inmates. On October 5, 2020, the National Human Rights Commission (NHRC)  issued an advisory on the Human Rights of Prisoners and Police Personnel stating that the fundamental rights of the prisoners cannot be violated and made the recommendation. The recommendation consists of ensuring essential healthcare facilities, appropriate testing of inmates, sufficient stock of medicines, social distancing, and proper ventilation.

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Legal arena of cryptocurrency

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

This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar and have been updated by Ishan Arun Mudbidri. This article throws light on the tryst of cryptocurrency in the Indian market amidst the various regulators.

Introduction

Technology has steadily been taking over our lives by integrating into every aspect of it. It has led to a constant struggle for the regulatory authorities across the nations to maintain a balance between the traditional schemes and thriving new concepts. Currently, it exists in a constant state of development and growth and therefore it is important for the regulators to be proactive in their approach and apprehend the market dynamics in order to smoothly bring into effect the infrastructure required to support the new advancements. The world came to know about the concept of crypto currency in 2009 when people were not really bothered about it. In the later years, this term was heard on a daily basis with everybody talking about it. Many traders and investors from all over the world started taking keen interest in the crypto brand. The Indian market was also attracted to it with  Indian traders  readily willing to invest their money in crypto currencies.

The sector that has been quick to evolve is financial technology (FinTech) with the sudden popularity of blockchain and cryptocurrencies. Even with the emergence of the unprecedented pandemic, the fintech sector is on a constant rise. To this end, people are starting to get aware of these virtual currencies and have been investing their time and money in understanding its functioning as it continues to gain popularity. However,  like other world leaders the Indian Government  being skeptical about this whole crypto  brand decided to bring a bill to  put a ban on crypto currencies citing security concerns. With this bill still a draft and not being implemented as of now, the question arises whether the Indian Government should reconsider it’s decision regarding crypto currencies? 

About  cryptocurrency

Before discussing the  status of Crypto Currencies in India, we must understand the concept of Crypto Currencies and why it is attracting  global investors and traders. “Cryptocurrency”, the meaning of this word is in its name. Crypto means concealed or secret and we all know what currency means. Hence, Crypto Currency is a type of digital  or virtual currency which is concealed ,secure and impossible to counterfeit.  It is  not a physical source. Everything is online. Then, what makes crypto currency so different as there are other sources of online payments also? The main difference in crypto currency is that  a specific person can directly transfer his/her money to another person without any middleman that is a bank. One doesn’t have to link his/her money to a bank account. The banks  or any other financial institutions have no control over crypto transactions. Hence, it is said to be one of the most secure sources of payment. Amidst this Crypto currency  scenario, one name always pops up; Bitcoin.

Bitcoin

Bitcoin is the world’s first and the largest crypto currency. Bitcoin was created by a pseudonymous developer named Satoshi Nakamoto in 2009. Over the years bitcoin has made rapid growth and  thanks to the constant efforts to promote bitcoin by billionaires  especially Elon Musk, today  one bitcoin is worth ₨ 45 lakhs. So how does Bitcoin work? Bitcoin is  basically a computer file which works as a type of online currency. To buy bitcoin, one must have a wallet known as a digital wallet. This is where bitcoin or any other crypto currency  is stored. Traders buy and send money  from this wallet. This wallet is stored as a file on the computer or as an app on a mobile.  All these crypto currency transactions are stored in a record keeping technology known as Blockchain technology.

Blockchain technology

Blockchain technology is a type of database whereby all crypto currency transactions are stored. These transactions are stored in groups known as blocks. These blocks form a chain of data and hence they are known as blockchain technology. Blockchain is an especially promising and revolutionary technology because it helps reduce risk, stamps out fraud and brings transparency in a scalable way for myriad uses.  Another term which is often heard along with bitcoin and block chain  technology is Bitcoin Mining. Bitcoin mining is a concept whereby new bitcoins are entered into the market. It also helps in development and maintenance of the block chain.

Cryptocurrency : the Indian conundrum

Gradually crypto currencies  made their way into the Indian Markets and currently as we speak, there are around 7 million Indians (approximately) holding  crypto currency assets worth $1 billion.  Many countries  around the world like Saudi Arabia, Turkey have completely banned crypto currencies. Other Countries like USA, Japan, Canada have imposed reasonable restrictions regarding the same. The Indian Government  also has been skeptical about the use of Crypto Currencies. In 2018, the Reserve Bank of  India and the Finance Ministry  put out a circular  banning  financial institutions from providing services to businesses dealing in exchange/trading of crypto currencies, which put the entire Indian crypto currency  industry in turmoil. The validity of this circular  was challenged before the Supreme Court of India on grounds that this circular was a violation of Article 19(1)(g) of the Constitution of India. The Supreme Court made its decision in  Internet and Mobile Association of India v. Reserve Bank of India.

How to buy Bitcoin or any other Cryptocurrency?

Now that we know about the basics of crypto currency, how do we buy it?  There are a number of Crypto Currencies in the world apart from bitcoin. Some of them are, ethereum, litecoin, polkadot,  etc. the latest one in this list is dogecoin. In order to buy a cryptocurrency, the first step is to  have a digital wallet. Then, there are various online exchange portals where crypto currencies are bought. A person wanting to buy crypto currencies must  search for the correct exchange portals. After getting access to an exchange portal and selecting the  desired crypto currency, the next step is to enter the wallet address where the crypto must be delivered and also the amount of crypto currency needed to be withdrawn. After doing all these steps, one must double check all the details given before sending. After  sending, the person has acquired his/her first cryptocurrency.

Legal landscape

It was not long ago that India witnessed and continues to witness a massive surge in cryptocurrency exchanges. The market is untapped and unregulated with a huge capacity which is what has been attracting the masses towards it. As for India, in 2013 the Reserve Bank of India which is the apex financial authority of the country along with the government of India and other regulators took notice of this massive popularity and with the fear of potential revenue loss issued a press release to caution the public against the potential risk in dealing with virtual currencies.

RBI circular

While the report submission remained pending in 2018, RBI exercised its powers under the Reserve Bank of India Act, 1934 (“RBI Act 1934”) and Payment Settlement Systems Act 2007 and went ahead and issued a circular to entities functioning under the regulation of RBI that would prevent all commercial and co-operative banks, the small finance banks, payment banks, and Non-Banking Financial Company (NBFC) to stop dealing with the virtual currencies and providing any financial assistance or services to any entity which deals with the exchange of virtual currencies. Further, if they were already such services to their customers/entities they needed to exit such a relationship.

This acted as an indirect hindrance to stop the money flow into the crypto industry as its money exchanges essentially function through the bank and its banking services for sending and receiving the money for converting them into cryptocurrencies and for further making necessary payments. Thus even though they did not ban virtual currencies outrightly, they put a stop to it by blocking the cash flow from the economic market. This action was based on growing criticism of both the regulators and the government citing them as Ponzi schemes and basing their concerns over “consumer protection, market integrity, and money laundering, among others”

Later in 2019, the Committee submitted its complete report and recommended an overall ban on usage of private cryptocurrencies in India as they were a threat to the regulations.

Internet and Mobile Association of India v. Reserve Bank of India

However, in 2018, the Internet and Mobile Association of India (IMAI) representing the interest of the digital and online services corporations with the support from the public and industry-led petitions challenged the RBI circular in the case of Internet and Mobile Association of India v. Reserve Bank of India (2020). The not-for-profit industry body filed a petition in the Supreme Court. They contended that the ban was beyond the statutory powers of the RBI as a regulator. Even if it does come under their powers, this preemptive ban infringes on the right of the people to use and trade the currency.

In March 2020, the Apex Court accepted that ban was infringing Article 19(1)(g) of the Indian Constitution and scrutinized whether it was actually imposed in the general public interest under Article 19(6) that has to adhere to the doctrine of proportionality. The Court believed that RBI did not apply its mind to find less intrusive measures before issuing the circular and held that the ban was “manifestly arbitrary, based on non-reasonable classification, and it imposes disproportionate restrictions”. The Court further added such a ban has to arise from legislation and not from a regulator’s circular. The Supreme Court  while giving it’s judgment analyzed the  powers of the RBI for issuing the circular. The Supreme Court opined that the RBI has powers to regulate and the claim of the IMAI stating that the RBI has misused it’s powers was  not acceptable. The Supreme Court stated  that though virtual currencies  have a decentralized status, they  do operate as digital representations of value and  are a capable medium of exchange. Further the Supreme Court supported the claim that the RBI circular violated  Article 19(1)(g) of the Constitution of India. The  Supreme Court struck down the RBI circular on the grounds of proportionality stating that the measures taken by the RBI in issuing The RBI circular were not proportionate.

On the issue of determining the value of cryptocurrencies, it was important otherwise it would easily slip away out of all regulatory control. The Court upon scrutinizing various case laws from other jurisdictions broadly classified it as a store of value, a unit of account, and a medium of exchange still coming under RBI’s regulatory powers.

In 2019, a committee set up by the Government of India,  recommended a draft of a bill which banned the use of private crypto currencies. The  Bill was Ban on Crypto Currencies and Regulation of Digital Currencies 2019:

This bill  banned the use of crypto currency as a legal tender. Buying, selling, mining, holding , issuance, disposal of any type of crypto currency is banned.

  • Under the draft Bill, mining, holding, selling, issuing, transferring or use of crypto currency is punishable with a fine or imprisonment of up to 10 years, or both.
  •  A person must declare and dispose of any crypto currency in his possession, within 90 days from the commencement of the Act.
  • The central government, in consultation with the RBI, may issue digital rupee as legal tender. The RBI may also notify a digital currency recognized as legal tender in a foreign jurisdiction, as a foreign currency.

The bill however, allows use of blockchain technology for other purposes such as research or teaching. This bill is still in contention and  has not yet become a Act. 

However, the legal tussle is yet to reach an end. The cautionary and prohibitory approach of the circular has been enough to hinder the growth of crypto in India. As even after the apex court’s ruling, many banks still continued to halt crypto trading such as the HDFC Bank, ICICI Bank, Axis Bank, Yes Bank, and RBL Bank, etc. As the control still lies with the RBI, the banks cannot go against their decision in supporting crypto-related transactions. Especially as an unregulated commodity, RBI is bound to have close supervision over large Indian rupee conversions.

Ministry of Finance

Earlier this year, during the commencement of the budget session, the government also announced that they will be introducing the Cryptocurrency and Regulation of Official Digital Currency Bill, 2021. Based on the 2019 draft of the Banning of Cryptocurrency and Regulation of Official Digital Currency Bill by the inter-ministerial committee headed by former Department of Economic Affairs (DEA) secretary Subhash Chandra Garg, the new bill aims to prohibit private cryptocurrency players in India along with related activities (such as mining, buying, holding, selling, dealing in, issuance, disposal or use) and introduce a facilitative regulatory framework for officially dealing with the digital currency that will be issued by the RBI.

The entire Bill is divided into two parts 1) banning the private virtual currency based on the risks associated with dealing with them, and 2) paving a pathway for introducing official digital currency, However, once being introduced, the Bill is expected to make rounds before Standing Committee or a Joint Parliamentary Committee.

The Bill is expected to provide for regulation rather than a ban. The reason why RBI was keen on prohibiting its usage was the possibility for doing illegal financing activities (such as funding terror, money laundering, tax evasion, etc.), however, these practices might not be enough to curtail such activities. Other reasons also include protection of the investors, consumers in case of making purchases/sales in lieu of cryptocurrencies, lack of regulations, control, and oversight over the sector. These concerns can effectively be resolved by having a regulatory system in place, addressing the issues, and ensuring the value is available to all. Suggestions towards implementing such a regulatory framework have also been proposed by NASSCOM.

As recent as May 31st, 2021 RBI did release another notification for customer due diligence for transactions in virtual currencies. It clarified that the circular they released in April 2018 has been set aside by the Supreme Court in March 2020 and therefore it is no longer valid and has an effect to be cited from. This though not very explicitly does gives banks and the NBFCs the liberty to trade after conducting their due diligence in line with the regulating standards for Know Your Customer(KYC), Anti-Money Laundering (AML), Combating of Financing of Terrorism (CFT), and other obligations to be followed by the regulated entities under the Prevention of Money Laundering Act (PMLA), 2002 as well complying to provisions of Foreign Exchange Management Act (FEMA) for overseas remittances.

Statistics

As for the Indian masses they have been taking interest and the Indian crypto industry has shown a record jump in numbers. The number of active users is currently approximately 15 million, while the number of blockchain startups in this space has gone up from 100+ in 2018 to 300+ in 2021. 

According to a recent report by India’s industry association IndiaTech.org, Indian users currently hold crypto assets worth more than $1.5 Bn and their daily trades in crypto are worth $350-500 Million. The sector has also received immense funding from international players such as Tiger Global, Draper Associates, Binance, Coinbase, Block.One and Polychain Capital, Indian startups have received less than 0.2% of the $5.5 Billion funding raised by blockchain startups globally. Today, WazirX which is India’s most trusted cryptocurrency exchange estimates the investment of around 7 Million Indians in crypto-assets worth USD 1 Billion. 

Step ahead

India needs to have clarity on its decision on whether to continue with cryptocurrency or not. Either they can decide to completely ban its usage or follow the approaches that are being explored in other jurisdictions according to their suitability. On the 24th of September 2020, the EU Commission has officially released the Proposal for a Regulation on Markets in Crypto-assets (“MiCA”). The proposed regulation aims to bridge the gap in financial services regulations in the EU in relation to crypto-assets (which includes cryptocurrencies).

However, if a complete ban is imposed on virtual currencies, it will only lead the Indian cryptocurrency investors to invest in them in unmonitored circumstances. Further, even if they decide to introduce the new framework and state-owned cryptocurrency though their aim may be to develop a safer technological environment, the risk factor involved shall remain the same. It is essential to note that during the last week of March 2021, the latest amendment that was introduced to the Schedule III of the Companies Act, 2013, the government of India directed that all the companies have to disclose their investments in cryptocurrencies from the commencement of the new financial year. This also means that the companies have to reflect their profit/loss made on transactions around cryptocurrency.

Even in the draft published by the Ministry of Electronics and Information Technology on National Strategy on Blockchain, 2021, the benefits of dealing with cryptocurrency were highlighted. To that end, cryptocurrency has managed to have a global impact, and banning it shall not seem a befitting step. Rather the country could take effective steps in incorporating a system following the steps of other jurisdictions that have been successful in doing so.

Is it safe to invest in Crypto currency in India?

In a  country like  India with over 1.3 million people, anything can happen. Hence, a person to person source of payment without  any authority controlling it can be risky. The virtual currency is not guaranteed by the Central Government, so, in order for any virtual currency to be declared legal tender, it will have to be expressly guaranteed by the Central Government. The Reserve Bank of India has also stated the  potential legal risks that come  with crypto Currency. Crypto Currencies like Bitcoin and ethereum have given Indian investors huge returns and hence most of the Investors in India want to invest in Crypto currencies despite the legal risks that come with it. Also, it is viewed as an asset like gold which makes it more exciting for the Young Indian Investors. In spite of all this, the regulators and the Government have  been skeptical about the dealings in crypto currencies. Many experts are of the view that instead of banning crypto currency the Indian Government should think of  following the path of countries like Japan, USA, UK, Canada etc. who have not completely banned the use of crypto currencies but have imposed certain regulations on it’s dealings which makes it less risky. In doing this, the Government can also keep a track on it’s dealings. Imposing certain regulations on Crypto currencies will mean that  all the bad activities like money laundering, fraud etc. may not happen. Therefore, imposing certain  regulations on crypto currency transactions will help the central authorities as well as the investors  who deal in such transactions.

Conclusion

Thus, based on the aforementioned facts and to and fro decisions are given by various authorities involved like the RBI, Ministry of Finance, and the Supreme Court it can easily be induced that there is a lack of clarity in relation to cryptocurrency regulation in India. It is the need of the hour for us to have a well-structured regulation in place pertaining to the issues of crypto trading, exchanges, protection of investors, and people employed in the sector along with blockchain technology. There is inherent fear due to a history of odious incidences of cyber frauds as well as money laundering, we have to accept that blockchains are one of the most reliable ways for functioning the digital economy. Though not impossible, cryptocurrencies are unlikely to get hacked. For a transaction to be made it needs the consensus of the chain users with repetitive validations and if a data entry were to be hacked, it will require about 51% of the miners acting in bad faith which does not seem to be a probable event. Therefore, the government could rather focus on using cryptocurrency technology in ensuring security and immutability of information for developing a system with higher credibility and low-risk factors.

References

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All you need to know about the invocation of the bank guarantee under the IBC moratorium

By
Oishika Banerji
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0

This article has been written by Madhu Ayachit, pursuing the Certificate Course in National Company Law Tribunal Litigation from LawSikho.

Introduction 

The enactment of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”/ “Code”) has completely changed the procedure of recovery of debt by creditors and the revival of the Corporate Debtors. Under the Code, a financial creditor, an operational creditor, and the corporate applicant itself can initiate the Corporate Insolvency Resolution Process (hereinafter referred to as “CIRP”) against the Corporate Debtor under Sections 7, 9, and 10 respectively if the Corporate Debtor defaults the repayment. 

The Code also provides a step-by-step procedure that needs to be followed by the parties, insolvency professionals, and the Hon’ble Adjudicating Authority after the admission of aforesaid applications by the Hon’ble Adjudicating Authority. One of such requirements is to declare a moratorium against the Corporate Debtor. Declaring a moratorium also includes the prohibition of any action related to the security interest created by the Corporate Debtor for its property. Moreover, the proviso to the definition of “security interest” excludes a “performance guarantee” from the definition of “security interest”. 

A collective reading of the provision of moratorium and definition of “security interest” creates an ambiguity regarding the invocation of bank guarantee during the existence of moratorium.  

The Banks generally promise repayment or performance of obligations to the creditors or lenders in case their debtors fail to repay or perform their contractual obligations. Such a bank guarantee can be invoked as per terms of the contract of guarantee by the creditor to get back the outstanding debt amount. However, whether or not a bank guarantee can be invoked during the period of moratorium has been a debatable issue. A conflict in views regarding this can be seen in various judgments of the Hon’ble Apex Court and Tribunals. Sensing the ambiguity, an amendment to the provision of the moratorium was brought. Subsequently, the said issue was settled by the Hon’ble National Company Law Appellate Tribunal, New Delhi in February 2021 in the case of Bharat Aluminium Co. Ltd. v. M/S J.P. Engineers Pvt. Ltd. & Anr.

What is a bank guarantee?

A bank guarantee is a contract wherein the bank, as a financial institution, promises to repay or compensate an amount to a creditor or lender on behalf of a debtor or borrower. In simpler words, if a debtor fails to repay an amount or fulfill the obligations, the bank will step into its shoes and fulfill the demands of the creditor. There are two types of bank guarantees- a) Performance bank guarantee and b) Financial or non-performance bank guarantee. In a performance bank guarantee (hereinafter referred to as “PBG”), the bank promises to perform or fulfill the contractual obligations by paying a compensatory amount to the creditor if the debtor fails to fulfill its obligations. Whereas, in financial or non-performance bank guarantee (hereinafter referred to as “NPBG”),  the bank promises to repay a debt amount to the creditor if the debtor defaults its payment either in part or full.

What is a moratorium under the IBC?

IBC has not defined the term “moratorium” anywhere. However, from the definitions given under the Oxford, Cambridge, and Merriam-Webster dictionaries, the moratorium can be said as the permission or allowance by the legal authority to delay or postpone the obligations of the Corporate Debtor for a specified time. 

In the context of IBC, it means a time period after initiation of CIRP wherein all the proceedings or actions initiated against the Corporate Debtor or its property will be suspended till completion or termination of CIRP. The moratorium against the Corporate Debtor also includes suspension or prohibition of foreclosure, recovery, or enforcement of any security interest in respect of the property of the Corporate Debtor for the time being. 

Section 13 of the Code empowers the Hon’ble Adjudicating Authority to declare a moratorium under Section 14 after initiation of CIRP as a result of applications filed under Sections 7, 9, or 10 of the Code. Section 14 of the Code enlists all the proceedings which will be prohibited after the declaration of a moratorium. 

Bank guarantee vis-a-vis moratorium under the IBC

Section 14(1)(c) of the Code empowers the Adjudicating Authority to declare a moratorium forbidding or prohibiting foreclosure, recovery, or enforcement of any security interest created by the Corporate Debtor in respect of its property.  

Moreover, Section 3(31) of the Code defines the expression “security interest”. As per the definition, “security interest” also includes a transaction or an arrangement that secures payment or performance of an obligation. However, its proviso excludes the guarantee of performance or performance guarantee from the purview of the definition. Thus, this inclusion of the performance of obligations and exclusion of the performance-based guarantees from the definition of “security interest” had created a lot of ambiguity and the same is evident in various case laws discussed further. 

Apart from that, the amendment in Section 14(3)(b) of the Code made it clear that declaration or provisions of moratorium shall not apply to a surety under a contract of guarantee. While the amendment cleared the uncertainty regarding the invocation of third-party guarantees during the existence of the moratorium, the ambiguity regarding the parties in dispute continued to exist for a long time till recently.

Invocation of bank guarantee during the moratorium 

Whether or not a bank guarantee can be invoked during the moratorium period can be best understood through the judicial and quasi-judicial pronouncements. In the past, various tribunals and courts have expressed their diverse views regarding the invocation of PBG and NPBG after the declaration of a moratorium. 

The IBC mandates that once the insolvency resolution process gets initiated, all the transactions, affairs, and conducts of the Corporate Debtor must be regulated by the Resolution Professional (hereinafter referred to as “RP”). In the case of Corporation Bank v. Amtek Auto Ltd., the Hon’ble NCLT held that after the declaration of the moratorium, the financial institutions have to act on the directions of the RP and the corporate guarantees cannot be invoked if the same has not been approved by the RP. 

The very first case of invocation of bank guarantee during the moratorium came before the Hon’ble Gujarat High Court in 2017 in the case of ABG Shipyard Limited v. Government of India & Ors., wherein the Hon’ble Court held back the invocation of bank guarantee as the moratorium under Section 14 was already declared by the Hon’ble NCLT, Ahmedabad. 

Similarly, a special bench of Hon’ble NCLT, New Delhi did not allow the invocation of bank guarantee as the Corporate Debtor was already under the moratorium period. However, the Hon’ble Tribunal did not determine the nature of the bank guarantee as to whether it was PBG or NPBG, which further led to ambiguity. 

The departure from the aforesaid judgments can be seen in the case of Gudearth Homes Infracon v. Veebro Technoplast (IB-159 (PB)/2017). In this case, the Hon’ble Tribunal allowed the invocation of bank guarantee even when a moratorium was declared against the Corporate Debtor by the Hon’ble NCLT. However, in this case, as well, the nature and type of bank guarantee were not clarified by the Hon’ble Tribunal.

Invocation of performance bank guarantee (PBG) during the moratorium

Section 31(3) of the Code excludes “performance guarantee” from the definition of “security interest”. By excluding it from the scope of “security interest”, the Legislature has certainly expressed its intention. However, in 2018 in the case of ICICI Bank Ltd. v. Vista Steel Pvt. Ltd., a divergent view was adopted by the Hon’ble NCLAT wherein it stayed the invocation of PBG on the ground that it is in violation of the moratorium declared under Section 14 of the IBC.  

Thereafter, the Hon’ble NCLAT and NCLT corrected the jurisprudence laid down in the above case and upheld the legislative intent. The Hon’ble NCLT Delhi, in the cases of Levcon Valves v. Energo Engineering Projects Limited, Indian Overseas Bank v. Arvind Kumar, and Mr. Nitin Hasmukhlal Parikh v. Madhya Gujarat Vij Company Limited & Ors. observed that the declaration of the moratorium will not have any effect on the performance bank guarantee as it falls under the exception carved out by Section 31(3) of the Code.

A similar issue regarding the invocation of PBG was again raised before the Hon’ble NCLAT. The Hon’ble Tribunal in the case of GAIL (India) Ltd. v. Rajeev Manaadiar & Ors. opined that the Corporate Debtor is entitled to approach the guarantor bank to invoke the performance guarantee either in full or in part, as per the terms of the contract of guarantee, on the ground that moratorium will not prohibit the PBG as per Section 14(1) read with Section 31(3) of the IBC.  

Invocation of non-performance bank guarantee (NPBG) during the moratorium

While the provisions of the IBC, to some extent, deal with the performance guarantee, they are silent regarding the non-performance guarantee. However, since the Legislature has exempted only the performance-based guarantees from the scope of security interest, it is clear that there is a significant difference between both the guarantees and operation of the moratorium will have different impacts on them. 

An attempt to distinguish the PBG and NPBG was made by the Hon’ble NCLT, Ahmedabad in the case of Mr. Nitin Hasmukhlal Parikh v. Madhya Gujarat Vij Company Limited & Ors. The Hon’ble Tribunal observed that there is a clear distinction between both the guarantees. During the existence of a moratorium, the Corporate Debtor is not entitled to invoke bank guarantees other than those which fall within the ambit of performance guarantee. Though the Hon’ble Tribunal, in this case, reiterated the correct position of law, it did not take into consideration the amended provision of Section 14(3). 

The issue of invocation of NPBG was raised for the first time before the Hon’ble NCLAT in the case of Berger Paints India Ltd. v. Precisions Engineers & Fabricators Pvt. Ltd. The Hon’ble Tribunal denied the invocation of NPBG on the ground that the operation of the moratorium will have no effect only on the invocation of PBG and not NPBG. In this case, the RP had declined the request of the Corporate Debtor regarding the invocation of the guarantee. Therefore, the Hon’ble Tribunal delivered the judgment in the favour of the RP and said that he was correct regarding the position of law.

Current scenario 

It is evident from the aforesaid pronouncements that there were inconsistencies and diversity amongst the Adjudicating Authorities regarding the enforcement of bank guarantees. However, the amendment act of 2018 cleared the ambiguity by exempting a surety under a contract of guarantee from the application of moratorium.  

As per Section 14(3)(b), the moratorium will not apply to a surety under a contract of guarantee. The said provision was inserted in the Code on the recommendation of the Insolvency Law Committee in March 2018. 

According to the report, the assets of the Corporate Debtor must be viewed as separate from those of the surety. Therefore, the proceedings such as CIRP against the Corporate Debtor will not be affected by the action against the surety. Similarly, enforcement or invocation of guarantee will not have a substantial effect on the CIRP proceedings of the debtor. Hence, the committee said that contractual obligations under the contract of guarantee should be respected even during the operation of a moratorium. 

Subsequently, the Hon’ble Supreme Court in the case of SBI Vs. V. Ramakrishnan & Ors. relied upon and upheld the report of the Insolvency Law Committee.  

In February 2021, the Hon’ble NCLAT in the case of Bharat Aluminium Co. Ltd. v. M/S J.P. Engineers Pvt. Ltd. & Anr. finally settled the conflict regarding the invocation of bank guarantee and upheld considering the amended provisions of Section 14(3) that, invoking a bank guarantee will not in any way affect the CIRP proceedings against the Corporate Debtor and thus it can be also invoked during the moratorium period.

Conclusion 

There have been various instances of misinterpretation or ambiguous interpretation of the legislative intent regarding the statutory provisions. The aspect of invocation of bank guarantee during the moratorium period is one of them. The Insolvency and Bankruptcy Code was enacted in 2016. It took more than two years and a subsequent amendment in the Code to draw a correct interpretation of Sections 14(1)(c) and 31(3) of the Code in respect of invocation of bank guarantee. The Hon’ble Tribunals and Courts had constantly made efforts to interpret and apply the provisions directly related to the effect of a moratorium on bank guarantees, however, ambiguity regarding the distinction between Performance Bank Guarantee and Non-Performance Bank Guarantee was evident. The confusion was resolved by the amendment act of 2018 and subsequent pronouncements reiterating the report of the Insolvency Law Committee.

References

(i)https://ibclaw.in/invocation-of-bank-guarantees-during-moratorium-tale-of-conflicting-decisions-by-anjali-patel/.

(ii)https://www.livelaw.in/columns/financial-bank-guarantees-and-moratorium-under-ibc2016-161494.

(iii)https://www.mondaq.com/india/insolvencybankruptcy/791130/invocation-of-bank-guarantees-during-moratorium-a-situation-of-conflicting-decisions?

(iv)https://www.mondaq.com/india/insolvencybankruptcy/790884/ibc-moratorium-is-vis-invocation-of-bank-guarantee.

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What to do if you are being stalked

By
Sneha Mahawar
-
0
Stalking
Image Source: https://rb.gy/rrgwwx

This article is written by Gursimran Kaur Bakshi, a student at the National University of Study and Research in Law, Ranchi. This article explains to you in-depth what amounts to stalking, when you should report it, and to whom you should report it. 

Table of Contents

Introduction

Eve-teasing idealistically should not be associated with gender because anyone can become a victim of it. Unfortunately, the Indian criminal system does associate it with gender. Eve-teasing, in simple terms, means, following someone for no legitimate reason, threatening that person by words, gesture, using force, on the streets, workplace, school, college, on the internet to name a few. 

There is technically no justification for eve-teasing except that it may give the person some kind of sadistic pleasure. 

Victims of eve-teasing know the gravity of this offence. They know that eve-teasing or ‘stalking’ is a crime and that the person committing it should be punished. But they probably do not know or rather they do not want to accept the fact that crime is not always easy to report. This could be the case despite the fact that the person is acquainted with the law. This is primarily because it is traumatising not just to physical health but to mental health as well. It forces a person to develop some kind of anxiety and inability to feel safe in using public transportation, travelling alone, and almost in all those places where there is a crowd. 

It is indeed braver on someone’s part to report the crime, but more than anything, it is now necessary to report it to the right authority and at the right time. In India, a woman is stalked every 55 minutes. Thus, it is one of the biggest reasons why women in India do not feel safe in public. Many of them have lost lives with no fault of theirs. It should have also been the reason why even men and persons of other sexual orientation and gender identity could not feel safe too. But unfortunately, India has not progressed enough to accept this fact.

This article is divided into various parts. It will discuss the background of stalking as an offence. Then, it will discuss the step-by-step procedure on how you can report a case of stalking. Lastly, the laws relating to stalking are discussed with case laws. 

To know more about the scope of what to do when someone is stalking you in brief, please refer to the video below:

Stalking as an offence under the Indian Penal Code, 1860 

This section of the article discusses the definition of stalking, the reasons to recognise it as an offence, and the Criminal (Amendment), Act, 2019.

A brief definition of stalking 

Stalking in layman terms means following a woman physically or through online modes (cyberstalking). The motive is to follow a woman without her consent to establish unwanted contact with her. It was not an offence until the Criminal Law (Amendment) Act, 2013. It was suggested as an offence under Section 354D of the Indian Penal Code, 1860 (‘IPC’) by the J.S. Verma Committee. The committee was constituted post the infamous Delhi (Nirbhaya) gang rape.

Reasons to recognise stalking as an offence 

On December 23, 2012, the J.S Verma Committee was constituted with former Justice JS Verma as the chairman, Justice Leila Seth, and Senior Advocate Gopal Subramaniam as its other members. The committee was supposed to suggest changes in the criminal justice system for quicker trials and enhanced punishment for criminals committing sexual assault of extreme nature against women. The committee submitted its report on January 23, 2013. 

By the very definition under Section 354D, stalking is considered one of the most serious nature of offences against women. However, the criminal code recognises stalking only against women. Unfortunately, the current law on stalking is not gender-neutral yet. Other legislation under which the offence of stalking can be punished is the Information Technology Act, 2000 (‘IT Act’) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The legislation does not make the offence gender-neutral, but at least helps in broadening the ambit of the offence of cyberstalking and other types of ancillary offences committed with it. 

About the Criminal Law (Amendment) Bill, 2019

On the point of the recognition of the offence of stalking as gender-neutral, the senior advocate and the former member of Rajya Sabha, K.T.S Tulsi suggested through the Criminal Law (Amendment) Bill, 2019 to make sexual offences gender-neutral. But the bill was not passed. The same was argued through various petitions before the Supreme Court. However, the court refused to entertain these petitions citing the lack of jurisdiction. 

Two broad categories of stalking 

Stalking is divided into physical and cyberstalking. Both forms are mentioned under Section 354D. Both forms have been explained below. 

Physical stalking under Section 354D(1)(i)

The ingredients of physical stalking under Section 354D(1)(i) are, first, that the offence must be committed by a man against a woman. Stalking is committed in person when (1) a woman is being followed and contacted by a man, or (2) the man tries to contact her, (3) to foster personal interaction repeatedly, (4) despite her clear indication of disinterest. However, the conduct of a man in any of the forms as mentioned above, shall not be an offence under this Section, if,

Exceptions

  • One: (1)The man is entrusted with the responsibility by the state, (2) to prevent and detect crime, (3) and the conduct pursued by the man was in furtherance of the same.   
  • Two: (1)The person’s conduct was pursued under any law, (2) or to comply with the requirements of any law.
  • Three: The conduct, in that particular circumstances, was justified and reasonable. 

Although this Section has been explained here in simple terms, we could understand it further with the help of certain examples to attain better clarity. But before we venture into that, it’s important to mention here that the definition of ‘Man’ and ‘Woman’ is defined under Section 10 of the IPC as, a male human being of any age and a female human being of any age respectively. This essentially means that a male and a female of any age can be accommodated under this Section. The Section intentionally uses generic terms and thus, has the scope to include third-gender who are neither male nor female. The rights of transpersons were recognised in the National Legal Service Authority v. Union of India (2014).

Examples of stalking

  • Instance 1: If A, a schoolboy of 17 years old, follows a girl B from school to her house, to contact her despite her disinterest. This amounts to stalking under the Section.
  • Instance 2: In the above case, instead of following B to her house, A tries to contact her at school or anywhere else, despite her disinterest, this shall still amount to stalking. 

Examples where it shall not amount to stalking 

  • Instance 1: Now, let’s just assume that A was a police officer, who was under a duty to follow B, to investigate a case relating to the commission of a certain offence or to catch someone who has been stalking B. In these cases, it shall not amount to stalking. It is because a police officer is entrusted with a duty to prevent and detect crime and thus, he is covered under the exceptions. 
  • Instance 2: If A was stalking B because he thought B was about to be attacked by someone, or that she was being followed, or that her life was under threat. In these circumstances, it would be reasonable and justified on the part of A to follow B. 

Procedure to report a case of stalking

Now, let’s understand the procedure, step by step, on how to approach the concerned authority to report a case of stalking. It needs to be stated that often these crimes go unreported because women are not aware of how to seek the right remedy and from whom to seek it. That is why the laws have been mentioned in simple terms and the procedure has also been provided to enable the victims to approach the concerned authority and seek the right remedy. 

What to do if stalking takes place physically 

  • Understand and recognise the right laws and the Sections. For stalking, please have a look at Section 354D(1)(i) of the Indian Penal Code, 1860. 
  • Now determine whether any of the acts that have happened to you, fall within the category of Section 354D(1)(i) or under Section 354D(1)(i) along with other Sections, to understand what all sections will be applicable. 

For instance, are you just being stalked? Or are you being stalked and sexually harassed? 

  • Once you find out what all Sections will be applicable, look for whether that section is cognizable or non-cognizable. Cognizable offences are serious offences and the police can arrest the culprit without the approval of a court. Whereas, in the other cases, the police need an arrest warrant. 
  • As it has been mentioned above, stalking is a cognizable offence which means that the victim needs to inform the police that she is being stalked. The police can then take a suo moto cognizance (can acknowledge that the crime has been committed without the intervention of the court).
  • Now, as the police have the power to start an investigation for an offence of stalking without the permission of the court, visit the nearest police station and inform the concerned police officer that you are being chased or stalked by person X and that you want to lodge a First Information Report (FIR). 

FIR allows the police to officially start an investigation into the crime that has been committed. 

In case, where you are not present in your domiciled state, a zero FIR can also be lodged at any of the nearest police stations. It can later be transferred to the police station in your jurisdiction of the state. 

A zero FIR helps you to lodge an FIR in any police station.

What to do if cyberstalking takes place

  • If you are a victim of cyberstalking, it is important to first understand that the origin of this crime lies in Section 354D(1)(ii) only. 
  • Follow the basic steps first, such as understanding that you are being stalked on the internet, by someone through any of the modes such as through social media platforms, mails, or any kind of electronic communication.  
  • Once you are sure that you are being stalked, you can file a cybercrime complaint online through the website of the nearest cyber police station/cyber cell. 
  • You can file an online complaint at the National Cyber Crime Reporting Portal under the Ministry of Home Affairs: https://cybervolunteer.mha.gov.in/. The helpline number for Uttar Pradesh, Delhi, Rajasthan, Uttarakhand, and Chattisgarh is 155260 (24×7).
  • Also, every state has its cybercrime reporting portal such as this of Uttar Pradesh along with the helpline numbers: https://uppolice.gov.in/article/en/cyber-crime.  
  • All states do have a cyber police station or a separate cyber cell in the police station to deal with cybercrimes. If you are unable to file a complaint online, it is better to register an FIR in the nearest cyber cell. 
  • If you are unable to do any of it, simply visit a police station and they will guide you on how to go about it. Or consult your lawyer for the same.

What to do in case the police refuse to register your FIR?

There are other remedies available in case the police refuse to register an FIR, which they do in high profile cases or simply to intimidate the complainant. In such cases, please refer to Section 154(3) which allows you to write a complaint to the superintendent of the police. You can also file an application under Section 156(3) to the Magistrate. The Magistrate can then order the police to register an FIR. 

In case you do not wish to first register an FIR, you can go to the Magistrate under Section 190, where a Magistrate (judicial officer) of the first class or the second class can take cognizance of your case, upon receiving a complaint of facts. Once the facts of the case come to the notice of the Magistrate, he is empowered to either direct a police officer to initiate an investigation or can start an investigation in the case himself. 

Sample complaint to report a case of stalking to the Magistrate 

As mentioned above, there could be instances where the police may refuse to register an FIR. In those cases, it is important to remember that there are alternative ways available. The best way would be to approach the nearest Magistrate to register a complaint on stalking. Carry with yourself the complaint you have written to the police officer if any. The Magistrate will examine the complaint with the complainant on oath under Section 200 and he may direct the police officer to initiate an investigation under Section 156(3) or he can inquire into the case himself. 

Here is how a complaint to the Magistrate can be drafted:

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT _________

COMPLAINT CASE NO. __________ OF 2021

 

(Affix Court Fee stamp of Rs. ___)

IN THE MATTER OF:

 

Name of the Complainant___                                                                 

COMPLAINANT

ADDRESS _________________

vs

Name of the Accused___

                                                                                        ACCUSED

ADDRESS _________________

 

Police Station(nearest to your residence) _________

 

COMPLAINT UNDER SECTION 200 READ WITH SECTION 156(3) OF THE CODE OF CRIMINAL PROCEDURE FOR REGISTRATION OF FIR UNDER SECTION 354D OF INDIAN PENAL CODE

 

THE COMPLAINANT ABOVE NAMED MOST RESPECTFULLY SHOWETH:

  1. That the complainant is a law-abiding citizen of India. The Complainant is a resident of ____ (full address).
  2. The respondent (accused)named above is the _____(mention the relation, if any, with the complainant)of the Complainant. 
  3. That the accused has been following the complainant ________(narrate the incident and mention the details of how the accused has been stalking the complainant).
  4. That again on _____(mention other instances where the accused has stalked the complainant).
  5. That the complainant went to the Police station at ____ to report the matter, but the police refused to lodge a First Information Report. The copy of the complaint given to the police officer is attached herewith as Annexure I.
  6. That the complainant when written the same complaint to the Superintendent of Police by sending the complaint in writing and by post. No action was pursued on that complaint as well. A copy of the complaint sent to the Superintendent of Police has been attached herewith as Annexure-II. 
  7. Despite the attempts to initiate legal action, the complainant has been unable to do so and now requests legal action against the accused.

P R A Y E R

In the light of the above-mentioned facts, it is respectfully prayed that the court may be pleased to:

  1. Take cognizance of the complaint
  2. Take cognizance of the offence
  3. Initiate an investigation into the offence 

 

Pass any such order as it may deem fit for the interest of justice. 

 

AND FOR THIS ACT OF KINDNESS, THE HUMBLE APPLICANT AS IN DUTY BOUND, SHALL EVER PRAY.

COMPLAINANT

THROUGH

(Name)ADVOCATE

Place:

Date:

ATTACHED HEREWITH ARE ANNEXURES I & II

Other ways to approach help when you are being stalked

An integrated emergency response support system of the government 

While you are being stalked, it is advisable to call a helpline that is located in your state. There is an integrated Emergency Response Support System with helpline number 112. It is designed to receive all emergency signals from citizens through voice calls, emails, panic SOS signals, or a complaint through the system’s portal. The system can be used by installing an App on mobile called ‘112 India’. Since the App has been introduced by the government of India, it is available throughout the states and Union Territories. 

Further, there is an Integrated Women Helpline number ‘1091’ which is available in all parts of India. Almost all states also have their individual helpline numbers available on their website. A simple google search can help you in this case. 

A complaint can also be filed at the National Women Commission 

A complaint can also be registered in writing or through the website of the National Women Commission. The Commission has the power to initiate an investigation with the Police and can even constitute an inquiry committee for the investigation of a serious offence. The Commission has been established under the National Commission for Women Act, 1990. 

Under Section 10 of the Act, the commission can investigate all matters under the Indian Constitution and other legislation relating to women rights, take suo moto cognizance over the same, and take up the cases where the women have been deprived of their rights leading to the violation of various laws. The procedure to file a complaint is easy and there is nothing to worry about issues like you do not know the law. 

Here are the steps to register a complaint at the National Women Commission:

  • Click on the option ‘register complaint’ and you will see a set of instructions, where the mandate of the commission is mentioned. This includes the instructions like that the Commission can only hear complaints that are genuine and within the ambit of the 1990 Act. 
  • Once you click on register complaint and read the instructions, there will be another option as ‘register complaint form’. Click on that option and you will see a form that is divided into two parts. Part I is about the details of the complainant and Part II is about the respondent. 
  • Fill in the details of Part I, where you will have to mention your details like name, address, email, mobile number etc. For the part of the respondent, which is Part II, you are only required to know his name, address, district, and state. There is a box where you will have to mention the whole incident (commission of the offence) in detail. 
  • It is important to know that anyone can register a complaint and it does not have to be the complainant only. There is an option that mentions that, if you are not a complainant, then first, mention the details of the complainant, then mention your details, the details of the respondent, and the incident. 
  • Once you are done with it, submit the form and you will be given a file number. You can track your complaint on the website. If you still have any further queries, please refer to the frequently asked questions section.

How to report a case of stalking and sexual harassment at the workplace

All public and private employers are supposed to establish an internal complaints committee(‘ICC’) to hear cases of sexual harassment at the workplace. Any aggrieved woman can make a complaint of sexual harassment at the workplace in writing to the internal committee. But the complaint has to be filed within a period of three months from the incident. Although such restrictions on the time period are not welcome, unfortunately, this is the case here.

If you are a victim of stalking and sexual harassment at your workplace and has been unable to approach the ICC, a complaint can also be filed through the SHe-Box Online Complaint Management System of the NCW.

Laws on stalking explained in detail  

Aggravated form of physical stalking

Stalking may often be accompanied by other subsequent criminal acts which may or may not make it an aggravated form of physical stalking. Since it can be accompanied by so many different offences, we have tried to cover those offences that are most frequently occurring. Let’s discuss that one by one. 

Stalking and use of words, gestures, or acts intended to insult the modesty of a woman under Section 509 of IPC

One of the most common examples where the offence of stalking takes place is along with insulting the modesty of the women by way of words, gestures, or acts is eve-teasing. One of the incidents where both Sections were applicable was when a girl was chased by a group of men as she was on her way home from college. They tried to chase and grab her, due to which she lost balance and fell on the road sustaining an injury and eventually died. Such similar incidents happen on a day to day basis now, where women are followed, eve-teased, assaulted and abused on streets for no reason. These kinds of incidents fall within the purview of Section 509 r/w Section 354D(1)(i). Section 509 can also be applied in case of cyberstalking. 

Stalking and assault or use criminal force on a woman with intent to outrage her modesty under Section 354 of IPC

An example where stalking takes place is to assault or use criminal force against a woman to outrage her modesty. It happens when a man follows a woman, first to establish unwanted contact and subsequently pulls her close, or slaps her posterior, or tries to remove her clothes, or asks for some kind of sexual favour. 

All these acts independently would fall within the ambit of Section 354D(1)(i) r/w Section 354 of the IPC. The IPC does not define a set of acts that would specifically amount to outraging the modesty of the woman and thus, the liability shall depend on case to case basis. 

Stalking and assault or use criminal forces on a woman with intent to disrobe under Section 354B of IPC

It is important to understand the difference between outraging the modesty of a woman and intentionally disrobing her. The latter is attracted in the case of stalking when the man tries to remove her clothes or compels her to be naked, by assaulting her or using criminal force on her. Even when a man tries to remove her clothes or tries to compel her to remove her clothes but he is ultimately unsuccessful, he shall still be liable under Section 354B r/w 354D(1)(i).

For instance, A, a boy stalks a school girl B, and tries to remove her shirt or forces her to remove the same, he shall be punished for stalking and using criminal force to disrobe B.

Stalking and sexually harassing a woman under Section 354A of IPC

This is another case of eve-teasing where unwanted physical contact is established first and then, advances involving unwelcoming and explicit sexual overtures, demands or requests of sexual favour, showing pornography against her will, making sexually coloured remarks is accompanied with it. All these acts along with stalking shall be punishable under Section 354A with 354D(1)(i). 

For instance, if A, a male, tries to follow B, on his bike and chases her while making sexually lewd remarks such as about her private body parts, or requests her to kiss him or touch him. A is liable for stalking and sexually harassing a woman.

Stalking and sexually harassing a woman at the workplace under the prohibition of sexual harassment at workplace act, 2013 

Stalking can also occur at the workplace. For instance, someone is stalking you from let’s say your home to your workplace and that person happens to be your colleague. To tackle this situation, the 2013 act has been enacted. The act was enacted based on the guidelines of the Supreme Court in Vishaka v. State of Rajasthan (1997).

The act generally deals with sexual harassment at the workplace which includes making lewd or sexually coloured remarks, asking for sexual favours, any other unwelcome physical, verbal or non-verbal conduct of sexual nature as mentioned under Section 2(n).

Stalking to commit Voyeurism under Section 354C

Voyeurism in simple terms means infringing the privacy of a woman by capturing, transmitting, recording, or publishing an act that is considered private. An act is private under Section 354C when an act of watching is carried out in a place where a reasonable expectation of providing privacy exists. 

If a woman is stalked by a man and thereby he records her actions, where her genitals, posteriors, or breasts are exposed or covered in minimal clothes, or where she is engaged in a private sexual act or where she is using a lavatory(Toilet), then this would amount to voyeurism under Section 354C r/w 354D(1)(i). A person can also be punished for trespassing into a private property while committing Voyeurism if he follows the woman to her house. 

Punishment for physical stalking and aggravated form of physical stalking 

Sections 

Punishment

Nature of the offence
  1. Section 354D(1)(i)

First Conviction- Imprisonment up to 3 years and fine.

Second and subsequent conviction- Imprisonment up to 5 years and fine.

First Conviction- Cognizable-Bailable

Second Conviction- Cognizable-Non-Bailable
  1. Section 354D(1)(i) r/w 509

Same as above 

Same
  1. Section 354D(1)(i) r/w 354

Minimum imprisonment up to 1 year which may extend up to 5 years, and with a fine.

Cognizable- Non-Bailable
  1. Section 354D(1)(i) r/w 354B

Minimum imprisonment up to 3 years which may extend up to 7 years, and with a fine.

Cognizable-Non-Bailable
  1. Section 354D(1)(i) r/w 354A

Rigorous Imprisonment up to 3 years or fine or with both in sexual harassment of the nature of unwelcome physical contact or a demand or request for sexual favour, showing pornography.

Imprisonment up to 1 year or with fine or with both in sexual harassment of the nature of making sexually coloured remarks.

Both are Cognizable-Bailable 
  1. Section 354D(1)(i) r/w 354C

Minimum imprisonment of 1 year which may extend to 3 years with a fine for a first conviction. 

For the second and subsequent conviction, minimum imprisonment of 3 years may extend up to 7 years with a fine.

Cognizable and Bailable.

Cognizable and Non-Bailable for the second and subsequent conviction.

Cyberstalking under Section 354D(1)(ii) and aggravated forms of cyberstalking 

Stalking takes place online if a man monitors the use by a woman of the internet (1), email (2), or any other form of electronic communication (3). This is mentioned under Section 354D(2)(i).

Cyberstalking can be done in various ways. The simplest way of stalking a woman on the internet is following her on any social media platform. For instance, if, A, a boy tries to follow a girl on Facebook and keeps sending her friend requests, even though she is not accepting it or is not interested in accepting it, then this shall amount to stalking. 

Further, if A manages to send her messages, even if she has not accepted his Facebook request, this shall amount to stalking too. However, on the internet, stalking is often coupled with other forms of offences punishable under the IT Act.

Cyberstalking to send obscene materials under Section 292 of the IPC and Section 67 of the IT Act

This part simply deals with a case where a woman is first followed on the internet and is harassed by way of obscene materials, which might not be exactly sexually explicit but are vulgar. What is vulgar or obscene needs to be tested from the threshold of a reasonably prudent person. The person can be held liable under Section 292 for transmitting obscene materials and Section 67 of the IT Act along with Section 354D(1)(ii).

Cyberstalking to send sexually explicit materials in electronic form under Section 67A and 67B of the IT Act

This Section deals with two situations, one is where an adult woman of 18 years old and above is being harassed by a male, who has first stalked her online and is then sending sexually explicit materials containing pornography/nudes. 

Another situation is when similar things happen but with a child below the age of 18 years old. For those above the age of 18 years, Section 67A will be applicable and Section 67B would apply to minors along with Section 354D(1)(ii).

Cyberstalking to violate bodily privacy under Section 66E of the IT Act

Section 66E of the IT Act is similar to section 354C other than the difference that exists in the form of committing it. If voyeurism takes place physically along with stalking, then it is punishable under Section 354C and 354D(1)(ii) of IPC. However, if the same acts are committed through the internet, it is punishable under Section 354D(1)(i) along with Section 66E of the IT Act. Notably, the right to privacy became a facet of the right to life and personal liberty under Article 21 of the Indian Constitution in K.S Puttaswamy v. Union of India (2017).

Cyberstalking to cause criminal intimidation by anonymous communication under Section 507 of the IPC

Stalking a woman on the internet and trying to cause fear to her through anonymous communication is punishable under this section. For instance, A, a male, stalks B and induces fear in her to sell her property unless she wants her reputation to be ruined. This act will not only result in cyberstalking but would also make the person liable for causing criminal intimidation under Section 507 along with 354D(1)(i). The offence of criminal intimidation is not necessarily restricted to cyberstalking as it can happen in physical stalking as well. 

Punishment for cyberstalking

Sections 

Punishment

Nature of the offence
  1. Section 354D(1)(ii) with Section 292 of IPC and Section 67 of IT Act 

The minimum punishment for transmitting obscene content under Section 292 is imprisonment for 2 years, with a fine of 2,000 rupees.

However, Section 67 of the IT Act punishes a person with imprisonment of up to 3 years and a fine up to rupees 5L. 

Cognizable-Bailable under IPC

Cognizable-Non-Bailable under IT Act
  1. Section 354D(1)(ii) r/w 67A and 67B of the IT Act

Imprisonment up to 5 years and fine Rupees 10L on first conviction

Imprisonment up to 7 years and fine Rupees 10L on first conviction.

Cognizable-Non-Bailable
  1. Section 354D(1)(ii) r/w 66E IT Act

Imprisonment up to 3 years with a fine of Rupees 2L

Cognizable-Bailable
  1. Section 354D(1)(ii) r/w 507

Section 507 is a corollary of Section 506 which punishes a person for criminal intimidation. Imprisonment for 2 years in addition to the punishment up to 2 years, or fine, or both. 

In subsequent conviction, imprisonment for 7 years in addition to imprisonment up to 2 years, fine, or both. 

Non-cognizable-Bailable 

 

Cases on stalking 

In Arvind Kumar Gupta v. State (2018), a man was following a woman to her office and would stand next to her residence, whenever she came back for more than a year. He even tried to call her by her name sometimes, while she was heading to her offence. As this continued for some time, the woman asked her brother to confront him. When confronted, the man replied that the woman reminds her of someone and even though he might not be suitable, he still wants to marry her.

The woman decided to lodge an FIR and in the trial, the accused although categorically denied committing the offence failed to plead any defence. The prosecution on the other hand proved beyond reasonable doubt that the accused followed her consistently, and continued to do so even after being detested for doing the same. It was proved that the man was following her despite her apparent disinterest, to foster a personal relationship with her. The court awarded him a simple punishment for a year with a fine because he was a widower and a father of three minor children.

India’s first cyberstalking case happened in 2001 when a man was stalking a woman by illegally using her name to chat on an online website www.mirc.com. He used obscene language against her and even distributed her personal number online to invite people to chat with her. The woman started getting obscene calls and the Delhi Police wanted to register an FIR under section 509 but could not do so because the stalking happened through an online mode. Subsequently, the IT Act was amended in 2000 added Section 66A to prosecute online communication which was grossly offensive and can cause hatred and enmity. However, the Section was struck down in its entirety in Shreya Singhal v. UOI (2015) for unconstitutional vagueness and for sending down a chilling effect on Article 19(1)(a).

Conclusion

Eve-teasing a woman, or chasing her, or following her, or stalking her on social media has unfortunately become a daily phenomenon. It’s concerning that there seems to be a sense of normalcy attached to this crime since it happens every day and that women eventually become used to it. But this approach is highly wrong and needs to be changed. If you are a victim of stalking or you have been a victim of stalking, please make sure you know and acknowledge that this is a serious crime and any kind of ignorance may prove fatal. 

Lastly, it should be noted that If you are not reporting the offence to the concerned authority, then you are indirectly appreciating the person to repeat that offence with you or with anyone else. You might have had the guts to simply ignore the incident and move on, but the other female who is now a victim of that person’s stalking, might not be able to take it. Every single day, every single woman has witnessed stalking at least once in their lives. They know how traumatizing it is and the sense of fear it creates in the mind of the women. It is important to not adjust to the normalcy associated with this crime and make sure that you report it to the right authority the next time something like this happens to you. If not for yourself, then for all those women who have lost their precious lives because of this. 

References

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All you need to know about the Drone Regulations, 2021

By
Rachit Garg
-
0
Drone laws
Image source - https://bit.ly/37RHj8O

This article is written by Vanya Verma from Alliance University, Bengaluru. This article covers the regulations put forward to regulate drones under the Drone Regulations, 2021.

Introduction

In a layman’s language, a drone is referred to as Unmanned Aircraft Systems (UAS). Remotely Piloted Aircraft, Autonomous Aircraft, and Model Aircraft are the three types of unmanned aircraft. The remotely piloted aircraft consists of remote pilot station(s), the requisite command and control links, and any additional components specified in the type design. Drones are used for a variety of reasons, including package delivery, agricultural (spraying insecticides, etc.), environmental monitoring, aerial photography, and search and rescue missions, among others.

The Ministry of Civil Aviation (MoCA) on 14th July released the updated draft Drone Rules, 2021. These Drone Rules 2021 will replace the Unmanned Aircraft System Rules 2021 that was released on 12 March 2021. We will further study the Drone Regulations, 2021. 

Applicability of drone regulations

The drone rules apply to: 

  • All persons in India who own, possess, or are involved in the exporting, importing, manufacturing, trading, leasing, operating, transferring, or maintaining of a drone; and 
  • All drones which are currently being operated in or over India.

Except for those sections whose application is clearly stated in these rules, the provisions of the Aircraft Rules, 1937 do not apply to drones and matters connected with or incidental to them.

The provisions of the Aircraft Rules, 1937, apply to drones with a maximum all-up weight of more than 500 kilograms. Drones operated by the Union’s naval, military, or air forces are exempt from these laws.

Classification of drone

Drones shall be classified based upon the maximum all-up weight including payload as under:

(a) Nano drone: less than or equal to 250 grams; 

(b) Micro drone: greater than 250 grams and less than or equal to 2 kilograms

(c) Small drone: greater than 2 kilograms and less than or equal to 25 kilograms

(d) Medium drone: greater than 25 kilograms and less than or equal to 150 kilograms.

(e) Large drone: greater than 150 kilograms.

Scope for foreign investment in this area requires further liberalisation of the sector.

Certification of drone

General

No one may operate a drone in India unless it has a certificate of airworthiness or is exempted from the requirement under these Rules.

Certification entities

On an application filed by a manufacturer or importer of that type of drone on the digital sky platform, the Quality Council of India or a certification entity authorised by the Quality Council of India or the Central Government may issue a certificate of airworthiness for a particular drone if it meets the specified certification standards.

Certification standards

The Central Government may set the standards for getting a certificate of airworthiness for drones based on the Quality Council of India’s suggestion. These guidelines may encourage the adoption of Indian-made technology, designs, components, and drones, as well as India’s regional navigation satellite system, Navigation with Indian Constellation (NAVIC).

Procedure for application

Any manufacturer or importer seeking an airworthiness certificate must apply to the Quality Council of India, or any other certification authority authorised by these regulations, using Form D-1 on the digital sky platform, and provide the following information:

  1. The applicant’s name, address, and GSTIN; 
  2. The prototype drone’s details and required documentation;
  3. Proof of payment of the prescribed fees; and
  4. The prototype drone will be physically turned over to the certification entity.

Restriction on imports

The Directorate General of Foreign Trade will regulate the import of drones and drone components.

Acceptance of approvals given by foreign regulators

The Quality Council of India may certify drones based on licences issued by other international aviation regulators for that type of drone, as defined by the Central Government.

General safety

No one shall use a drone in any way that endangers the safety and security of any person or property, either directly or indirectly.

Mandatory safety features

The Central Government shall notify the person who owns a drone of the safety features that must be installed on the drone.

All drone owners must implement the aforementioned safety elements within the timeframe provided by the Central Government, which must not be less than six months from the date of notification. Safety features that may be announced in the future include:

  1. ‘No Permission – No Takeoff’ (NPNT) hardware and firmware;
  2. Real-time tracking beacon that sends the drone’s location, altitude, speed, and unique identification number; and
  3. Geo-fencing capability.

Exemptions

Manufacturing, importing, or operating will not require a certificate of airworthiness in case of:

  1. Prototype drone for research and development;
  2. Prototype drone for acquiring a certificate of airworthiness; and
  3. Nano drone.

Registration of drone

Unique identification number

  1. Unless exempted by these regulations, no person shall fly a drone that does not have a unique identifying number.
  2. A person can generate a drone’s unique identification number by filling out Form D-2  on the digital sky platform with the necessary information.
  3. A drone’s unique identification number must be linked to the manufacturer’s unique serial number as well as the unique serial numbers of its flight control module and ground control station.
  4. No one shall replace a drone’s flight control module or ground control station whose serial number is linked to the drone’s unique identification number without first updating the unique serial number of the new flight control module or ground control station on the digital sky platform within seven days of the replacement date.

Registration of existing drones

A person who owns a drone that was manufactured in India or imported into India on or before December 31, 2021, must generate its unique identification number by filling out Form D-2 on the digital sky platform, provided that the drone has a valid Drone Acknowledgement Number (DAN) issued by the digital sky platform on or before the above-mentioned date and the type of drone complies with a certificate of airworthiness issued by the Quality Council of India.

Transfer of drones

A person can transfer a drone to another person by filling out Form D-3 on the digital sky platform with the transferor’s, transferee’s, and drone’s unique identifying number.

After electronic verification of the transferor, transferee, and unique identification number, the digital sky platform will generate a transaction number and enter it into the records.

Deregistration of drones

A person who owns a drone must ask for the deregistration of a drone registered in his or her name by filing an application in Form D-3 on the digital sky platform after determining that the drone is either permanently lost or permanently damaged.

The deregistration will be affected in the records, and the digital sky platform will generate a transaction number.

Drone operations

Airspace map

Within 30 days after the date of notice of these rules, the Central Government may publish on the digital sky platform an airspace map for drone operations that divides India’s whole airspace into red, yellow, and green zones, with a horizontal resolution of at least 10 metres.

Interactive maps

The airspace map for drone operations must be programmatically accessible via a machine-readable Application Programming Interface (API) and interactive, so that drone pilots can plot their proposed flight plan and quickly identify the zone(s) in which it falls to determine whether or not they need to submit a prior approval application.

Requirement of prior permission

Without prior permission, no one may fly a drone in a red or yellow zone.

Mandatory pre-flight verification of zonal restrictions

Before beginning a drone operation, a drone pilot must check the digital sky platform for any drone-related notifications or restrictions in the desired region of operation.

Dynamic nature of zoning

The Central Government may alter the status of an area from one zone to another by updating the airspace map on the digital sky platform for drone operations from time to time. Any such change must take effect within seven days of the date of its publication.

Temporary red zone

If there is an urgent need to temporarily prohibit drone flights in a specific area, the concerned State Government, Union Territory Administration, or law enforcement agency may declare a temporary red zone over that area, notifying it through the digital sky platform and highlighting it on the airspace map, for a period of not more than 48 hours at a time.

An officer with the rank of Superintendent of Police or its equivalent must declare the temporary red zone. The officer shall endeavour to make the temporary red zone’s size reasonable and not excessive.

The digital sky platform shall attempt to notify holders of unique identification numbers within a five-kilometre radius of the temporary red zone of such a restriction via electronic means, provided that failure to receive such information does not relieve a drone pilot of the responsibility to verify the zonal restrictions on the digital sky platform before flying.

Access to data

Direct access to the data available on the digital sky platform will be provided to all state governments, union territory administrations, and law enforcement agencies.

Remote pilot license

General

A drone may only be operated by a natural person who has a valid remote pilot licence registered on the digital sky platform.

Classification

Remote pilot licences must state the type of drone for which the natural person has completed the required training. If the aforementioned natural person has completed the specified training for automatic or autonomous drone operations, the remote pilot licence must state such.

Eligibility

The following natural persons are eligible for a remote pilot licence: 

  1. They must be at least eighteen years of age and not more than sixty-five years old; 
  2. They must have passed a recognised Board’s class tenth or equivalent examination;
  3. They must have completed the training prescribed by the Director-General for the applicable class of remote pilot licence from an authorised remote pilot training facility.

Procedure for obtaining a remote pilot licence

  1. Within seven days of passing the stipulated competency exam performed by an authorised remote pilot training company, the natural person shall be awarded a remote pilot certificate by such authorised remote pilot training organisation via the digital sky platform.
  2. The authorised remote pilot training organisation must pay the applicable fee for each remote pilot certificate given through the digital sky platform.
  3. Within fifteen days of the date of issue of the remote pilot certificate by the authorised remote pilot training institution, the Director-General may award the remote pilot licence to any applicant who meets the requirements set down in point (a) of procedure for obtaining a remote pilot license, using the digital sky platform.

Validity

  1. A remote pilot certificate is only valid if it is registered with the digital sky platform.
  2. A remote pilot licence is valid for ten years unless suspended or cancelled, and may be renewed by any authorised remote pilot training organisation for the period specified therein, subject to a maximum period of ten years. Provided, however, that the holder of the remote pilot licence attends such refresher courses as the Director-General may specify regularly on the digital sky platform.

Exemptions

A person who does not need a remote pilot licence if:

  1. Operating a nano drone or
  2. Operating a micro drone for non-commercial activities.

Remote pilot training organisation

General

A person seeking a remote pilot licence must get instruction from an authorised remote pilot training organisation.

Eligibility

The following eligibility criteria must be met before a remote pilot training organisation can be approved: 

  1. The remote pilot training organisation operates from a plot of land with minimum dimensions of 50 metres by 50 metres;
  2. The remote pilot training organisation has an adequate number of classrooms to ensure that no more than 30 students are in a classroom at any given time.
  3. The remote pilot training organisation has a sufficient number of drones and accompanying equipment in good functioning order to provide proper hands-on practical training to each student.
  4. The remote pilot training organisation has a sufficient number of teachers with current remote pilot licences who will be in charge of the students’ training.

Procedure for obtaining authorisation

  1. Any person who meets the eligibility criteria in sub-rule (2) and wishes to create a remote pilot training organisation must submit an application in Form D-6 on the digital sky platform, along with the required fee, to the Director-General.
  2. Within sixty days of the date of the application, the Director-General may award the authorisation for the remote pilot training organisation to any applicant who meets the conditions set down in point (a) of procedure for obtaining authorisation.

Validity

Unless suspended or cancelled, an authorization to establish a remote pilot training organisation is valid for 10 years and may be renewed for the duration stipulated therein, up to a maximum of ten years at a time.

Training requirements

  1. The approved remote pilot training organisation must ensure strict adherence to the Director General’s standards for training, competency testing, and the issuance of remote pilot certificates on the digital sky platform.
  2. The training requirements must be tailored to a specific drone class or classes.
  3. There shall be prescribed training requirements for automatic and autonomous drone operations.

Research and development

For research and development purposes, the following people do not need a certificate of airworthiness, a unique identifying number, previous approval, or a remote pilot licence:

  1. Research and development entities under the administrative control of, or recognised by, the Central Government, State Governments, or Union Territory Administrations;
  2. Educational institutions under the administrative control of, or recognised by, the Central Government, State Governments, or Union Territory Administrations
  3. Startups recognised by the Department of Industrial Promotion and Internal Trade;
  4. Any drone maker with a Goods and Service Tax Identification Number provided that such drone operations occur inside a green zone and on the premises of the person doing the research and development; or in an open area within a green zone under such person’s supervision.

Drone Traffic Management

  1. The Central Government may publish the policy framework for the Unmanned Aircraft System Traffic Management (UTM) System on the digital sky platform within sixty days of the date of notification of these rules.
  2. Such a policy structure must be following these rules and must make automatic approvals as required by these rules possible.
  3. The policy framework must include a framework for building drone corridors for drones’ secure transport of products.
  4. The said policy framework must specify the duties, authorities, and responsibilities of state governments and union territory administrations.

Insurance

The provisions of the Motor Vehicles Act, 1988, and the rules promulgated thereunder apply mutatis mutandis to drone third-party insurance and compensation in the event of death or property damage caused by a drone. A nano drone may operate without third-party insurance.

Promotion of drone

  1. The Central Government may establish a Drone Promotion Council to encourage the use and use of drones.
  2. The drone promotion council shall facilitate the following: 
    1. The development of a business-friendly regulatory regime, including automated permissions; 
    2. The establishment of incubators and other facilities for the development of drone technologies; 
    3. The participation of industry experts and academic institutions in policy advice; and 
    4. The organisation of competitive events involving drones and counter-drone technology.
  3. The Central Government may evaluate these rules based on economic impact which shall be documented in a six-monthly report that will list the achievements of the Indian drone sector and the measures taken to further the ease of doing business in the sector.

General

Fee

S No.

Service

Fee (Rs.)

1

Issuing a certificate of airworthiness

100

2

Issuance or transfer of unique identification number

100

3

Listing or renewal of remote pilot licence

100

4

Authorisation or renewal of authorisation of remote pilot training organisation 

1000

Note: Market-linked fees may be charged by authorities such as the Quality Council of India, certification entities, and authorised remote pilot training organisations, among others.

Directions

If necessary, the Central Government may give general or particular directions relating to drones that are not in conflict with the Aircraft Act of 1934 or these rules.

General power to exempt

The Central Government may exclude any person or class of individuals from the application of these regulations, in whole or in part, by issuing a general or special order in writing, subject to the circumstances specified in that order.

Prosecution for offences

A person who violates or fails to comply with these regulations will be punished by the Court under subsection (2) of Section 10 of the Aircraft Act, 1934, and such violations or non-compliance will be compounded under Section 12A of the Aircraft Act, 1934. 

The provisions of these rules shall be in addition to, not in lieu of, the provisions of any other law in force at the time.

Penalties

After giving a person an opportunity to be heard, if the Director-General or an officer authorised by the Central Government, State Government, or Union Territory Administration is satisfied that a person has contravened or failed to comply with the provisions of these rules, he may levy a penalty not exceeding rupees one lakh as per the provisions of Section 10A of the Aircraft Act, 1934.

Cancellation or suspension

After giving a person an opportunity to be heard, if the Director-General or an officer authorised by the Central Government, State Government, or Union Territory Administration is satisfied that a person has contravened or failed to comply with the provisions of these rules, he may cancel or suspend any licence, certificate, authorisation, or approval granted under these rules.

Saving

Nothing in these rules limits or restricts the Central Government’s authority to issue orders in the interest of public safety or the safe functioning of all manned and unmanned aircraft.

Conclusion

The need to revise the UAS Regulations 2021, which were released just four months ago after extensive stakeholder discussions, may reflect the drone community’s dissatisfaction with existing rules, which threatened to drown drones in a sinker of over-regulation

The government’s aggressive strategy to promote the usage of drones and emphasis on the development of counter-drone technologies to meet the threat presented by rogue drones is demonstrated by the decision to liberalise the drone policy even after the recent drone attacks in Jammu.

The current regulation is a positive step forward that will help India attract more investments in drone technology.

References

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Case analysis : M/S N.N. Global Mercantile v. M/S Indo Unique Flame Ltd.

By
Shoronya Banerjee
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0
Image Source: https://rb.gy/wbijvf

This article is written by Debasmita Goswami, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho.

Introduction

The Arbitration and Conciliation Act, 1996 (The Arbitration Act) was enacted with the sole intention of reducing the court’s intervention in the adjudication of the matters, providing easy redressal mechanisms for resolving the disputes and ensuring party autonomy. The Act is one of its kind further under Section 16(1)(a) which draws its genesis from Article 16 of the United Nations Commission on International Trade Law (UNCITRAL Model Law) enumerates the essence of “Doctrine of Severability” which essentially means that an arbitration agreement or an arbitration clause has the capacity to survive independently even if the said contract is repudiated or has been declared to be as void. The Hon’ble Supreme Court (The Apex Court) on 11th January 2021 in the case of M/S N.N. Global Mercantile v. M/S Indo Unique Flame Ltd. (Global Mercantile judgment) has set a landmark precedent overruling its erstwhile decision given in the case of Garware Wall Ropes Ltd. v. Coastal Marine Construction and Engineering Ltd (Garware judgment) and SMS Tea Estates Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd. (SMS Tea Estates judgment) wherein it had held that an arbitration agreement or an arbitration clause would be declared to be as invalid if the said contract in which the arbitration agreement/clause is embedded has not been duly stamped. The Global Mercantile judgment thus comes as a breath of fresh air for the parties further making India an arbitration-friendly hub and not making the parties entangled in the vicious circle of technical compliances. The Global Mercantile judgment being unique in its form upholding the essence of the “Doctrine of Severability” has therefore been extremely significant. Thus, for a better understanding of the readers, the appropriate reasoning given by the Apex Court in the Global Mercantile judgment has been further iterated below by the author.

Brief factual matrix

The parties Global Mercantile and Indo Unique entered into a contract termed as “Transport Work Order” for coal transportation from the washery. Further, it is significant to mention that Clause 9 of the “Transport Work Order” specified for furnishing of a security deposit in the form of a Bank Guarantee whereas Clause 10 of the said contract mentioned the arbitration clause. Series of disputes arose between Global Mercantile and Indo Unique, as a result, Indo Unique invoked the Bank Guarantee as per Clause 9 of the said contract to which Global Mercantile expressed its resistance by way of filing a suit. In retaliation, Indo Unique invoked the arbitration clause under Section 8 of the Arbitration Act in accordance with Clause 10 of the said agreement. However, Global Mercantile resisted this stating in its reasoning that the “Transport Work Order” in which the arbitration clause was enshrined was not duly stamped as per the provisions of the Maharashtra Stamp Act, 1958 and therefore argued that the arbitration clause stipulated in the said contract was said to be invalid due to non-stamping of the said contract.

Issue of the law raised

  • The core issue of law raised in the Global Mercantile judgment was that whether an arbitration agreement or an arbitration clause embedded in the contract would be said to be invalid on account of non-stamping of the said contract and non–fulfillment of the technical compliances. 
  • The second issue dealt with whether the allegation of fraudulent invocation of the bank guarantee is resolved by arbitration.

Analysis

The Apex Court in the Global Mercantile judgment has stood firm in establishing the true meaning and intent of the “Doctrine of Severability” placing its reliance on numerous International precedents one of the landmark being Gosset v. Caparelli, wherein the French Court has duly noted that the “Doctrine of Kompetenz–Kompetenz” signifies that an arbitration clause or an arbitration agreement has the capacity to survive the invalidity of the contract; is independent in its true meaning and essence. It further signifies that there is no room for direct impeachment of the arbitration clause. The relevant extract of the said French Court has been iterated below:

“In international arbitration, the agreement to arbitrate, whether concluded separately or included in the contract to which it relates, is always safe in exceptional circumstances, completely autonomous in law which excludes the possibility of it being affected by the possible invalidity of the main contract.”

Not only this the Apex Court has further placed its reliance on Section 16 of the Arbitration Act and Article 16 of the UNCITRAL Model Law which expressly mentions the independent survival of the arbitration agreement and the arbitration clause in spite of the contract being rendered as unenforceable. The Apex Court in its decision further observed, placing its reliance on Section 3 of the Maharashtra Stamp Act which in no way mentions that an arbitration agreement/clause needs to be stamped. Therefore, it can be safely put that the Maharashtra Stamp Act in no way acts as a hindrance with respect to invoking the arbitration clause enshrined in a non-stamped contract as has been expressly mentioned in para 6.4 of the Global Mercantile judgment. Not only this the Apex Court has further iterated the significance of minimal to nil judicial intervention of the courts in the adjudication of the disputes stressing on the non – obstante clause of Section 5 of the Arbitration Act and further stresses on Section 16 of the said Act. The interpretation of these two sections, when read in its entirety clearly, manifests that all the commercial and civil matters can very much be successfully resolved by arbitration even the issue of whether a contract would be rendered as voidable due to non-stamping can be also successfully resolved by the means of arbitration. With regards to the second issue dealt in this case, the Apex Court has expressly mentioned that erstwhile judicial precedents with respect to the arbitrability of issues related to fraud have been construed in its extremely narrowest forms and further mentioned that all the judgments which have mentioned that issues related to fraud are not arbitrable are archaic and are based on a biased interpretation of the notion of public policy. It can be safely said that the decision laid down in the Global Mercantile judgment enables the parties to invoke the arbitration clause in an unstamped document, seek interim relief, and for the appointment of the arbitrator. The Apex Court in this judgment has taken a contemporary and holistic approach which pronounces this judgment which has indeed been a boon for the arbitration regime.

Concluding remarks

In a nutshell, it can therefore be summarised that the Apex Court has rightly placed its reliance on the English Case of Heyman v. Darwins,  wherein, Lord MacMillan establishing the essence of English Common Law in his opinion has rightly iterated that: 

“It survives for the purpose of measuring the claims arising out of the breach, and the arbitration clause survives for determining the mode of their settlement. The purposes of the contract have failed, but the arbitration clause is not one of the purposes of the contract.”

The Global Mercantile judgment has been a welcoming one upholding the essence of Section 16 of the Arbitration Act and dignifying the intent with which the draftsmen had drafted this Act. The sole intent of this Act is to safeguard the “Equitable Rights” of the parties and not forcing the parties to knock the doors of litigation or taking litigation as an alternative remedial mechanism which in no way will serve the true intent of the Arbitration Act and the parties will be forced to suffer the agony. The courts India through its precedents shall set examples and must encourage the parties to opt for arbitration as an alternative dispute resolution mechanism and not put so much stress on the technical compliances rather, the emphasis should be put on the larger picture which would serve to be beneficial for the parties. The Global Mercantile judgment has not only proved to be a landmark precedent on the national front but has also been of equal significance in the international arena. This precedent is definitely going to benefit an international business in accordance with the arbitration regime established in India. This judgment has further taken the onus to clear the air with respect to the disputes relating to the arbitrability of fraud in India and has resorted to a holistic interpretation while pronouncing the decision on this subject matter. This judgment has definitely set a new bar and has instilled a ray of hope among the parties rightly upholding the essence of the two landmark principles intertwined together being “Doctrine of Severability” and “Kompetenz Kompetenz.”

References

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COVID-19 pandemic and student examinations

By
Diganth Raj Sehgal
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0
https://bit.ly/3ie2qYW

This article is written by Astitva Kumar, a student from Guru Gobind Singh Indraprastha University. This article discusses how the Covid-19 pandemic has caused us to take a fresh look at our examination system in respect to the above case laws, as well as the constantly changing student-teacher interactions.

Introduction 

The greatest public health concern that the world is currently facing is causing the greatest and fastest restructuring or reorientation of the Indian educational order. The globe is currently in peril as a result of the Coronavirus outbreak. Almost all nations have been affected by the virus’s direct and indirect consequences, and the lives of millions of individuals have been altered, in many cases irreversibly. 

The COVID-19 lockout and subsequent transition to virtual learning have prompted us to examine the student-teacher dynamic and the examination system for flaws. Teachers could make rounds in the classroom and examine each student’s performance and understanding individually in the old days. In contrast, when teaching online, professors are required to turn off their students’ microphones to avoid disruption, effectively shutting down student doubts, criticism, and involvement. Pupils can no longer express their concerns in a one-sided discourse, and teachers can no longer assess their students’ comprehension levels. 

The COVID-19 pandemic has wreaked havoc on school systems all around the world, affecting about 90 percent of the world’s student population. Over 1.5 million schools in India were shattered owing to the pandemic, affecting 286 million children from pre-primary to secondary education. This is in addition to the 6 million girls and boys who were already absent from school before COVID-19. This disruption in education has serious economic consequences as well.

The dilemma over examination during the time of the pandemic 

During the COVID-19 epidemic, the word “social distancing” – both imagined and actual – appeared to be the critical concern of existence, to the point where every collective space must now be organized in terms of individualized safety, which will reconstruct social interactions in the future.

Exams in schools are no longer possible as they once were. Written exams with a massive syllabus are suddenly made ineffective. The entire system has been put under the microscope, and understanding of the curriculum has taken precedence above grades. Since the outbreak of the pandemic, education has shifted online, and to a significant extent, in both schools and colleges around the world. Online instruction and testing have now become the new normal. In this state of siege, information technology has emerged as a hero.

Examination, which has taken center stage in disputes over the Union government’s intention to organize tests in the sphere of national “technical” education – medical, engineering, computer sciences, business administration, biotechnological sciences, and so on – despite the epidemic.

The debate has refocused on the question of life safety (of students). Against the backdrop of the question of life, the need to maintain the academic calendar as the focal point of educational activities is raised.

Many schools, colleges, and universities have continued to focus on ways to make examinations failsafe by using proctoring and cameras, many schools have begun to rely on data to provide insight. Many institutions who hopped on the live class bandwagon simply altered the mode of delivery from in-person instruction to using tools like Zoom and Teams.

An analysis of the case of B Ramkumar Adityan v Principal Secretary and Ors. (2020), Prof Dr. E Balaguruswamy v. The Principal Secretary and Ors. (2020) 

Former Anna University Vice Chancellor, E Balagurusamy has again expressed his disagreement with the Tamil Nadu government’s position, this time on the state’s decision to cancel all students’ arrear exams except final year students. According to Balagurusamy, this would lower university academic standards.

He went on to say that universities do not conduct tests and award grades based on the ‘whims and fancies’ of students and politicians. Universities are highly independent organizations, with syndicates, senates, and academic councils wielding complete power and authority over the conduct of tests and the dissemination of results. Governments have no jurisdiction to interfere in university academic concerns or cancel exams unilaterally. 

It is high time that Vice Chancellors wake up and realize their autonomous status and resist any such unethical moves in the interest of the quality of education and image of the universities. Exempting students from writing semester exams is one thing and canceling failed students’ arrear exams and making them pass is entirely a different thing. People should not confuse these two. 

In response to the matter, he stated, “I understand that many students have more than ten arrears and achieved less than 20 percent in most disciplines.” How can a university proclaim these pupils to have passed simply because they paid the exam fees?”

“It’s ludicrous,” he claims. Such a move will not only degrade the university’s academic standards but will also harm its legitimacy. It seems unfathomable that a world-class university like Anna University would make such a lopsided conclusion. 

The contention of parties to the case 

The State’s Advocate General Vijay Narayan argued that the decision to cancel the arrear tests was made following the UGC’s rules, which were released at the height of the COVID-19 pandemic. He also made contributions to the assessment performed for students whose arrear exams were canceled, which were based on prior semester grades. He went on to say that the Government Order passed in August did not apply to five types of students, including those in law, agriculture, teacher education, medical, and engineering schools. It was also revealed that the Vice Chancellor of Anna University had refused to execute the GO, citing All India Council for Technical Education (AICTE) directives.

Advocate S Shanmuga Raja, appearing on behalf of a petitioner-student, presented a complaint that universities outside Tamil Nadu are not granting students entrance to higher education even after final exams since certificates have not yet been provided.

The UGC’s counsel claimed that it had never permitted the State to allow college students to automatically pass exams and that it had merely offered instructions to assess students in certain ways, taking into account local economic conditions.

Findings of the court 

The Madras High Court expressed strong reservations over the Tamil Nadu government’s August, 2020 decision to cancel arrear exams for college students during the COVID-19 pandemic, calling it an ill-advised political action that has resulted in turmoil.

The Court ruled that the decision to allow students to pass tests with proper evaluation is unconstitutional and asked the State to engage with the University Grants Commission (UGC) on actions that may be necessary to remedy the decision to cancel the arrear exams.

The Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy also ordered the State to provide data regarding the number of students who applied for re-writing their exams (arrears), as well as the number of such students who passed or failed. “We are looking at lakhs of students’ fates,” he remarked. This measure has been taken, whether it is good or negative. (What steps may be made to correct it) so that it ceases to be the farce it has become? Experts in the area work for you (UGC). Please ask them to consider how they can do this without jeopardizing the system’s integrity so that these children’s futures are not jeopardized. This is the type of rash political choice that wreaks havoc.”

The Chief Justice went on to say that interim certificates could be awarded to people who have yet to take the exam but want to pursue national-level admission exams, with the proviso that their college degrees would be contingent on them passing the supplemental exams. This would allow for participation in the admissions process.

“The fullest particulars should be (produced) by the State on a university to university basis and, if possible, on a college to college basis, indicating the number of students who had applied for each course to rewrite the exams and the number of students who were found to have qualified upon any process of evaluation which (may have been) undertaken,” the Chief Justice suggested in the order. The Court went on to say that it does not intend to rule that these students have all failed. However, the Court may rule that these students would be considered to have completed their exams only if they go through and pass some sort of evaluation process that is laid out following UGC norms. 

Students and their future in this pandemic 

Education is the key to human progress and society’s future. It creates possibilities and reduces disparities. It is the cornerstone of a knowledgeable, tolerant society and a fundamental engine of long-term growth. The COVID-19 epidemic has caused the most significant interruption in education in history. 

Nobody imagined that the greatest disruption of all would come from a virus, despite all the reinventing of education in the twenty-first century. The COVID-19 pandemic, which was caused by a novel coronavirus, has changed the lives of millions of people all across the world, including students. Indeed, by June 2021, the number of students forced to stay at home owing to the closing of their educational institution at all grade levels will have increased significantly.

The generations we are presently teaching have grown up in a globalized society. Generation Z (those born between 1997 and 2015) students are likely contemplating the future of their education in the aftermath of a genuinely global pandemic, with examinations and other academic events canceled. Technology has shaped this generation, and their expectations revolve around fast communication and feedback. This is also a generation that understands the value of working together to address the world’s most pressing issues: sustainability, customization, and collective responsibility are all on their agenda.

The next generation, known as Alpha, will be the first to be entirely digital. This is the generation for whom social media is a way of life and technology is merely an extension of their own identity. This generation’s students may be unaware of the worldwide consequences of their actions. 

COVID-19 is likely to affect the future of education in the following ways:

  • Governments must begin planning now to put in place strategies to reach the youngsters who are most at risk of dropping out. Two sets of recommendations for decreasing dropout following a crisis: 

A. Combine community involvement with large-scale direct communication programs to parents, and consider expanding attendance options to suit all children, even those who are most likely to drop out.

B. Provide monetary or in-kind assistance, such as school food, to assist families in meeting the costs of attending school.

  • The government needs to address the issue of learning loss and, therefore, implementing large-scale catch-up initiatives should be the primary priority. The first step is to identify which students are at risk of disproportionate learning loss, which may be done even while schools are closed using phone-based tests. Without targeted, evidence-based interventions, the gap between rich and poor children will increase even further during the months of school closure. This can be accomplished in three stages: 

A. Engage students in accelerated learning interventions to reverse crisis-related learning loss and improve future learning trends. 

B. Teachers should be given training and coaching so that they can assist kids in catching up, and school/college surroundings should be kept safe and secure. 

C. To improve future outcomes, engage parents by using their existing involvement in distant learning.

  • One of the most difficult decisions for policymakers to make during COVID-19 is what to do about examinations. The COVID-19 shutdown is bringing attention to the importance of high-stakes tests and sparking debate about whether they are a fair way of screening children with widely different early-life experiences into the next stage of education. Alternative and more equitable approaches for managing transitions from one educational phase to the next should be considered by governments.

Conclusion

Online education is increasingly more than just a supplement to traditional classroom education. It announces new boundaries of accumulation as a method of distance learning. Consider bank loans for educational purposes, for example. A lapse in the examination schedule is analogous to a lapse in loan repayment. Perhaps there is a hiccup in futures trading.

As a result, “social distancing” must be combined with regular tests, rigid academic calendars, and a consistent pattern of employment recruitment – particularly in technical and medical education. Capital circulation in social spheres such as health and education must not be stagnant. 

References

 

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