By Mrinal Datiwal student of Rajiv Gandhi National University of Law, Punjab.

Plot Summary

One fine morning, 12 men were called to sit in a jury to serve their duty of imparting their perspective over a murder trial. The accused is on trial for first degree murder of his abusive father. Since, the setting of film is based according to rules and norms of 1950s, which means if defendant is convicted, he’ll receive death sentence by electric chair.  There were conflicting opinions among the jurors, they were divided on whether the defendant is guilty or not. Most of them formed opinion against defendant, though the opinions were driven by the events happened in personal life of jurors. In order to form unambiguous decision, one of the Jurors suggested to present the reasons behind verdicts of each juror as a method of convincing all.

Eventually by the way of logic-based reasons, jurors switched their vote. Initially, it seemed the defendant will be getting a chair but Juror eight’s arguments convinced rest of the jurors.

Justice & Morality

12 Angry Men, this film is about how the justice system is supposed to work in the welfare of society and why the judges should not be subjective in providing a decision as it is harmful and non-acceptable for maintaining social harmony (implied in the movie), before further explanation let us see how the justice system is derived and its relation with morality. The very first principle enshrined under natural law is “Good to be done and pursued and evil to be avoided”Historically, the term “natural law” has been used to describe the practise of using rational analysis of human essence to bind standards of moral conduct. Our whole theory of jurisprudence, our Constitution, is based on “natural law” & “How the world ought to be and how people ought to behave”, these two sentences connect the concept of Morality and Justice. Morality is universal in nature and justice system on the other hand may vary from place to place. Even though justice varies in territories but justice is derived from the morality that exists in the mind of most rational citizen of society. Justice is about providing or serving people with their rights, it’s a set of rules which control the social behaviour of people while morality is related to concept of good and bad. Point to notice is that moral views are contradictory from person to person or culture to culture. So, when your personal conception of morality is not socially acceptable, you may end up facing justice system.

Ronal Dworkin, Interpretivism & Hard-Case

Interpretivists claim law has a relationship with ethics and morality. The modern jurisprudential and philosophical tradition known as “interpretivism” is typically linked to the American philosopher and jurist of American constitutional law Ronald Dworkin. When the facts of a case are ambiguous, it can be difficult to determine how the law should be interpreted and what decision should be made. According to Ronald Dworkin, Riggs v. Palmer is an example of a “hard case.” [i] In this case, Palmer left significant part of his property and asset in his will to his grandson and relatively lesser amount to his two daughters. His grandson Elmer Palmer feared that the will could be altered and in order to prevent any alteration in will, he killed his grandfather by poison. Although, Elmer Palmer was put on stand for crime of murder but there was no provision whatsoever available to prevent Elmer Palmer to claim inheritance. Plaintiff in the case argued if the inheritance is transferred to defendant, then it would mean that Elmer Palmer is profiting from his crime, which is contradictory to the morals of society and, ultimately against the purpose of law. Court ruled in the favour of plaintiff – “ “by the reason of crime committed by Elmer Palmer upon his grandfather, Elmer was deprived of any interest left by the testator as he could not vest himself with title by crime.”

In the above case it was decided what society thinks is just, similarly in the movie 12 Angry men sentencing a person to death without looking at the reasonable doubts is against the society norms. Dworkin advocates interpretivism as a means to settle contentious situations by interpreting the relevant sources in such a way that a “correct” decision becomes apparent.

Right Thesis

Dworkin’s work states that rights are more fundamental than rules, the thesis argues, both within the scope of legal practise and with a proper knowledge of the nature of law. Dworkin insists that judges should not base their rulings on their personal political understandings but rather on their confidence in the legitimacy of those rulings, even if this means that different judges arrive at different conclusions. In the context of the movie 12 Angry Men, the movie started and every one of the jurors is convinced that the boy on trial is guilty because of their personal prejudice and grudge against their own personal kids (in the case of juror #3). Without looking at the reasonable doubt they all were ready to serve him to the chair (it’s a method of executing a person in old time). According to Dworkin, there is always a clear option (the right answer) that fairly weighs competing values or principles, safeguards fundamental rights, and is consistent with the norms of society. The decision is hazy or at random under hard cases. This occur when: 

1.The attorneys could not reach a consensus on their client’s legal rights.

2.When a well-established rule cannot be applied to the facts of the case, or when doing so would lead to an unacceptable result.

When a sceptical individual claims that there is no right response, Dworkin compares this to a substantive moral claim, which is based on person’s self-beliefs. [ii]There is right answer in hard cases, hidden behind reasoning.

Conclusion

As I discussed Natural law concerns with morality and judgement capability inherent in human nature. In the film it was seen that 12 people were being called to sit on a jury of 1st degree murder trial. 11 out of 12 jurors are convinced that the defendant is guilty but one of the jurors used his simple reasoning skills to find out if the boy is really guilty, he was just not ready to sentence a man to death without having a proper look at the evidences & testimonies of eye witnesses. This film explains how people’s personal prejudice and biasness affects outcome of any trial. Ronald Dworkin in his work (RIGHT THESIS) said different judges may come to different conclusions based on their own political and personal affairs but he insists that judges should focus on soundness of those convictions. Natural law theory imitates a perpetual quest for absolute justice.

In the climax of film, the arguments based on reasonable doubts of juror #8 finally convinced all the others that the defendant is not guilty. Thus, doesn’t deserve sentence to death by chair.

References-

[i] Riggs V Palmer [1889], 115 N.Y. 506 [1889]

[ii]Teoh Wen, “DWORKIN – right answer and hard cases”, academia.edu, Available at –

https://www.academia.edu/4270113/4DWORKIN_right_answer_and_hard_cases (Accessed on – 22 December 2022)

By Prakhar Dubey student of University of Petroleum and Energy Studies

FACTS OF THE CASE

Here the case concerned rights of animal given in the constitution with respect to the conducting of Jallikattu, bullock cart races etc.

For the same, there were two sets of case, one challenged the Judgment of Madras High Court filed by the petitioner i.e., Animal Welfare Board of India and along with People for ethical treatment of Animals (PETA) [i]. The other set of case was regarding the notification by MoEF which prohibit all bullock cart races, games, exhibition etc. which was uphold by Bombay High court.

CONTENTIONS RAISED

PETITIONERS

1.Animal welfare board of India argued that by no stretch of imagination, practices like jallikattu or bullock carts has any historical, cultural or religious significance and even if there is any such significance, it will be trumped by the welfare legislation like Prevention of Cruelty to animals Act.

2.Animal welfare board of India further argued that bulls are subject to pain and suffering and clearly breaches the condition mentioned in Section 3 of Prevention of Cruelty to Animals Act.

To corroborate, the AWBI quoted their findings and research which highlighted that in order to make bulls violent, they are even taunted, stabbed, beaten and not even provided food which is clear violation of PCA Act.

RESPONDENTS

1.On the other hand, the people who are conducting the Jallikattu and bullock cart race argued that these kinds of events usually take place at the end of each harvest season and is going on for more than three hundred years and therefore has become custom and tradition. For the same, extreme care and protection are being taken so that bulls participating in the event doesn’t face pain and suffering. Further it argued that the conduction of such events also has an economic benefit. As these events attract large numbers of people bringing revenue for the state.

2.On similar line, State of Tamil Nadu contended that bulls participating in the event are specifically identified, trained, and nourished for such events and every possible step is taken so that there should be no suffering which should be caused to bulls.

JUDGMENT AND REASONING

The court unanimously held that Jallikattu, bullock cart race etc. violate PCA act and therefore upheld the notification issued by MoEF that prohibit such activities. Furthermore, the court held that the TNRJ act is violative of PCA act and therefore is constitutionally void.

The court first understood the behavioral ethology of bulls that is the fight or acute stress response and reasoned that when bulls are frightened or threatened, they adopt the flight response, and they move to different place in the arena but cannot as the arena be completely enclosed. In the same, they have to face distress, fear and pain. With the same reasoning, the court rejected the arguments of organizers and State of Tamil Nadu, that bulls don’t face any pain and suffering.

With respect to bullock cart race, the court observed that despite of various directions, no action is taken to ensure that animals are not subjected to torture and cruelty.

The court further noted that the arguments and reasoning presented from the side of TNRJ where the Act give reference to ancient  tradition and doesn’t mention that it has any kind of religious significance and even the ancient text does not support the ethos of jallikattu or bullock cart race, if we start to see the modern practice in which it is conducted. The Indian culture is to worship animals and not to inflict any pain on them2.

Interesting observation of the court was with respect to right to life. The court observed that one of the key elements of Article 21 of the Indian Constitution, is protecting the rights of the humans and the definition of life has been seen in widest amplitude to consider different conditions and thus it also includes aspect of environment which is equally necessary for animal life, and human life, as of now concerning animals, life should be considered more than just survival or mere existence but actually to lead a life with dignity and freedom. The PCA has specifically recognized the animal welfare and wellbeing and this should also be recognized as important feature of constitutional right. 3

Another notable aspect of the judgment is the discussion  non-essential activities. There are lot of avoidable and non-essential practices which include different activities like bullock cart races, Jallikattu etc. and   only have instrumental value and completely ignores the welfare of animals for human pleasure. 4

Apart from the judgment, the court also issued twelve directions like AWBI and government were directed to ensure that any person-in charge of animals should not inflict any kind of pain on the animals and it was also directed that the it shall be responsibility of Parliament to bring an action which can raise the standards for animal and protecting the constitutional rights of these creature as it has been done by different countries. 5

CRITICAL ANALYSIS

This is a landmark judgment as it enhances the status of animals and gives voices to the silent victim. The practices like Jallikattu, bullock cart race, even without any religious significance has been performed as they have been performed for long time. The judgment clearly negates this idea that merely any practice has been existing for long time, it doesn’t give any right to perform it for another long time.

Furthermore, the judgment touches upon the fact that animals have been considered as the property and therefore, the owner has absolute right over it. The judgment observes that after the deletion of right to property from Article 19, parliament becomes more empowered to pass any laws which are necessary for the protection of rights of animals and thus from now right to hold animals have become a legal right and not per a fundamental right.6 This observation depicts the concern that the Hon’ble Apex court has as they are even suggesting the parliament a constitutional way to regulate it.

The court discussed on animal rights with respect to other inequalities like casteism, racism, sexism and how they have been eradicated through various laws and constitution. The court suggest that legislative vacuum present with respect to right to animals needs attention just like any other inequality, In the same pursuance, the court also hinted that animal rights are unequal with respect to human rights. To corroborate, the court also discusses the avoidable and unavoidable pain, like utilizing animals for transporting loads is unavoidable but at the same practices like Jallikattu and bullock cart race, which are only for entertainment practices, are avoidable, and shall be avoided.

Drawbacks of the Judgement-

Though the court engages into detailed discussion of the case, but ignores some doubts with respect to the fact that “Whether the court meant that there should be ban on Jallikaattu and other such activity?” Generally, in the leading cases the apex court has called for, 7 prohibition and not regulation.

second,the court adopted the right based approach rather than the duty-based approach. As being mentally capable like Humans, the duty-based approach would be more suitable for animals rather than right based approach.

References :-

[1] Tamil Nadu Regulation on Jallikattu Act, 2009

2 Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547, ¶ 53. [Hereinafter “AWBI”].

3 Id. at ¶ 72

4 AWBI, supra note 1, at ¶ 71.

5 Id. at ¶ 91.

6 Id. at ¶ 65.

7 Compassion Unlimited Plus Action v. Union of India, 2016 SCC OnLine SC 31.

By Archismaan Tyagi and Mehu Mohan students of University of Petroleum and Energy Studies

Introduction

According to Forbes India Venture Debt Market is Booming, venture finance disbursed increased from $271 million in 2019 to $538 million in 2021, almost double. According to experts, a major contributing factor to the rise in demand is the drying up of the equity markets. The momentum is also not anticipated to slowdown. Startups have turned to venture lenders who offer debt funding, as the macroeconomic environment deteriorates and venture capital (VC) investors decrease the pace of signing cheques to start-ups.[i]

Venture debt is increasingly emerging as an attractive source of finance for start-ups. Why is this so?

The best way to think of venture debt is as a link or nexus or gap between traditional loan and equity funding. The purpose of venture debt as a source of finance is to meet the startup ecosystem’s need for debt without the dilution of equity. Venture loan investors often meet the financial needs of early-stage and growing businesses searching for extra funding to support their expansion while partnering with the investee businesses with the aim of long-term gain. Service businesses that typically lack assets dominate the expanding Indian start-up environment. Due to a lack of suitable security or collateral, they find it difficult to receive financing from established sources such as banks and NBFCs. This is the market void that venture debt aims to fill.

Start-ups, by their very nature, usually cannot use retained earnings, or traditional debt, as sources of finance. Hence, a lot of them have to turn to PE/VC investors for raising capital.

What is Venture Debt?

It is an onshore funding route that can be elucidated as a nexus or bridge between traditional debt and equity financing. The purpose of venture debt as a product is to meet the startup ecosystem’s need for debt. Typically, venture debt investors meet the financial needs of early-stage and growing businesses that need additional funding to support their expansion and collaborate with the investee businesses with the aim of long-term gain. Today’s Indian startup ecosystem is dominated by asset-light service-based businesses. Due to a lack of suitable security or collateral, they find it difficult to receive debt from established sources like banks and NBFCs. This is the market void that venture debt is attempting to fill.

Rather than the investee’s assets and cash Row situation, venture loan instruments are underwritten based on the venture capital raised by the investee and the investee’s development prospects (as is the case with other lenders like banks and other financial players). As a result, it is a preferable option for startups and service enterprises with limited assets. Furthermore, venture debt is a medium-term financial product with a three-year average lifespan, as opposed to the 6-7 years of other conventional business loans. While venture capitalists are frequently sector agnostic, they have been active in fintech, e-commerce, food-tech, ed-tech, healthcare, consumer brands, logistics, and other industries.

Difference Between Venture Debt and Equity Funding in Fund Formation?

While venture debt and equity fund both aid entrepreneurs, the difference lies in the methods that may vary according to the business model. The following are some of the ways that venture loans and equity differ:

1.In exchange for capital, venture capitalists sometimes want a sizeable portion of the company’s stock. On the other hand, issuers of venture debt often avoid owning any equity in the business.

2.In the case of venture debt, the debt cost is fixed and only subject to the agreed-upon interest rates between the company and the entity issuing the debt. The value of equity, on which venture capitalists frequently rely, fluctuates over time and can do so substantially depending on the success of the company’s shares.

3.Similar to a bank loan, venture debt calls for the repayment of the original sum as well as the interest that the lender would have initially charged the borrower (i.e., the start-up).

4.The average payment for venture debt is lower than that of venture capital, despite its returns being less risky than those of venture capitalists

However, PE (Private Equity)comes with a lot of strings attached. Since equity guarantees no return, PE/VC investors negotiate a number of contractual rights to protect their interests— information rights, board seats, vetoes on key governance decisions, etc. This allows them to exercise some degree of control over the business, so that they can (to some extent) prevent the business from conducting itself in a manner that reduces the value of their investment. The investor also takes a shareholding in the company, so that they can share in the upside of a possible increase in the value of the business in future.

Thus, PE comes with two key downsides: (1) dilution of the founders’ control over the business; and (2) dilution of their shareholding, which reduces the proportion of an increase in the value of the business they can enjoy. Venture debt avoids both of these problems— that is the upside. The downside is that it requires periodic cash outflows for repayment.

A typical VD(Venture Debt) deal looks like this:

It is a compliment to, not a substitute for private equity. A VD deal is usually closed shortly after the startup has secured a PE round (such as a Series A).

The investment amount is around 20-25% of the value of the last PE round.

The tenure is 1-3 years. The interest rate is 12-15%. It is a short-term, or medium-term, source of finance. Thus, it is best used to complement a PE round, or as an interim source of finance that buys more time to secure more finance.

It is structured as a subscription to convertible debentures of the investee company, or a term loan accompanied by warrants. The debentures, or warrants, give the investor an option to convert around 10% of the debt due to them to shares at a point of time. This is a potential upside if the value of the business increases substantially.

The business has to repay the debt in periodic instalments. Some deals may provide an interest-only period for some part of the tenure (during which only the interest is paid down, with the principal to be paid down after that).

Financial covenants – limitations on how the business must be run, to protect the investor’s interests – are very minimal.

What diligence standards apply to a venture debt investor?

Before making an investment, venture debt investors go through a less thorough due diligence procedure than do equity investors. Venture debt investors typically find comfort in the thorough due diligence and investment made by the investee company’s equity investors.

Are investments in venture debt protected? If so, what security package is typical?

Because the debtors are often asset-lite enterprises, venture debt is frequently secured by hypothecating current and prospective assets, including the intellectual property/brand of the investee companies. Lenders may also request corporate guarantees from controlling companies or important subsidiaries of the borrowing corporation. In some cases, promoters must also provide a personal guarantee.

As a result, a venture debt’s security package is significantly less broad than that of a bank or financial institution loan, which comprises fixed charges on defined assets, floating charges on all other assets, corporate and individual guarantees.

A term loan agreement or a securities subscription agreement is frequently used as the master contract that governs the parties’ rights and duties. The parties also execute a hypothecation document to cover the provisions of the security package. The investee company is needed to appoint a debenture trustee to hold the security and the debentures for the benefit of the subscribers/debenture holders in an NCD (Non-Convertible Debenture) subscription. As a result, the investee company and the debenture trustee enter into certain extra documents relating to the appointment, as well as the debenture trustee’s and the investee company’s rights and obligations. Despite the fact that they were founded by non-resident investors, the bulk of venture debt investors in India are Indian companies.

If the investment is set up as an External Commercial Borrowings, the borrowing entity’s end-use of funds is limited, such as for working capital needs and general corporate purposes. Furthermore, the strategy is commercially unviable for venture debt investments due to the minimum loan maturity and all-in-cost ceiling (i.e., the highest return that may be delivered to the lender).

According to Indian exchange control legislation, any partially paid securities that non-resident investors subscribe to must be fully paid up within 12 months of issuance. They are unable to benefit from the equity kicker because of this constraint, which is structured through the subscription of partially paid instruments. Residents do not face the same restrictions as non- residents. Given that venture debt has features that permit the issue of equity shares, any issuance of equity instruments to non-residents must be done at a price that provides the investee Indian firm with a valuation of at least the fair market value of the investee company’s shares. As a result, exercising the right to subscribe at a later time at a pre-agreed price (which is frequently based on the investee’s valuation at the time the venture finance is granted) becomes challenging. Because they do not apply to resident investors, the pricing guidelines are easier to structure. Foreign investors have chosen to establish captive vehicles in India for on lending as a solution to these problems.

As can be seen, venture debt, often known as ‘venture lending,’ is a relatively new model that is quickly becoming a popular way for enterprises in India to raise capital.

Reference-

[i]https://www.forbesindia.com/article/take-one-big-story-of-the-day/why-the-venture-debt-market-is%C2%A0bubbling/80331/1

By Hetanshi Khajanchi student of Institute of Law, Nirma University

Introduction

Superstitions play a significant role in India’s variety, which encompasses religion, culture, race, customs, and so forth. Every person has a faith and a conviction that subtly alludes to a superstition. Sometimes customs that date back a very long time are labeled as superstitions, but they actually have a scientific basis that is also abused by those in a position of power in society who turn them into laws, use them as a basis for propaganda against particular people, or use them for some sort of self-gain.

Experts and behavioral scientists think that people tend to lean toward supernatural ideas and practices when they have no other options and are faced with uncertainty, fear, or an emergency. When all other avenues have been exhausted and resources are depleted, emotions may also encourage superstitious behavior. The growth of commercials on magic healers and gold medalist “babas” are becoming more common as people get more active on social media. This is the point that people cheat and commit fraud using their emotions. People frequently believe that it is the simplest way to get what they want. The twisted side of India’s contemporary civilization is exposed by recent murders perpetrated in the name of superstition. 

Over the past few years, numerous regions of the nation have reported horrifying tales of human sacrifice and gruesome crimes under the name of black magic. In 2018, the horrific story that came out of a residence in Delhi’s Burari, when 11 family members committed suicide as part of a ritual, shook the entire nation. Activists have emphasized that hundreds of people in the nation had recently perished as a result of superstitious beliefs. In October 2022, two women were brutally attacked and killed in the name of “human sacrifice” in Kerala, has rekindled calls for all-encompassing action to combat the threat of destructive and dishonest activities carried out in the name of faith. 

Even while education is crucial for putting an end to these practices, there is a dire need to confront the widespread use of black magic. There is a fine line between traditions and superstition that needs to be defined in law since some people think these traditions and rituals performed in the name of faith may be regarded as a manifestation of religion. 

The first state to pass legislation banning witchcraft and situations in which women are accused of being witches and subjected to torture was Bihar in 1999 with the “The Prevention of Witch (daiaan) Practices Act, 1999.” Many Indian states have passed legislation to deal with crimes like witchcraft, black magic, and other superstitious practices that masquerade as common but violent crimes since 1999. The regulations are specifically intended to combat false claims that people “possess magical or miraculous treatments or powers and anti-social and harmful behaviors,” which run counter to real and credible medical research and treatment. The laws also refer to the terrible practice of human sacrifice expressly.

The history of the anti-superstition bill began with the introduction of the first version in 2003. The 2003 bill was referred to as the “Jadu Tona Andhashraddha Virodhi”. The bill’s introduction marked the first time a law of this nature had ever been proposed in the country. The majority of parties, who actively opposed the measure and thus due to political complications and elections, this bill could not become a law.

A new draft was filed in March 2005, two years after the one proposed in 2003, with a few slight adjustments. A revised version was ultimately authorized on December 16, 2005. A somewhat broad definition of “Black Magic” or “blind faith” was included in the March bill; which defined it as “Practice by oneself or via another while claiming to have supernatural powers, divine powers, or the power of the spirit involves treating, curing, or healing physical and mental issues while causing monetary or financial harm to a person.”

“The Maharashtra Prevention and Eradication of Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013”, was widely publicized anti-superstition legislation approved by the state of Maharashtra. Black magic, or the use of it to treat ailments, and other practices that feed on people’s superstitions are all prohibited by the law. The Act aims to decrease superstitions that cause property damage and financial loss. The offender faces a fine of between Rs. 5,000 and Rs. 50,000 and a term of between six months and seven years in prison if proven guilty.

After the regulations in Maharashtra, the state of Karnataka approved the “Prevention and Eradication of Inhuman Evil Practices and Black Magic Bill” in 2017. This piece of law is known as the  “Anti-superstition Bill.” It has provisions to deal sternly with abhorrent practices including human sacrifice, exposing women in the naked state, and sexual exploitation using supernatural entities. Penalties for distributing false information and causing panic under the guise of ghosts or black magic are specifically listed in the Karnataka legislation.

In 2013, Odisha prohibited “witch hunting” and the exercise of witchcraft by the “Prevention of Witch-Hunting Act”. Additionally, it makes the work of “witch doctors” illegal and stipulates that anyone caught doing such acts on another person will be imprisoned for a time that must not be less than a year and may not exceed three years.

In 2015, the “Tonahi Pratadna Nivaran Act” was passed in Chhattisgarh. According to the law, it is unlawful to classify anyone as a “tonahi,” which is used to describe “any person or persons that will harm or possesses power to harm or thereby he intends to harm any other person or persons or society or animal or living things by black magic, evil eye, or by any other means.” If found guilty of the crime, the statute allows for a five-year maximum prison sentence.

In case there is no specific legislation to address the practice of black magic, anyone may file a FIR under Section 154 of the Code of Criminal Procedure,1973 and Section 508 of the Indian Penal Code, to report black magic-related actions to the police. This is the closest the law has come to addressing the subject of black magic, despite the fact that there is no specific provision to do so. This clause covers any deed performed out of fear of divine wrath, and whomever caused it will be held accountable for the crime it constitutes.

In addition, even if legal action cannot be taken against a person for engaging in black magic, the consequences of the practice may still constitute an offense for which a person may be punished under the Indian Penal Code. For instance, if someone aids in the killing of another person, this may constitute murder and aiding the commission of murder; all that is needed in this case is the fulfilment of all the requirements to prove the crime.

The legal fight against superstition is only half the battle. The general public needs to be educated utilizing social media campaigns, street plays, and mass media. The problem of superstition must be addressed by our traditional educational system. Legislators are putting in gallant efforts to curb crimes committed under the guise of black magic by making unrealistic and false promises to innocent individuals.

The Constitution has granted freedom of religion, which has been abused and many destructive actions are carried out in the name of the faith. Superstitious beliefs are considered to be a social ill. Additionally, not all unlawful behavior is covered by the penal code. Only murders committed using black magic or superstition are covered by the code. The charter describes harassment and violence as “basic pain.” Enactments are established at the state level to combat superstition and black magic. But in order to eliminate such immoral actions in the guise of religion, there needs to be national legislation with harsh penalties.

India needs more legislation to combat the harmful consequences of superstition and superstitious beliefs. Even the current laws can be strengthened and still have enough holes to be abused. To discern between criminal action, humanism, and superstition, individuals must be educated and in a mature state of mind, which cannot be ignored given the need for additional rules and regulations.

While everyone should exercise their rights, this should not conflict with how others exercise theirs. To combat the negative effects of superstition and superstitious beliefs, India requires additional regulation. However, given the necessity for further laws and regulations, it is impossible to overlook the need for education and a mature mental state so that people can distinguish between criminal activity, humanism, and superstition. 

Barbarity cannot be committed in the name of religion. Authorities and the judicial system cannot ignore atrocities like urning people to cure diseases, paying babas to perform exorcisms, raping, and killing women during witch hunts, and other atrocities like these. The state cannot overlook the dire need for education so that people can distinguish between superstition, criminal activity, and humanism, and to reduce abominable crimes being committed under the name of “superstition.”

References: –

Ahsan, Sofi. “Explained: Kerala Human Sacrifice: Which States Have Laws against Superstitions & Black Magic?” Live Law, Live Law, 12 Oct. 2022, https://www.livelaw.in/know-the-law/superstition-states-kerala-murders-pending-bill-human-sacrifice-211490

Banerjee, Shoronya. “The Rising Need for Anti-Superstitious Laws in India.” IPleaders, 4 Nov. 2020, https://blog.ipleaders.in/rising-need-anti-superstitious-laws-india/

Bhargava, Kirti. “Explained: Where Does India Stand on Anti-Superstition and Black Magic Legislations?”Https://Www.outlookindia.com/, 13 Oct. 2022,https://www.outlookindia.com/national/explained-where-does-india-stand-on-anti-superstition-and-black-magic-legislations–news-229607

Kalaskar, Kishan Dutt. “How Is Black Magic Governed in India.” Legal Service India – Law, Lawyers and Legal Resources, 24 Oct. 2022, https://www.legalserviceindia.com/legal/article-8939-how-is-black-magic-governed-in-india.html

Pandey, Kundan. “Whole of India Needs Anti-Superstition Law.” Down To Earth, 22 Aug. 2013, https://www.downtoearth.org.in/news/whole-of-india-needs-antisuperstition-law–41977.

Sabith, Muhammed. “Kerala ‘Human Sacrifice’ Case Revives Calls for Effective Law, Promoting Critical Thinking.” The Wire, 13 Oct. 2022,https://thewire.in/rights/kerala-human-sacrifice-case-law-critical-thinking

By Shubham Sharma student of Chanakya National Law University

Introduction

In what is hailed as a landmark ruling, the Supreme Court of India in Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd has recently held that pre-institution mediation as provided under Section 12A of the Commercial Courts Act, 2015 is mandatory in nature and ruled that parties would now have to mandatorily undergo mediation before they can approach the court unless there is a need for urgent interim relief. The court, by adopting a mediation-friendly approach, has finally settled the debate over whether pre-institution mediation for commercial disputes as given in Section 12A of the Act is a mere procedural provision or is mandatory in nature. This ruling is a game changer as it would help expedite the delivery of justice in commercial disputes and decongest already overburdened courts, which was the primary objective behind the introduction of this Act.

Litigation creates a schism between the parties. A legal dispute is almost never a win-win situation. Contrastingly, mediation diffuses tension and creates an environment where parties can come to an amicable agreement while also saving money by avoiding the expense of a protracted legal dispute. This makes mediation a preferred choice for dispute resolution in the corporate world, given the country’s massive backlog of cases and India’s efforts to improve its position in the World Bank’s “Ease of Doing Business” index.

THE NEED FOR THE LAW

The Commercial CourtsAct, 2015 was introduced by the Government of India to encourage investment and economic activity in the country with the twin objectives of achieving the goals laid out in the “Make in India” program and to boost its rank in the “Ease of Doing Business” index. The government wanted to make commercial litigation less cumbersome for parties as it would improve the perception of India among investors as an investment destination. With the said objectives, the act was amended in 2018, which introduced Section 12A, making mediation mandatory in all commercial cases except those in which urgent interim relief was solicited. Furthermore, the specified value of a commercial dispute was reduced from one crore to three lakhs. However, confusion arose as to the nature and interpretation of this section, with some High Court ruling it a directory provision.

DISCORDANT JUDICIAL TREND AMONG HIGH COURTS

For instance, in Ganga Taro Vazirani v. Deepak RahejaGanga Taro Vazirani v. Deepak Raheja , a Single Judge bench of the Bombay High Court held interpreted Section 12A as a compulsory procedural provision. The court, further held that even in cases where urgent relief is desired, the procedure under Section 12A cannot be foregone. However, in an appeal before the Division Bench of the same court, the court proclaimed that Section 12A of the Act is not mandatory in nature.

Similarly, in Dhanbad Fuels Ltd. v. Union of India and Others,Dhanbad Fuels Ltd. v. Union of India and Others , a Single Judge bench of the Calcutta High Court was of the view that since mediation in India is at a nascent stage and there is a lack of awareness of the same, giving a mandatory effect to Section 12A would be dreadful as it would deny the party the right to participate in the traditional justice system, and thus went on to hold the said provision to be directory in nature.

Another learned Single judge bench of the Calcutta High Court, in Dredging and Desiltation Company Pvt. Ltd. v. Mackintosh Burn and Northern Consortium and Others Dredging and Desiltation Company Pvt. Ltd. v. Mackintosh Burn and Northern Consortium and Others , construed the bar under Section 12A as absolute in nature. Similarly, a Division Bench of the High Court of Madhya Pradesh, in Curewin Pharmaceuticals Pvt. Ltd. v. Curewin Hylico Pharma Pvt. Ltd [AIR 2021 MP 154], held that it would be mandatory for all parties to exhaust the recourse of pre-litigation mediation before approaching the court until and unless, there is a need for urgent interim relief in the matter.

Lastly, in Awasthi Motors v. Managing Director M/s. Energy, Electrical Vehicles, and Anrthe Allahabad High Court, after referring to the Statement of Objects and Reasons of the Act and the intent of the legislature, declared the said provision to be mandatory.

In the present case, however, the Trial Courtrejected Patil Automation’s petition that the suit be dismissed as the suit was instituted without obeying the requirement under Section 12A of the Act. The court was of the view that it was not the legislature’s intent to give a mandatory effect to the said provision, and going otherwise would result in a perversion of justice. In an appeal before the Punjab & Haryana High Court upheld the decision of the Trial Court on similar reasoning.

ANALYSIS BY THE SUPREME COURT: A MEDIATION FRIENDLY APPROACH

The two seminal questions that thus arose for consideration before the Apex Court were “whether the provision of statutory pre-litigation mediation as contemplated under Section 12A of the Commercial Courts Act, 2015 is mandatory” and “whether the courts can suo moto reject a complaint under Order VII Rule 11 CPC.”

Although a literal and strict interpretation of the word ‘shall’ was sufficient in itself to establish the mandatory nature of the provision, the court decided to delve into the design, scope, and objective of the Act to reinforce its opinion on the usage of the term, which it has held to be necessary in a number of cases. The court after going through the “Statement of Objects and Reasons” of the amending Act of 2018, held that it was beyond doubt that it was the legislature’s intent to treat mediation as a mandatory procedure in commercial matters until and unless the parties make out a case for urgent relief. The court also drew reference from Sharif-ud-Din v. Abdul Gani Lone [(1980) 1 SCC 403] to emphasise that giving a liberal interpretation to the said provision would be against the intent of the legislature and would defeat the very objective of the Act . The court rightly observed that the ultimate aim of this Act was to extinguish commercial disputes with the highest level of expedition and to decongest the trial courts, which bear the brunt of the explosion of cases. The court further opined that a mediation friendly atmosphere and quick resolution of commercial disputes are necessary to make India an attractive destination for investors and improve its position in the “Ease of Doing Business” index. The court rightfully observed that the pace at which commercial cases are disposed of in a country faced with the problem of docket explosion can be viewed as a decisive element of the ease of doing business. The court also noted that the Legislature was careful to exclude the mediation period from the computation of the limitation period while lowering the minimum value of a commercial dispute to INR 3 lakhs. With all these considerations, the court declared the provision to be mandatory in all commercial suits that do not demand urgent interim relief.

In its order, the court also addressed the contention that giving mandatory effect to the provision would take away the parties’ fundamental right to file a civil suit. The apex court clarified that the jurisdiction of a civil court can be ousted if it is barred by operation of law. The court pointed out that under Order VII Rule 11(d) the CPC, a plaint can be rejected if the suit is barred by law which implies that there exists no absolute right to file a civil suit. According to the court, mediation does not violate a person’s fundamental right to access justice just because it is different from the conventional path of seeking justice through a judge in court established by law. The court stressed on mediation for resolving disputes as it offers parties more autonomy to resolve their conflict, which results in a win-win situation for both parties as they are saved from the troubling delays, complex procedures and unbearably high costs of formal courtrooms. The court also noted that the nominal one-time fee payable to the mediator and the recognition of the ‘settlement’ reached by the parties under the Act as equivalent to an “award” under Section 30(4) of the Arbitration Act makes mediation an attractive solution to work out commercial disputes.

Thus, it is clear that mediation comes out as the only logical and imperative choice in an age where the court is faced with a docket explosion of cases and suffers from a skewed judge-population ratio.

CHALLENGES AHEAD AND POTENTIAL CONCERN

It is clear that Section 12A deals with two distinct categories of commercial suits. The first are suits in which parties do not want urgent relief, and the second are suits in which parties want urgent relief. The position with regard to the former is finally settled by this ruling, and parties now need to exhaust pre-litigation mediation before instituting a commercial suit. However, with regards to the latter category, the law remains silent as to what shall constitute “urgent” interim relief for the purpose of bypassing the said provision. The court in its order didn’t define or delineate such cases or instances where parties can forego this mandatory provision. This would lead to exploitation of the law as the parties would indiscriminately file their suit seeking “urgent” interim relief to avoid pre-litigation mediation. This would defeat the very purpose and objective of the law. Thus, until further clarification is made, the courts should remain vigilant and acutely scrutinise the authenticity of each case where “urgent” interim relief is sought. A penalty should be imposed on litigating parties who attempt to circumvent the said provision for malicious purposes. Confusion also reigns over the ramifications of a complaint being rejected for failing to comply with Section 12A.The availability of quality mediators and improvements in existing infrastructure are other areas that need to be worked on by the government to make mediation time efficient.

With the introduction of the Draft Mediation Bill, 2021which mandates compulsory pre-litigation mediation before the institution of any formal adjudicatory proceedings before any court or tribunal, it is clear that India is heading towards a pro-mediation regime. The present judgement is one of a series that upholds this spirit. This judgment, if enforced strictly, will greatly de-clog the courts from the heavy burden of commercial cases and foster a regime where litigants will be able to resolve their disputes in a time-efficient and amicable manner at minimal cost. The future is mediation!

By Aayush Shrivastava student of Dharmashastra National Law University, Jabalpur

Democracy and Kleptocracy and their union are as easy as it sounds and is the last thing one would want, as this union contradicts the very ethos of a democracy, and rule of law, the free and the fair.

Chapter 1: Introduction - What is Kleptocracy?

Kleptocracy is the intention of looting a public of its rightful funds and money and filling it in one’s own pockets. It is a type of rule in which the higher officials having the power to abuse their status and position, engages in corruption for gaining personal wealth. Its derivation from Greek words “Klepto” meaning Stealing and “Cracy” meaning To Rule implies that, it is a Rule by Thieves, and we are starting our discussion with this basic fact and the above question.

Over the years, Kleptocracy has been a favourable path for many politicians or oligarchs, which may sometimes combine to become Poligarchs, as they embezzle the hard-earned wealth of the taxpayers to satiate their own needs and desires. Often it has been said that democracy is heading towards a wide cliff, the space between the two points being a hopeless jump to destruction of Democracy that is Kleptocracy, and that the only way to land on the other side safely or with minimum injuries is to have a strong run and the strength to jump, with a little help in the form of booster, that is to control this incursion of Kleptocracy. This is the present condition of the relationship between democracy and kleptocracy, which is basically a dandling state of affairs.Over the years, Kleptocracy has been a favourable path for many politicians or oligarchs, which may sometimes combine to become Poligarchs, as they embezzle the hard-earned wealth of the taxpayers to satiate their own needs and desires. Often it has been said that democracy is heading towards a wide cliff, the space between the two points being a hopeless jump to destruction of Democracy that is Kleptocracy, and that the only way to land on the other side safely or with minimum injuries is to have a strong run and the strength to jump, with a little help in the form of booster, that is to control this incursion of Kleptocracy. This is the present condition of the relationship between democracy and kleptocracy, which is basically a dandling state of affairs.

Chapter 2:The Dandling State of Affairs – How a Democracy gets transformed into a Kleptocracy and whether a Non-Democracy or a Partial Democracy becomes a Kleptocracy?

The force behind Kleptocracy is clearly the self-enrichment of the individual but also the need to remain in power, and when one remains in power, they can also remain wealthy, in the end accomplishing the goal. The situation becomes more complicated and uglier when the ruling power (or party or government) is thrown away and the opposition takes over the wealth, continuing the cycle and not breaking it. So, to prevent that from happening and to keep everyone happy and to rule over a well maintained kleptocracy, the thief-in-chief as the American academic Andrew Wedeman puts it, controls all the enterprises and natural resources, and divide the riches and the stealing among the friends, family, and follies as well as frenemies, thus maintaining everyone.

The situation is also dire because of the illegal illicit legalisation of the funds, done by the government officials and evading the court proceedings by getting the ruling of being legitimate businesses and salaries, making the proving of these as stolen a far cry. But there is a positive point regarding this and that is the fact that the transactions that have been done, the receipts, the information that has been recorded, in some way or the other can be traced back to the source, which makes it clear for the respective authorities to investigate whether the funds that appear to be legal are really legal and in how much capacity.

Charities, a thing of care and graciousness, has been delegated as a storehouse of kleptocrats. In the backstage of the main show of donation, the preparations of another show, that is, the Emergency Collection is being done. Sometimes, this backfires as the money that has been embezzled comes with its metadata, that gives the authorities the Apple of Eden. There is also the big network of philanthropists, out of which anyone may become a whistle-blower anytime, if they feel the need for it and as deducted, the backstage show is used when anything goes haywire. So, it might be said that at one hand the legit work of righteousness is going well and without any hindrance, with the underhand of the kleptocrats supporting them and themselves.

The money is embezzled in a variety of ways, from offshore bank accounts to investment in real estates, from funding political campaigns to donating in charities, from business establishments to establishments of so-called public welfare infrastructures. Hoarding of the wealth by the ruling power and not letting it get accessed by any opposition, political or economic, is where the behaviour of unfair competition and dominance takes over, resulting in the loss of public and gain of rich. This capital or wealth can also be used to oust the regimes, rules, or governments, indirectly affecting the fundamental rights of the citizens. This indirectness or in directness affects the Democracy because it does not mandate with ‘for the people, by the people, of the people.’

Kleptocracy not only exists in democracies but also in non-democracies. Authoritarian rule, Dictatorships, Monarchy, Parliamentary Monarchy, all of them have some or the other relation with Kleptocracy and it does not prove that they are stable with Kleptocracy. Often, and as the history and world has witnessed, violent outbreaks and protests breaks out over the kleptocratic behaviour of the head of the state or the government. General public fighting for their rightful funds, for the country, for the development that was stolen from them, irrespective of their Democratic or Non-Democratic status is seen and has a major impact in the form of support from all over the world. But these uprisings against the corrupt government and officials are controlled, by providing just enough “care” to quash them and in turn securing their position and interest. The communist regimes have their fair share of wealth collected from various sources, through various ways, which does not involve any democratic or non-democratic body, as their economic model is different, and not amassing the wealth as the private players do. Communist regimes earn their money mainly from smuggling or by becoming the topmost in the manufacturing area and per se their wealth is not based on the state assets, that is, the public funds, collected mainly through taxes.

Family problems and their conflict of interests, which is prevalent in Monarchies, and in the refusal of the sharing of the spoils among themselves, leads to massive battles for the same, both indoor and outdoor. This not only happens in a non-democratic model but also in a democratic model as well. Family feuds and the headlines they make, is the way the common people, or even the other officials get to know about the activities that have been undertaken in the name of law and legalisation. These people, use the law for their advantage, breaking and disrespecting it, to get their things done, to safeguard that wealth and then take the way of the very same law in a foreign territory to safeguard them there, being all righteous. The irony of it all.

Democracies and its institutions are destroyed through these methods and ways, as they are basically sacrificing their reputation in maintaining a reputation, more precisely a global reputation, which shows these people as law abiding citizens, working in a lawful way and for the benefit of the global good. They also secure multiple citizenships in case of any immediate withdrawal from their home or target country, to escape the legal actions, and the reputation they make in these countries sometimes help in ways unexpected even by them, even if they are a culprit in another or their home country. They also buy and make disappear evidence incriminating them, to prove their innocence, emerging as a person, not doing any criminal or wrong act, but being the victim of that said act.

It can be said that these dandling state of affairs poses a serious question, regarding the responsibility, the transparency, the accountability, as to, what is going to happen in a situation when a country and its citizens will suffer at the hands of such people, when there might become an unimaginable gap in the development, when their rights are violated, which might gradually or eventually lead to an economic crisis? The answers to this question seem to be a negative one, but a blessing in disguise, as it will help in the identification of the areas that have been left out of the purview and will compel them to rectify the same.

But can we say that after discussing, after reading the above points, is Democracy a deemed Kleptocratic Democracy or Democracy aiding Kleptocracy?

Chapter 3:A Deemed Kleptocratic Democracy or Democracy aiding Kleptocracy?

The times are changing, and the respective scenarios of our political worlds are also constantly changing. Changes in society were needed and are evident and with them, in some way or the other, comes the changes in the political behaviour. Democracies are under a threat of kleptocracy, with some individuals, or a small group in a country getting rich day by day, whereas the middle class and the poor are getting nothing as such in return. On the contrary it is the non-rich classes which are at the gunpoint, every time any crises, whether economic or political, occurs.

Oligarchs and Politicians and the ones who are both, Poligarchs, are favouring themselves from the economic and social condition of a country. The policies that are developed by the government enable these ministers, their associates, and high-profile people, in easy siphoning of the money, without any hindrance, in the shadows and because of having the hand of government holding its umbrella, covering them from the hail of legal actions they are safe from the consequences of such illegal actions. There is not just this but also the factor that these expansionist policies, and the people it benefits, the people who are becoming rich, are sometimes, or maybe often taking the advantage of the religious factors. It is quite evident that, the current government’s motivation and inclination is towards a particular religion, and its focus on another religion, and the politics of bad faith and hate and division is helping in diverting the attention from the activities of the rich, involved in various transactions and monetary situations. Whether these are legal or not and are being scrutinised or not does not happen as the agencies and the public is busy in a matter which is not of that significance.

These are the theoretical points which are visible and are not a secret and after reading the above, one would feel that the Democracy is acting like a benefactor for the Kleptocracy, maybe it is propagating it. That is a very subjective perspective and various points in support as well as non-support can be given whether that is true or not but here, we can discuss some ways which can mitigate this incursion of Kleptocracy and in which we can have hope.

Chapter 4:Kleptocracy can be Lessened

Preventive measures and not the remedial measures are the key to the controlling of the enrichment of the individuals. Strict measures and compliances of the rules—which is generally not done, as opposite to what is thought of—helps immensely in the searching and verifying the corrupt practices and penalising them under respective laws, along with fines should be undertaken. There also needs to be a strong leadership and involvement of civil society in the affairs. Journalistic activities need to be increased as they help uncover various covert operations and money siphoning happenings, happenings in and around the monarchies and families, their affairs and how they are disrupting the development and the journalists might need the protection and for that the non-governmental organisations will have to come forward for taking up the security initiative.

Taking the teachings from the countries where the corruption and kleptocracy is less, and adapting it accordingly can also be done, as it will not only lessen its impact and intensity and will help in controlling it overall, but it will also provide encouragement to become one of those nations. The policy options and tax optimisations that are done for the offshore companies and their accounts should be scrutinised by the authorities as they use this complex web of network of foreign accounts and false companies which are nothing more than a façade for these wealthy and rich people to hide their money, either in the form of legitimate investments or something else, legalising the illegal money. All this needs to be done when there is a surmountable amount involved. Compliances must be made strict and proper documentation should be there, verifying each transaction.

Worldwide visa denials are an option that can be done to prevent kleptocrats from escaping or leaving the respective country with all the wealth stored somewhere in foreign. And not only governmental agencies but non-governmental agencies can also be involved as they attack and root out the wealth of these individuals and increase the public trust in the good governance and the thrust for it, encouraging anticorruption agencies in their battles against Kleptocracy.

Chapter 5 - Battle Against Kleptocracy & Road Ahead

What we can understand is that even after all the hardships and failures, even after the road is not that clear, the path to a non-kleptocratic democracy is there, is visible, maybe not clearly but it is there. All it need is a guiding light and some clearance from the nature, pushing away that fog, lighting up the way. Hope is the way ahead, even in this soft dystopia looking world of ours, hope is the only thing, that not everyone is like that, that there are courageous people out there, willing to and are fighting these battles and that there are governments and politicians as well as these rich people who are risking their everything to fight for what is right. We started this discussion by asking a question, is democracy doomed for kleptocracy? We can say with a certain certainty that that democracy is not doomed for kleptocracy.

References

Mayne, Thomas (2022): https://www.chathamhouse.org/2022/07/what-kleptocracy-and-how-does-it-work(https://www.chathamhouse.org/2022/07/what-kleptocracy-and-how-does-it-work) Chatham House (4th July 2022)

Sherman, Jason “On Kleptocracy” (https://www.cam.ac.uk/kleptocracy)Cambridge Alumni Magazine (CAM), Issue 86

Cooley, Alexander; Heathershaw, John; Sharmna, J.C. (2018): “The Rise of Kleptocracy: Laundering Cash, Whitewashing Reputation” (https://www.journalofdemocracy.org/articles/the-rise-of-kleptocracy-laundering-cash-whitewashing-reputations/), Journal of Democracy, Vol 29, No 1, pp 39-53

By- Pritha Lahiri student of Institute of Law, Nirma University

Introduction

Mediation as a method of dispute resolution is gaining popularity in India. Facilitated negotiations with neutralizing communication skills and effective negotiating methods can improve the system’s ability to provide justice to society. The notion of pre – institution mediation is like a trump card in this regard. Pre-institution mediation under its ambit covers commercial, consumer, property, and domestic cases, among others.

Some aspects of mediation can be found under Section 89 Code of Civil Procedure,1908 wherein the Court before framing the issues, suggests parties to resolve dispute by either Mediation, Arbitration, Conciliation or Lok Adalat before approaching the courts. It happens when the suit is filed in the Court. However, the Indian laws do not provide for compulsory

mediation in the pre-litigation stage. In the case of K. Srinivas Rao v. D A Deepathe Hon’ble Apex Court recognized the concept of pre-Institution Mediation for the first time.

Commercial disputes in India account for a significant portionof all disputes involving Indian parties and therefore the introduction of mandatory pre-institution mediation by way of Section 12A of the Commercial Courts, Commercial Division, and Commercial Appellate Division of High Courts (Amendment) Act of 2018, which requires the plaintiff to exhaust the remedy of mediation before filing a suit in acquittal, is a welcome step in the right direction. While this is acknowledged as a significant step, it has also triggered conflicting judicial interpretations leading to Supreme Court finally coming to a conclusion. In this article, the author discusses the possible implication of the same.

Section 12A of the Commercial Courts Act of 2015: A background

Section 12A of Commercial Courts Act (CC Act) did not find a place in the Act as enacted initially when passed by the Parliament in 2015. Section 12A of the Commercial Court Act was introduced by way of an amendmentto the Act in 2018

The section states that before a person initiates a suit that doesn’t pray for an urgent interim relief, the pre-institution mediation remedy must be used., and the authority established under the Legal Services Authorities Act of 1987 must perform such pre-institution mediation in consonance with the rules framed by the Central Government. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018provide three months to complete the processes pertaining to pre-institution mediation under Sections 12A and 21Aof the Actunder, With the parties’ approval, this time may be extended for another two months. Section 12A (4) states that in case a settlement is reached under this section, it must be reduced to writing, signed by both parties along with the mediator. Sub-section 5 states that in case a settlement is reached, it is given the status of an arbitral award made in accordance with Section 30(4)of the Arbitration and Conciliation Act of 1996.

Mandatory Versus Directory: Conflicting views

There has been considerable dilemma and debate on whether Section 12A of the CC Act of 2015, is mandatory in its application or not. Ergo, numerous interpretations have been made in Indian High Courts resulting in a great deal of confusion and an unresolved question.

Pro-Mandatory Approach-

In the case of Messrs. Awasthi Motors v. Managing Director, Energy Electricals Vehicle and Anr, the Hon'ble High Court of Allahabad, while discussing Section 12A in length, held that the wordings of the provision is quite straightforward and indicates the mandatory nature of the Mediation process to be undertaken by the parties. It uses certain restrictive words, like 'shall' along with 'not,' and by further adding 'unless' before the phrase 'plaintiff goes for the remedy of pre-institution mediation.'

Contrary Approach

As there are always two sides to every issue, this issue also has a couple of contrary judgments, making this issue an unsettled notion by interpreting Section 12A as a Directory Provision. In the case of Shahi Exports Pvt Ltd. v. Gold Star Line and Others, the Hon’ble Court of Madras, by way of harmonious interpretation, held that Section 12A is not mandatory but merely directory in its application.

Further, in M/s Dhanbad Fuels Ltd. v.M/s Dhanbad Fuels Ltd. v. UOI, holding Section 12A as Directory, the Hon’ble High Court of Calcutta decreed the suit despite non-compliance with Section 12A of the Act.

Finally, in M/s Patil Automation Pvt. Ltd. Office and others v. Rakheja Engineers Pvt. Ltd. and AnrM/s Patil Automation Pvt. Ltd. Office and others v. Rakheja Engineers Pvt. Ltd. and Anr, while rejecting Section 12A to be mandatory, Hon’ble High Court of Punjab and Haryana observed that the rules of procedure serve as the handmaids of justice, advancing purposes of justice. 

It is to be noted that the contrary interpretations put forth by various High Courts take a different view than the aforesaid, as far as their interpretation of the law is concerned. That being the case, there is considerable disagreement between jurists regarding the scope of Section 12A.

Supreme Court’s Stance

The Supreme Court has now put an end to this debate with its ruling in Patil AutomationThe Court emphasized on Mediation as a potent weapon for alternative dispute resolution and held that the goal and aim of the Parliament would be defeated if the Court refused to construe Section 12A in a manner that is mandatory. The possibility that the mediation would fail cannot be used as justification for making the provision optional. Furthermore, any lawsuit filed in violation of this requirement would have its plaint rejected in accordance with Rule 11 of Order 7 of the Civil Procedure Code, 1908.

The ruling of the Supreme Court has provided the crucial clarification that the parties must inevitably exhaust the pre-institution mediation obligation before bringing a suit under the CC Act. 

Implications

At the time of introducing the Bill, Minister of Law and Justice canvassed the importance of introducing mandatory mediation as provided in Section 12A. It was also stated that introducing such a mechanism is one of the most important commercial law initiatives. The importance placed on alternative dispute resolution platforms was stressed as a vital component. Requiring mandatory mediation before filing a commercial lawsuit is a welcome step in reducing the pending lawsuits in the country. Highlighting the positive effect of the Bill, it was also noted that access to pre-institution mediation could end half of the litigation. Careful scrutiny of these debates in the Parliamentis indicative of the fact that Section 12A was inserted with the intent of making it mandatory for the people to opt for pre-institution mediation and that it was enacted in the public interest in order to fasten the dispute resolution process in the Commercial Courts of the Country.

While it beyond doubt that mandating Section 12A will bear fruitful results, the provision however has certain loopholes. Section 12A requires parties to undertake mediation even if they haven’t had their case presented in court and are confident in the validity of their position. At this point, disagreements typically devolve into ego conflicts between the parties who lack trust in one another and are unable to accept a climbdown. Parties may lose sight of business concerns at this point, and they might not be in a position to consider possibilities for peacefully resolving disputes if they are not in the proper frame of mind.

According to Section 12A, the defendant may completely forego responding to the mediation request whereas the party filing the lawsuit is required to participate by approaching the authority. As a result, it is just a unilateral requirement that the parties see as a hurdle to pass in order to file the lawsuit, thereby completely undermining the essence of the provision.

Conclusion

Summing up, pre- institution mediation holds huge potential for a country like India, where pendency of cases is one of the primary issues engulfing the judiciary. It is, in essence, a paradigm shifts in how we resolve disputes. However, before mandating such provision, it is crucial to examine and analyse the stage at which parties are directed to compulsorily mediate. Doing so will ensure effective application of the mediation process and give true meaning to the legislature’s intention.

By- Deepesh Tapariya and Tarang Arora students of Maharashtra National Law University, Nagpur

ABSTRACT

Any delay in the judicial system leads to a denial of justice. As a result of all of this, ADR enters the scene, with ADR being a less complicated and less expensive process. The authors sought to cover every aspect of ADR, including the many types of it. Furthermore, the authors have investigated every facet of it, from its beginnings to the most current improvements. As the expression goes, everything has advantages and disadvantages. The writers have analysed the advantages and disadvantages to present the readers with a full picture and conclude with a germane conclusion.

Introduction:

When someone’s legal rights are violated, what do individuals often do? properly launch a civil or criminal lawsuit, but one should never forget the implications associated with the same and to disregard these difficulties ADR (alternative dispute resolution) is offered as a solution. But what exactly does it entail? So, the process by which disputes between the parties are settled amicably, with little litigation, and without the involvement of a judicial institution is known as alternative dispute resolution (ADR), and it has been truly said that “Parties can consider option of Alternate dispute resolution at any point during litigation, including the starting point.” Also, I’ve heard and personally experienced that there isn’t a lot of knowledge about alternative conflict resolution, and if we directly recommend it to individuals, their first question is always, “What do you mean by alternate dispute resolution?” But This situation won’t last long, though because ADR is a very dynamic and quickly expanding concept, not only do we as lawyers support it, but the judiciary does as well. The best example of this is the mediation centre located on the court campus and Lok Adalats being held too frequently. In addition, ADR has many benefits, including maintaining confidentiality, being more economically viable, quick, and many others and not only that, but it also aids in the constitution’s achievement of article 39A, which calls for equal justice and free legal aid. Furthermore, in this piece the authors will be discussing types of ADR which will consist of different components of ADR second of all it will consist ADR relation with Indian context and finally contemporary development or scenario related with ADR.

ADR types and what they mean?

The models for resolving conflicts vary, much as the variety of disagreement causes. A broad range of techniques are included in alternative dispute resolution, all of which aim to resolve conflicts quickly and affordably. I understood that “the essential role of a lawyer was to bring parties together,” as mentioned by “Mahatma Gandhi.” So, it goes without saying that the role of attorneys in promoting non-adversarial conflict resolution processes is crucial. In terms of ADR techniques, arbitration, conciliation, mediation, and negotiation come in most-common. Lok Adalat, an alternative dispute resolution (ADR) process that incorporates negotiation, conciliation, and mediation, is another type of ADR mechanism that exists in India. Now the researchers explained what all are they-

1. Arbitration – Without resorting to litigation, disagreeing parties can resolve their differences amicably and equitably through arbitration by working with a person, group of individuals, or institutional body. It is possible to make ad hoc, contractual, institutional, or statutory arrangements. A neutral third party that has been chosen by the parties will arbitrate any disputes between the parties. Currently, arbitration is the only method of resolving disputes that is both enforceable and legally binding.

2. Conciliation – A neutral third-party aids disputing parties in reaching a settlement through the private, informal process of conciliation. It is a procedure wherein the parties, working with the impartial conciliator’s aid, systematically isolate the issues at stake in the conflict, formulate possibilities, weigh alternatives, and come to an agreement.

3. Mediation – With the assistance of a mediator, problems between the parties are settled amicably. The mediator’s job is to bring the parties together so that their problems may be settled amicably. In order to get to a resolution that is agreeable to all sides, a mediator would persuade them to scale back their expectations. Instead of a neutral third person deciding the fate of the parties to the dispute, mediation places focus on the parties’ own obligations to make decisions that influence their lives.

4. Negotiation – Mediation and negotiation are quite similar. However, it is most frequently used to allude to a technique in which the disputing parties would resolve their differences amicably. The negotiating process gives the parties the chance to discuss their views, pinpoint their vexing points of contention, come up with a compromise, and obtain promises from one another that they will eventually come to an agreement. [i]

5. Lok Adalat – India invented the innovative method known as Lok Adalat. It refers to the people’s court. It serves as a venue where the parties voluntarily attempt to resolve their differences via conciliation and persuasion. It includes the methods of negotiation, mediation, and conciliation for resolving conflicts between the parties. The Code of Civil Procedure grants Lok Adalat the same authority as a civil court. [ii]

Positives and negative perspectives of ADR

1.The chances of healing the relationship are boosted when both sides can voice their complaints on the same page.

2. The foundation of ADR is laid down in Articles 14 and 21, which ensure that everyone has the equal legal rights and the right to life and liberty.

3.ADR attempts to settle conflicts amicably and preserve the community it serves, motivated by a commitment to respect the preamble’s objectives of social, economic, and political justice.

4. Two additional objectives of alternative conflict resolution are equal justice and the right to free legal counsel granted by Article 39-A, Directive Principle of State Policy (DPSP).

Now moving on the negatives so they are as follows:

1.Since ADR is a voluntary agreement between parties, parties cannot be forced to consent to arbitration, conciliation, mediation, or reconciliation.

2.ADR is frequently inappropriate, such as when a client needs an injunction, there isn’t a dispute to be settled, and the client needs a ruling on a legal issue.

3.The technique does not always provide a favourable conclusion, thus there is no guarantee of success. This suggests that even after spending time and money trying to resolve the dispute outside of court, the parties could still need to proceed with litigation and a jury trial.

Indian framework for ADR

In recent years, the cases filed in Indian courts has dramatically increased, causing pendency and delays and emphasising the necessity for alternative conflict resolution procedures. The then-Indian prime minister and chief justice have acknowledged this problem a long time and they called a conference in New Delhi on December 4, 1993, in response to these worries, when the Chief Ministers and Chief Justices of the States approved a Resolution. [iii]The “Arbitration and Conciliation Act, 1996” was subsequently passed consequently. This Act formally approves conciliation as a means for settling disputes.[iv]ADR is not a new procedure and has been discussed even before the 1990s, if we look at some of the earlier histories of its many varieties, for example this is the history of Arbitration; The Geneva Convention was ratified in 1923 at a meeting of the League of Nations. There were arbitration provisions in the Geneva Convention as well.[v]The Civil Procedure Code’s first specifically devoted arbitration provision, Section 89,

which called for arbitration, was abolished by the Arbitration Act of 1940’s Section 49 and Schedule III. India was listed as a signatory state to the Protocol on arbitration created by the League of Nations in the Preamble to the Arbitration (Protocol and Convention) Act of 1937, which was approved by the British before the Arbitration Act of 1940. Some notable Indian legislation and codes have also recognised the necessity for ADR. This opportunity is made possible by “Section 89 of the Civil Procedure Code of 1908,” which enables the court to specify the terms of a potential settlement and refer it to Lok Adalat, Arbitration, Conciliation, or Mediation if it seems that there are components of resolution outside the court. The legality of Section 89 was contested in “Salem Advocate Bar Assn.(I) v. Union of India” The Court maintained Section 89’s legality[vi][vi]. A committee was established by the court to investigate how complex the workings were, and Justice M. Jagannadha Rao (Retired) served as its chairman.[vii]The Legal Services Authority Act of 1987 and the “Arbitration and Conciliation Act of 1996” are the statutes that govern alternative dispute resolution. The Government of India has developed several additional initiatives in this area, which are discussed in the next section, after these acts did not meet with significant success.

CURRENT DEVLOPMENT:

ADR, as a very dynamic and developing concept, will undoubtedly see a lot of new advancements and upgrades, and this piece will discuss the same beginning with the era of the Corona virus, when everything went online, including court and commercial business, and the reason for the same was lockdowns or shutdowns, which resulted in a lot of contractual obligations remaining unfulfilled, and this is where ADR came in as a solution because it gave birth to virtual ADR. wherein it enables both parties to hear and see one other via video conferencing. In addition, by engaging with each side online separately and adopting a basic approach, the mediator can quickly reach a mutually accepted conclusion in a mediation matter. Now, Moving on with the 2021 amendment to the Arbitration and Conciliation Act of 1996. It has undergone three revisions in the previous six years, showing the legislative aim to change the 1996 Act and make India more amenable to arbitration. On the same page, the Rajya Sabha introduced the Mediation Bill 2021, and a study of the Bill has been assigned to the Parliamentary Standing Committee. Furthermore, the committee’s report was given to the Rajya Sabha on July 13, 2022[viii][viii]. Aiming to institutionalise mediation and establish the Mediation Council of India, not only the parliament and the Supreme Court support ADR, but also NITI Aayog, as evidenced by an official paper “Designing the Future of Dispute Settlement: The ODR Policy Plan for India,” which seeks to promote the prevention, management, and resolution of online disputes. Implementing the report’s suggestions might help India become a global leader in leveraging technology and creativity to provide effective access to justice for all people through Online Dispute Resolution (ODR). Furthermore, a new success has occurred in the Bar Council of India, as reported by Pradeep Rai, in which the entire strength of mediators in the Supreme Court has achieved a total of 250 [ix],with many more to follow since ADR is a blessing for all problems that arise.

CONCLUSION:

In terms of ways to settle disputes, human civilization has made significant progress. The goal of finding a quick and economical solution to the problems has been a major driving force behind the creation of ADR methods. The development of ADR mechanisms has created a complex situation, and both the legislative branch and the judicial branch have struggled to streamline all the ADR processes and the regulations that govern them. Beginning with the adoption of arbitration statutes, which significantly changed over time, ADR procedures have a long history. The Indian Parliament was wise enough to include these new conflict settlement techniques when additional ADR mechanisms eventually knocked on its door. With the help of laws like the “Commercial Courts Act of 2015” and the “Micro, Small and Medium Enterprises Development Act of 2006”,the government also made sure that these techniques are applied specifically in certain industries. The Justice (Retd.) M. Jagannadha Rao Committee Report suggestions were used to remedy the issue of Section 89 modifications that had caused some dissatisfaction within the legal community.[x]The current Indian government is making additional advancements in the development of ADR procedures to establish India as a top destination for forms of dispute resolution on a worldwide scale and it will be a great success for sure.

References-

[i]https://www.pon.harvard.edu/daily/mediation/types-mediation-choose-type-best-suited-conflict/

[ii]https://www.legalserviceindia.com/legal/article-1678-alternative-dispute-resolution-adr-.html

[iii]https://primelegal.in/2022/10/23/alternative-dispute-resolution-mechanism-in-india/

[iv]https://www.india.gov.in/topics/law-justice/alternative-dispute-redressal-adr

[v]https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf

[vi]http://www.scconline.com/DocumentLink/3Ox0YHre

[vii]http://www.scconline.com/DocumentLink/3GWHUTmc

[viii]Explained | The Mediation Bill, 2021 – The Hindu

[ix]Pradeep Rai (@pradeepraiindia) / Twitter

[x]https://www.scconline.com/blog/post/2021/02/07/evolution-of-adr-mechanisms-in-india/

By- Srinanda Chatterjee student of Institute of Law, Nirma University -

The Supreme Court in its recent judgement of State of Jharkhand v. Shailendra Kumar Rai,2022 LiveLaw (SC) 890, reiterated its ban on “two-finger test”. The bench of Justices DY Chandrachud and Hima Kohli rightly pointed out that such a test was forcing the victim to relive the trauma and was downright “unscientific, patriarchal, regressive and invasive”. This isn’t the first judgement to be passed in this matter, there have been a plethora of opinions which have been in wide circulation. 

So, what is the “two-finger test” so widely in debate?

When an FIR is lodged, the law provides for medical examination of the rape victim as provided in 164(A) of CrPC which says that “woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert  within twenty-four hours from the time of receiving the information relating to the commission of such offence.”

A doctor will enter two fingers inside the victim’s vagina to determine whether the hymen is still intact as part of the two-finger test, one of the methods used to ostensibly verify the truthfulness of rape reports. It looks at the woman’s laxity of the vaginal muscles to see if she has engaged in or been exposed to sexual activity – “a proof of virginity.”

Ironically Modern India has had the most conservative views on virginity. Going back in the historical timeline sex or even pre-marital sex wasn’t completely looked down upon in the Vedic Age. Vedic Literature has respected the status and choices of women. In fact, The Mahabharata, an Indian mythological text talks about premarital sex in a very liberal manner.

“Satyavati had premarital sex with Rishi Parashar and gave birth to Ved Vyas who wrote Mahabharat. So Satyavati was not virgin while marrying King Shantanu.”

With the onset of colonisation, severe conservatism around sex and virginity rose to prominence. This exact culture—where aristocratic European women were supposed to remain virgins until they married—seeped into India and strengthened the pre-existing gender restrictions that had oppressed women since the dawn of time. Women’s physical integrity was always strongly objectified and subjected to society norms. Manusmriti one of the oldest legal texts in Indian history has objectified women as“objects of sexual desire”

The “two-finger test” is based on this very outdated belief that the blame of the rape is to be shifted on the victims and not the perpetrator. A sexually active women are supposedly women of “loose morals” and cannot be deemed to be victims of sexual assault.

“Two-finger test” in its deep-rooted patriarchy is not only regressive but also medically uncalled for.In 2018, the United Nation Human Rights Commission Women and World Health Organization had called for a ban on two-finger test in order to eliminate violence against women. They declared it a “medically unnecessary, often times painful, humiliating and traumatic practice that must end.”  The hymen doesn’t necessarily break during sexual intercourse but can also break during performing a range of activities- using a tampon, gymnastics, cycling, swimming, etc. Several medical journals have written on how the two-finger test is an inconclusive way of ascertaining the “virginity” of women. Therefore, to associate the breakage of hymen with sexual intercourse completely is a preposterous assumption.

One of the key arguments which DY Chandrachud had recently stated was:  “The probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active.,”

In State of Punjab v. Gurmeet Singh, 1996 AIR 1393, the Supreme Court had stated that “Uncharitably and unjustifiably characterizing the plaintiff as a girl of loose morals is the erroneous inference drawn by the court baseless of any evidence which has shocked our judicial conscience.” And had made it clear erroneous views on “character” of the girl has no place in the court of law.

Another importance argument stated by the bench was how the “two-finger test” was an impediment to the privacy of women. In major cases the consent of the victim isn’t taken and it often causes pain, discomfort and the trauma to resurface. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and cannot be taken away through unjust methods. A women’s right to her bodily integrity is one of the chief pillars right to privacy aims to protect. The social construct of gender has blatantly violated the privacy of women- especially their choice and consent. Previously judgements by courts has heavily emphasized on the importance of privacy, integrity and dignity of the rape survivors.

In Lillu @ Rajesh v. State of Haryana(2013) 14 SCC 643, the Supreme Court while banning two-finger test had held that “undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

In State of Gujarat v. Rameshchandra Ramabhai  [2020 SCC OnLine Guj 114], the High court had held that “two-finger test is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial Court comes across any such medical certificate, wherein, there is a reference of such a test, then it should take cognizance of the same and do the needful in the matter”

These two judgements by Supreme Court establish that there is something fundamentally wrong and degrading about two-finger test. Two-finger test almost dates back to more than a decade of privacy and integrity of rape victims being violated.

The “two-finger test” tends to establish virginity of women as a rigid social construct which blurs the lines between law and morality. The Hindu morality has considered virginity as a social norm and has imposed it on women from centuries. Sita who had to give agnipariksha to prove her chastity to her husband is one of the various examples as to how the society has domineered women for centuries. Though morality influences law majorly but sometimes morality might stem from prejudices, pre-conceived notions and discrimination. It is here that it becomes important to demarcate the boundaries between law and morality. When we look into the history of women rights, we observe that a certain sense of ethical morality had always set rigid standards of female conduct. Even during rise of liberalism, social revolution and that of radical feminism, the orthodox sense of moral and ethical conduct couldn’t be completely eradicated.

The traditional mindset of the Indian masses which has stigmatized sexually active women has been one of the major impediments to development of advanced techniques. Gender roles are so prejudiced and confined subconsciously or consciously women have succumbed to the society. People still look down on women based on their sexual histories and often shift the blame on them when a crime happens. Patriarchy disguised in the veil of “victim-blaming” shows how the society has been in constant denial of the men being perpetrators of sexual violence. The woman who has borne the pain of a sexual assault is ironically forced to undergo the same discomfort and humiliation through two-finger test.

It is a shame that even today when you talk to the common masses about rape or sexual assault , among a sea of questions the major ones which will pop up in their head is “what clothes was she wearing”, “why was she out this late”, “she’s sexually active, she must have lured him.” “why was she traveling alone”. It is evident that women have been subjected to years of objectification and shaming. Banning the two-finger test is merely the tip of the iceberg but nonetheless a commendable step.  Even though similar judgements have been passed in the past, one major roadblock to its adherence has been lack of awareness and education. It’s a shame how women have been so chained to the societal norms that most of the times they don’t even realize that their rights are being violated. Just imposing a ban isn’t enough, it is important to bring changes on the grassroot level- educate the masses, let the women be aware of their rights and to ensure that these rights are enforceable and safeguarded.

Gender sensitization is essential to ensure that oppression and inequality is minimized in the justice process and both the sexes are put on an equal pedestal. The ratio of male medical professionals to female medical professionals is highly disproportionate and this gender prejudice cannot be overlooked. The medical professionals should realize that justice and proper treatment should be the main goal and not hell bent will to prove the dubiousness of the rape claim and scrutinize the character of the rape victims. Instead of continuing with patriarchal practices that degrade women, authorities should ensure that medical professionals treat sexual assault survivors with dignity, respect their privacy to provide a safe haven of trust for treatment and examination. Mental health and therapeutic services ought to be provided to the rape victims to mitigate their trauma, instead of aggravating it.

References-

1.Aphale, Rakshika. “Sex and Sexuality According to the Vedas in Hinduism.” Amrutam, Amrutam, 26 Sept. 2022, https://amrutam.co.in/blogs/amrutam-mythology-indian-culture/sex-and-sexuality-according-to-the-vedas-in-hinduism#:~:text=Sex%20and%20its%20Role%20in%20the%20Vedic%20society&text=Sex%20outside%20marriage%20was%20and,the%20Vedas%20advised%20against%20sex

2.“India’s Top Court Bans Degrading ‘Two-Finger’ Rape Test.” Human Rights Watch, 1 Nov. 2022, https://www.hrw.org/news/2022/11/01/indias-top-court-bans-degrading-two-finger-rape-test.

3.Kuhlmann, Mpho. “Virginity as a Social Construct: A Shame for Men, a Pride for Women.” Sunday Standard, 20 Mar. 2022, https://www.sundaystandard.info/virginity-as-a-social-construct-a-shame-for-men-a-pride-for-women/

4.“Lillu @ Rajesh & Anr vs State Of Haryana.” Lillu vs. State of Haryana, https://privacylibrary.ccgnlud.org/case/lillu-vs-state-of-haryana.

5.Matters India. “Two Finger Test – Unscientific, Non-Reliable.” Matters India, 14 June 2015, https://privacylibrary.ccgnlud.org/case/lillu-vs-state-of-haryana.

6.Nair, Samyuktha. “The History of the Concept of Virginity in India, and What Makes It Such a Big Deal Today.” ED Times | Youth Media Channel, 3 Mar. 2022, https://mattersindia.com/2015/06/two-finger-test-unscientific-non-reliable/.

7.Network, LI. “Landmark Judgements That Shaped the Rape Laws in India.” Law Insider India, 21 Sept. 2021, https://edtimes.in/the-history-of-the-concept-of-virginity-in-india-and-what-makes-it-such-a-big-deal-today/.

8.“Past Sexual Experience Does Not Imply Consent, Says Delhi Court in Rape Case.” India Today, India Today, 17 Mar. 2021, https://www.indiatoday.in/india/story/delhi-court-journalist-rape-case-past-sexual-experience-does-not-imply-consent-1780252-2021-03-17.

9.Section 164 in the Code of Criminal Procedure, 1973 – Indian Kanoon. https://indiankanoon.org/doc/497457/.

10. Sharma, Isha. “State of Punjab vs Gurmit Singh Case Summary (1996 SC).” Law Planet – Legal News, Law Updates & Law Exams Preparation, 2 Sept. 2021, https://lawplanet.in/state-of-punjab-vs-gurmit-singh-case-summary-1996-sc/#:~:text=In%20State%20of%20Punjab%20vs,charge%20of%20abduction%20and%20rape.

11. “State of Gujarat v. Rameshchandra Ramabhai Panchal, Gujarat High Court, Judgment, Law, Casemine.com.” Https://Www.casemine.com https://www.casemine.com/judgement/in/5e39275b46571b74e1fe0a96.

12. “The Two-Finger Test Is Unscientific and Insensitive, but It Is Still Practised in India.” Youth Ki Awaaz, 21 Oct. 2015, https://www.youthkiawaaz.com/2015/10/two-finger-rape-test-women-right/.

By- Sonakshi Singla a student of Army Institute of Law, Mohali

INTRODUCTION

Welfare of the children is necessary but that is only possible if we are acquainted with the problems and risks, they face and what all laws and policies are there for their best interest. We see numerous instances of child exploitation in form of child abuse, child marriage, child pornography, child labour, child prostitution, etc which per se indicates the failure of the law to protect the future generations. Even today children are part of the most disadvantageous minority group so far as social and economic welfare is concerned. [1] Child pornography is one such menace, which is directly linked to the sexual abuse of children. Its instances have increased in recent years due to easy access to the internet and its easy availability.

MEANING OF CHILD PORNOGRAPHY

INTERPOL (International Criminal Police Organization) defines it as a  “means of depicting or promoting sexual abuse of a child, including print and/or audio” centered on sexual acts or genital organs of the children.[2]In India the term has been defined under the Protection of Children from Sexual Offences Act, 2012 under section 2(da) as child pornography is any kind of visual display of overt sexual activity that engages a child. In 2

of visual display of overt sexual activity that engages a child. In 2020 there has been an increase of 28% as compared to the previous year which amounts to 21.7 million cases of child pornography. In the United Kingdom law, a “Child Pornography” image is an indecent photograph of the child. [3]

IMPACT ON SOCIAL BEHAVIOUR

This problem has been grossly neglected in the past but consequently, we see there have been concerted legal efforts to address child pornography. It is apparent that if an image or video is taken showing sexually explicit activities it is quite clear that sexual abuse was caused while recording it. It significantly deteriorates a child’s mental as well as physical health, and this also has a significant impact on society as when such content is posted online it makes it impossible for the child to get over it. Instead of protecting the children from this abusive treatment, the authorities are focused on apprehending the criminals, who are themselves challenging to trace and prosecute due to jurisdictional issues. The issue with society is also that even if they were never at fault, children who are forced or participating in pornographic photos and videos suffer from society’s mistreatment and abuse.

COMPARATIVE ANALYSIS BETWEEN LAWS IN INDIA AND UK

The legislation for children in UK was passed in 2003, and the legislation for children in India was passed in 2012. We may assess the variation and differences between these Acts by comparing them to the parent enactment because the Indian law was developed after analyzing the United Kingdom legislation. This statute is known as the Sexual Offences Act, 2003 in the United Kingdom (UK), and as the Protection of Children from Sexual Offences Act, 2012 in India.

This act, which addressed child pornography in UK, made it unlawful to create, publish, display, or have it in one’s possession to publish an obscene photograph of a person who is less than 18 years of age. The maximum punishment is 10 years. Saving an offensive image to a computer’s hard drive is considered “creating” the image in the context of digital media because it creates a copy of the image where none previously existed. A jury must follow accepted standards of propriety when determining what constitutes indecency.[4]

In India, the POCSO Act makes the act of using a child for pornographic purposes punishable. The use of a child in any kind of media for sexual enjoyment is particularly prohibited by Chapter III of the Act. Pornographic material preparation, production, offering, transmission, publishing, facilitation, and distribution are all crimes covered by the act. The Act stipulates five-year of imprisonment and/or a fine for using children for pornographic purposes. Additionally, a subsequent conviction could result in a sentence of at least ten years in jail or even life imprisonment, and a fine is also possible. The Act also punishes the storage of pornographic information involving a child for commercial purposes with three-year of imprisonment and/or a fine to provide the highest level of protection.

UK has taken another step toward policing online child pornography.  The Internet Watch FoundationThe Internet Watch Foundation (IWF), was established combat child pornography on the internet in the year 1996. It is an independent group that seeks to put into action the recommendations shared by the government, the police, and the two main trade associations for internet service providers in the United Kingdom, LINX (London Internet Exchange) and ISPA (Indian Space Association).

In contrast, The Information Technology Act, 2000 of India is a piece of legislation that addresses cybercrimes. Pornography is a crime punishable under the aforementioned Act because it falls within the category of cybercrimes. Under section 67 of the Information Technology Act, 2000 electronic publication of pornographic material is forbidden. The Act made no mention of cyber-pornography expressly, and it doesn’t contain any particular guidelines for preventing and restricting child pornography online. The 2008 amendment to this Act includes a new provision, Section 67B, which prohibits the publication and distribution of any material depicting children engaging in sexually explicit behaviour.[5]

CONCLUSION

The crime of child pornography is not just one offence; rather, it involves several offences and has severe repercussions. It starts with a child being sexually abused, who probably has no idea what is going on and even if he/she does, it doesn’t make it any better. Effective implementation of law and vigilance on the part of citizens is required to curb this ever-increasing problem.

Sources-

[1]Venkatesh,“Laws and Policies for Protection of Interest of Children: A Critical Analysis,”

‘https://www.legalserviceindia.com/legal/article-346-laws-and-policies-for-protection-of-interest-of-children-a-critical-analysis.html’(Visited on Nov. 9, 2022)

[2]Sexual Abuse of Children, available : https://unesdoc.unesco.org/ark:/48223/pf0000114734.(Visited on November 9, 2022).

[3]Child Pornography, available at : . (Visited on November 9, 2022).

[4]Combating Child Pornography, available at: (Visited on November 9, 2022)

[5]Deepshikha Sharma Swasti Agarwal,“An Insight to Child Pornography”(2012) 2-1 LNINDA 93

By- Devika Raj student of Symbiosis Law School, Nagpur.

ABSTRACT

There is an abundant number of philosophies that are floating in and about in the universe, there are many social workers who idolize different theories but social workers like Vinoba Bhave who turn philosophies into reality are very few. Sacrificing one’s personal life to help the community, adopting different measures to help the poor masses with dignity, giving them a respectful status, and helping them through thick and thin are some of the factors that made the simple Vinoba Bhave a great personality. We will thoroughly talk about a s to how Vinoba adopted communism as a revolutionary alternative and helped making India a better place to live for the poor who thrived on agriculture and needed land for sustaining with peace and sanctity.

INTRODUCTION

Communism is a very beautiful idea of equalization in society but can sound unrealistic sometimes, it deems to divide assets among all people of the society in an equal manner. We all know that we are a part of a capitalist society where there is an unequal distribution of wealth, in this situation the greatest sufferers are the poor or the people who lack wealth and basic amenities that are needed to sustain a normal life. The Bhoodan movement also known as the bloodless revolution was a very graceful and significant movement to distribute land amongst the

landless and to furtherly accentuate the basic living standard of the poor positively. Vinoba Bhave who was an avid follower of Gandhi requested the people who had a surplus of land to donate some pieces of their land to the poor. The ideology was to give the poor or the landless a gift of a small piece of land which they could call their own for them to live and thrive on it, how thoughtful and beautiful sort of an ideology this emerges to be will be further discussed in this manuscript. Famous politicians like JP Narayan supported this movement. Bhave marched all across India to request people to give up small parts of their respective land to the landless. Communism was further helped within this theory because people could contribute and receive according to their abilities and needs, so it became a plethora of help for the masses. The Bhoodan movement was not very successful when we see it in the broader context to change the situation of the masses but it was an appropriate attempt that a large number of people could have not necessarily thought about. Bhave had a large impact on the masses and people used to pay heed to what he said and listened to him. Many people joined his reform and contributed to donate land to him for him to help the poor. This movement further widened the concept of Gramdan. Communism was further enlarged with Vinoba’s concept of Bhoodan. Vinoba was also awarded the prestigious Bharat Ratna award. He did the commendable work of using words and actions simultaneously. The Bhoodan movement can be called a revolutionary alternative to the concept of communism as a very large amount of people talk about communism but very few work on it and bring change to society. The Bhoodan movement gained a lot of popularity and success in UP and Bihar. He gave his long-life service to the poorest of the poor, He had a charismatic personality, and called the poor the embodiment of God. Bhoodan was seen as a silent social revolution that aimed at restructuring the Indian society on Gandhian principles of Sarvodaya, truth, non-violence, love, equality, and social justice. Communism often gets reduced to a hypothetical statement that is talked about by many, but a few deem to work upon it on the ground level. As we all are aware of the fact that the Indian population largely resides in villages, and the problem is that a major chunk of people involved in agriculture is landless, so the Bhoodan movement takes a step here to help with the reformation, and it began in the village of Andhra Pradesh in 1951. Vinoba had all his life celebrated poverty. He took the oath of celibacy and voluntary poverty and went on to take the oath of helping the poor. Thinkers like Karl Marx have given theory upon communism and they have talked about how the distribution of wealth in an equal manner is necessary, this is put in place by Vinoba. Although some landlords had not willingly helped him with the donation of land, He still made a lot of progress. For a society to run, Capitalism is essential but it leads to a crushing of the masses financially. Without violence and using arms it becomes very hard to bring about a change in the stubborn society. The gift of land that he gave was given in a very graceful and easy manner so that the taker of the land did not hesitate and would happily and with dignity accept the gift. The landless were blessed to have Vinoba who thought so purely about the poor people. Communism is often reduced to a vague term and people tend to think that helping everyone and keeping them on an equal footing is either absurd or impossible but if we have a revolution in our blood and peace and sanctity in our behavior like Vinoba Bhave who is a legend in himself, we can make things possible irrespective of anything. Vinoba had a close association with Gandhi and learned a lot from him. Vinoba was a humble leader who had his very own movement with him. Bhave himself supported traditional farming and strongly believed in traditional sage-like lives. He urged the farmers to give up the use of machines in farming and also the use of money. This movement was strongly backed by the then Congress party. Vinoba also, affectionately called the poor Daridra Narayan. His idea was to meet the rich, the poor, and the communist leader and then he

concluded that violence was not the solution to the problem of poverty, inequality, and social injustice.

Aims and Objectives of the Bhoodan movement :

1.Abolition of the concept of Private ownership

2.To promote eternal social values

3.To replace Baton’s power with People’s power

4.To replace Rajneeti with Lokneeti

5.Initially total revolution

Vinoba’s concept of property was unique. He was the most conspicuous heir to the special philosophy be it social or political of Gandhi, he did not necessarily always agree with his ideas though. Vinoba believed in God, Truth, and non-violence. Vinoba believed in spirituality and wanted to do good for the people. He had unshakable faith in God.[1]

AIMS AND OBJECTIVE

To discuss how the Bhoodan movement was a revolutionary alternative to communism

To deny/accept the hypothesis of whether Bhoodan was closely related to communism and whether can it be deemed as an alternative to it

PROBLEMS

It was indeed a very beautiful thought to start a movement of this sort but the movement was led to a stop later as communism is not practical in any society as It would lead to the misfunctioning of the society. Without proper class differences society can inflate and lead to problems, In the long run, if everyone has equal wealth which was the sole ideal of this movement, it would be hard to get people who would do the menial work and other works of the lower strata that are essential to keep the balance in the society. Bhoodan movement strived to equalize people but it is not practical in the real sense. The very principle with which this movement was started was to abolish the idea of centralization and gathering of private property’s large amasses to a single person. However, the idea of revolutionizing and putting the Bhoodan movement as an alternative to communism is a bit technical and non-practical in a way. Communism means the political system in which the state owns and controls all factories, farms, services, etc., and aims to treat everyone equally. It is a very utopian idea to expect changes when going through this ideology. Communism is an economic ideology that advocates for a classless society in which all property and wealth are communally-owned, instead of by individuals.

WHAT EXACTLY IS COMMUNISM?

“Communism” is an umbrella term that encompasses a range of ideologies. The term’s modern usage originated with Victor d’Hupay, an 18th-century French aristocrat who advocated living in “communes” in which all property would be shared, and “all may benefit from everybody’s work.” The idea was hardly new even at that time, however: the Book of Acts describes first-century Christian communities holding property in common according to a system known as koinonia, which inspired later religious groups such as the 17th-century English “Diggers” to reject private ownership.[2]

With this, we understand how many attempts have been taken for Communism to flourish. Communism is a facet of altruism. It was a kind of land reform, also the ineffective implementation led due to a lack of political will in this. The state tried to now and then crush the revolutionary sentiments of the people who even tried to support the Bhoodan movement. As mentioned in ‘The Gentle Persuasion’: Bhoodan, some excerpts are quoted below:

Vinoba intervened in Bihar also after Telangana, In the beginning, the scheme of asking zamindars to donate their lands caught on. The revolutionary personality attracted a lot of people when he did the padayatra, Jayprakash Narayan gave up politics to join him in his noble work in Bhoodan. They wanted to spread the message of communism through peaceful measures. Bhave, till the time problems were resolved stayed in Bihar only, and to solve the land problem he estimated that they will need 32,00,000 acres of land. After two years of intensive activity, JP announced that the movement had not reached the target then also. The movement workers collected a lot of lands but still could not reach the target. By 31 March, the acquisition of land remained stagnant, also there was a significant decrease that was seen. Many wastelands were collected, and a lot of lands were not fruitful. The result in no way came to be a peaceful revolution, brought in by the Bhoodan or the legislative measure which institutionalized the movement in Bihar. This movement was a huge task that did not necessarily gain a lot of support from the State or the officials. Due to lack of support and less reach, this movement underperformed which could have brought about a lot of significant changes.

AFTERMATH

The pious revolution, the aftermath of which is not so pure says many, Bhoodan land had become the centre of an unparalleled scam. The data shows as to how five million acres were pledged over the last 60 years, but only 50 percent have been distributed. Rural Development Minister in 2012, Jairam Ramesh said that the land collected as a form of Bhoodan has not been productive and it is still vague as to who is using it currently. He also said that those lands are not been given to the intended beneficiaries, only unproductive land has been given to the landless poor, Adivasis and Dalits. Whereas, wealthy politicians and industrialists have grabbed those pieces of land. It was asked for a national database to check up on the current situation of those land. Andhra Pradesh which is the birthplace of the Bhoodan movement is checking in for another land reform initiative. An army of paralegals formed that would check how the land of the tribals has been taken by the non-tribals. The then State’s revenue minister, N Raghuveera Reddy urged that fast-track revenue courts be set up to resolute such disputes. There have been many cases how tribal people fighting for their lands for decades. The Naxal menace was also deeply associated with injustice with the land that needs to be urgently solved as per the minister.  [3]

[1]Maitra, Mira, A critical study of the political thought of Vinoba Bhave with special reference to his concept of property, Sep 24, 2022, 12:18 PM,https://shodhganga.inflibnet.ac.in/handle/10603/177775

[2]James Chen, What is Communism? (September 24 , 2022, 01:54 PM ),https://www.investopedia.com/terms/c/communism.asp

[3]Priscilla Jebaraj, Bhoodan land at the centre of unparalleled scam, says Ramesh, The Hindu, Sep 24, 2022, https://www.thehindu.com/news/national/bhoodan-land-at-centre-of-unparalleled-scam-says-ramesh/article3919255.ece

By- Sriradha Rai Choudhuri student of Hidayatullah National Law University

INTRODUCTION:

Pepsi and Coca Cola have had a great battle over trademark infringement in 2003. They are in fact considered to be one of the biggest rivals in the soft drinks industry. Both of them frequently use the other in their advertisements by creating misconceptions about their rival so as to strengthen their own brand name. This is called as‘comparative disparagementand is considered an infringement of a registered trademark underSection 29(8)of the Trade Marks Act of 1999.

Pepsi had won the case against Hindustan Coca Cola in 2003 , on the ground of comparative disparagement, when the latter had used the word ‘Pappi’ instead of ‘Pepsi’ and had related Pepsi with a ‘Bachhon wala drink’ and ‘Yeh Dil Maange No More’. But this was not the end of their rivalry. In the year 2014, Pepsi released an advertisement under its ‘Scary Halloween Ad Campaign’ which intended to have a similar effect on Coca Cola.

Coca Cola acquired Thums Up in 1993, it originally being a Parle owned drink so as to relaunch itself in the market and serve as a suitable competitor to Pepsi that was growing at a rapid pace among the consumers. Taking all these developments into account, this article tends to answer three primary gray areas with a futuristic outlook-

1. Could there have been an infringement suit against Pepsi for its Scary Halloween Ad Campaign?

2. Was there any reason related to trademark as to why Coca Cola acquired Thums Up?

3. Could there be another big battle over Thums Up

SCARY HALLOWEEN AD AND INFRINGEMENT-

Pepsi had released a Scary Halloween Adduring 2014 where it showed a Pepsi can wearing a ‘Coca Cola cape’. Pepsi’s marketing was meant to show ‘Coca Cola’ as something ‘scary to drink’, by releasing it during Halloween. This could be considered as going against the reputation of Coca Cola. What happened later was that another post came up in favour of Coca Cola stating that ‘Everybody wants to be a hero’.

Here, there was no infringement suit filed by Coca Cola against Pepsi. The reason could be that the subsequent post helped to save the reputation of Coca Cola.

Still, Coca Cola could have very well filed such a suit against Pepsi. Although Section 29(8)(c) does not expressly point out whether the damage to reputation ought to be actual or could be just intended, the reading of Trade Marks Act, 1999 and its interpretation through cases implies the same. In trademark infringement, the likelihood of confusionis more important than ‘actual confusion’. This was also clarified in a recent case by the Supreme Court in Renaissance Hotel Holdings Inc. v. B Vijaya Sai, 2022. As ‘comparative disparagement’ is also a type of infringement, ‘the likelihood of causing damage to reputation and thereby confusion among the consumers’ could very well be considered a part and parcel of the provision. Hence, if Coca Cola would have filed the suit against Pepsi, a favourable decision would have come for it just like the 2003 decision discussed before. The only difference could be in the amount of damages to be paid as there was not much loss to its reputation.

Another question that evolves from this Scary Halloween Ad is whether a comparative advertisement that is made in response to another comparative advertisement be considered as infringement. In the present case, the subsequent post was given by a fan of Coca Cola. If Coca Cola would have posted the same the story could have been a bit different. Technically the subsequent post would also be against the reputation of Pepsi and hence fall under the ambit of ‘comparative disparagement’. At the same time, this could be defended on two grounds-

1. The complainant itself did not come withclean hands

2.The subsequent advertisement tends to clear the confusion among the public and protect its own brand, rather than showing its superiority

WHY DID COCA COLA ACQUIRE THUMS UP?

The first thought that comes to everyone’s mind is that Coca Cola acquired Thums Up to get rid of another competitor like Pepsi. This was true to certain extent. But later when Coca Cola realised that Pepsi was winning the game, because of the absence of Thums Up- it again brought Thums Up back on the shelves.

However, people miss out on the trademark related aspect of this acquisition. Before the acquisition by Coca Cola, Thums Up had a slightly different logo. It had a red background and white lettering . In fact, the main motive of Thums Up was to capture the market, left void by the Coca Cola Company withdrawal. If we would look at Coca Cola logo, it has a similar colour combination- red background and white lettering. This could have been a way of association with Coca Cola that Thums Up wanted to showcase to the consumers. Thums Up being new could have actually tried to cash on the existing popular brands by way of similar colour marks.

Both being black drinks, in similar industries, with similar colour combinations could pose a possibility of confusion and association among the consumers. In fact, Coke was widely recognised around the world through this colour combinationand it used this colour to attract consumers.

Coca Cola, being a well-known brand could have filed a passing off suit,  even without its colour mark being registered as such even without its colour mark being registered as such, just based on its goodwill. But it decided to go along a different path. It acquired Thums Up and brought it under its own branding. As a result, we see that not every time an infringement suit could be beneficial in the business world. One should understand the use of it.

A GREAT POSSIBILITY OF ANOTHER TRADEMARK BATTLE OVER THUMS UP-

It is quite astonishing to see as to why there has been no trademark infringement suit filed by Pepsi against Coca Cola for the logo of ‘Thums Up’ itself. It goes to great measures against comparative advertisements of Coca Cola, but has failed to identify this major trade mark game being played by the Coca Cola company.

Colour marks really play a significant role. It is considered as the mostly used non-conventional mark. A combination gives a higher distinctive character to the mark. Moreover, for illiterate people, it is the colour that attracts most even over the shape of the logo. Colour marks leave a lasting effectin the consumer’s mind and hence, become important. It is also easy to confuse consumers by using similar colour combinations.

Coca Cola has always played a trademark game. It first acquired Thums Up to bring its ‘red and white colour combination’ under its own umbrella. Later, after Coca Cola acquired Thums Up it modified the logo to introduce ‘blue stripes’ or ‘blue outline’ or a ‘blue background’. Coca Cola deliberately chose the colour ‘blue’ to make it similar to Pepsi logo. Pepsi has red, white and blue colour combination and Thums Up has it too.

Both of them fall under similar class of goods and services. In fact, the good is exactly the same. Under Section 29, the similarity is visible in both the ‘mark’ and the ‘class of goods’. Moreover, consumers have a higher ‘likelihood of confusion’ as both are ‘black drinks’. Hence, the colour black also adds to the already prevailing colour combination. This leaves a lot of scope for Pepsi to claim infringement of its mark. The fact that it has not yet been claimed is quite surprising, and it seems that other factors must be playing in this regard.

CONCLUSION-

It can be concluded that Pepsi and Coca Cola may still have many upcoming trademark infringement battles to deal with. Mostly, these battles would revolve around comparative disparagement issues and similarity with respect to colour marks. Pepsi has the scope to cause Coca Cola to refrain from using the ‘blue’ colour in combination with its already existing ‘red and white’. But this would be so, only when Pepsi takes any action.

Moreover, the Indian trademark law itself requires a more nuanced approach towards colour marks due to its increasing ambit. In fact, even in the international scenario, the Vienna Code for classification of figurative elements falls short of specifically identifying combination of distinct colours present in any mark. It only allows for specific combinations or a group of colours without any combination, which makes the public search a difficult and lengthy process. Also, the doubt regarding whether a responsive comparative disparagement would be infringement or not must be cleared.

By- Akshay Pathak student of National Law Institute University, Bhopal.

Abstract

Artificial intelligence (AI) is permeating many facets of our society. New digital technologies that depend on “machine-learning algorithms” to analyze massive amounts of data in contexts as diverse as medical, transportation, financial services, and entertainment are delivering extremely accurate predictions that often exceed people in accomplishing vital jobs. Thus, the potential benefit of artificial intelligence in the legal profession has not been overlooked., with professors, lawyers, judges, and jurists starting to investigate the ramifications of these digital technologies for the legal system in India. This article will try to analyze the function that AI can play in the legal system. Furthermore, the blog provides a comprehensive picture in which certain current and long-term concerns are addressed, as well as a potential path to avoid problems.

Introduction

India, the world’s biggest democracy, is a developing nation with a growing digital sector. As the population rises, so do crime rates, resulting in more civil and criminal lawsuits. The steady growth of pending cases is a major worry for Indian courts, rendering them inefficient and delaying justice delivery, which undermines a civilized society’s rule of law. To minimize anarchy and improve judicial efficiency, courts have created ADR, Fast Track Court, Village Courts, Court Management Systems, etc. These trends have been effective in reducing case backlogs, but a victory over pendencies has yet to be achieved. Legal technology provides a

remedy to these traditional techniques. With the contemporary period, cyber tech advancements and their application increased swiftly in practically every area, becoming part of our daily lives. The trend toward digitization is developing, and the information society is transforming the Indian Judiciary with the assistance of AI (AI). Artificial intelligence is a computer-based system that can think, act, and comprehend visions like people. Digitalization speeds up judicial processes at various levels. This sector is expected to aid attorneys and judges in decision-making, offering quick access to legal resources, evaluating evidence, creating documents, etc., to enable efficient and sustainable justice delivery.

The Present State of Artificial Intelligence in the Indian Legal System.

Due to the labor-intensive nature of the legal industry, the whole legal process in India is conducted manually. As a consequence, AI is still in its infancy, with many older proponents feeling that technology should not be used widely since it may one day replace humans, hence avoiding AI in law. However, there are several fervent proponents of AI both judges and lawyers included. As stated by “Justice D.Y. Chandrachud”“Technology is important inasmuch as it promotes the effectiveness, openness, and objectivity of public administration. AI is available to give judges a facilitative tool for reviewing or assessing the work, the procedure, and the decisions.” Further application of AI in the Indian judicial system is also advocated by the Indian government; The AI Task Force Report is one example. It was used to thoroughly test artificial intelligence. This task group, directed by “N. Chandrasekaran, Chairman of Tata Sons”, was constituted by “the Ministry of Commerce and Industry” to evaluate the monetary advantages of AI and assess how it may help India. To integrate AI into our economic, political, and legal thought processes so that we have the systematic capacity to support the objective of making India one of the top economies with an AI-rich sector.Moreover, recently “Cyril Armarchand and Mangaldas became India’s first law firm that has realized AI’s potential & is aggressively implementing it.“CAM” has made its mark on history by being the first legal firm in India to license “Kira,” a machine learning technology created by “Kira Systems in Canada”. This AI-based program can perform multiple tasks at the same time, which saves a great deal of energy and time. The “Kira” technology could be used to evaluate legal documents, detect, and identify potentially risky locations, and extract provisions from a variety of legal documents.

Artificial Intelligence—A Boon to the Indian Judicial system?

In India, over 3 Cr. pending cases hamper the process of justice, and as the saying goes, “justice delayed is justice denied”. Hundred of attempts are being made to remedy the problem, for instance limiting vacation time and enhancing judgment strength, but it’s time to take this issue more seriously, which is where AI comes into the picture. Every year, a high number of identical cases are filed, requiring courts to utilize data science and artificial intelligence (AI) to give important information about current cases based on similar historical instances. AI may be beneficial in the evidence stage, which is crucial. It occupies a lot of court time since it’s so crucial. AI helps judges make rapid choices. Multiple delays are usual at this point owing to the Investigation in charge, witnesses, etc. AI technology would foresee probable delays, which would aid courts since they would know what causes delays in comparable instances, such as

rapes, murders etc. This evolutionary technology will help judges to manage caseloads. It will also help courts avoid hostile witnesses by giving extra police protection.

The Former Chief Justice of India, “S.A. Bobde”, has said in an interview that AI may be used in courts to avoid excessive delays in justice. He said “AI won’t replace human judgment or judges.” Sharing further insights, he said, “Only the repetitive, mathematical, and mechanical portions of judgments can be helped by machine learning…we’re examining the possibilities of adopting it.” The Chief Justice of India thinks AI will benefit legal and judicial institutions. If implemented with a proper legal framework, it will help the Indian judicial system

Challenges of AI in Law

AI in the field of law is still in its nascent stage in India. Attorneys are cautious to utilise this technology out of concern that it would have a detrimental influence on employment. They believe that technology will displace lawyers and legal clerks as the principal source of income, leading to a rise in national unemployment. Further, the majority of leading-legal practitioners are reluctant to alter their previous practices and prefer to practice without the assistance of AI. Moreover,there is no specific definition of artificial intelligence’s legal personality in the present law,and robots’ complex nature makes it hard to decide whether regular rules and conventions would apply in the same manner, the existing legislations do not hold AI accountable for its own acts or omissions, therefore until or unless the rights and duties of AI-powered gadgets are elaborate by appropriate laws, there will be uncertainty as to the liabilities of AI-powered gadgets.

The foundation of machine learning is algorithms provided to computer systems, which are subsequently executed by the machine. An important impediment to the application of AI technology in India is the prevalence of obsolete hardware and software, the inaccuracy of the data, and the inability of the machine to work effectively without a substantial quantity of precise data. Spending a lot of money is necessary since AI machines are complex machine systems with the ability to learn and react autonomously. Because most AI-driven machines are produced by foreign businesses, only the largest legal firms can afford to invest in them. The acquisition of them becomes even more challenging for small and medium-sized legal firms as a result.

Further, it’s crucial that AI-powered machine learning tools and gadgets be constructed in a manner that protects the privacy of the parties involved. To avoid abuse, preserve confidentiality, provide a just legal procedure, and create a security measure to guard against privacy violations, the legal framework must account for the fact that machine learning processes massive volumes of data. In 2018, the NITI Ayog published National Strategy for Artificial Intelligence” a policy document that discussed the value of AI and its potential applications throughout India’s economy.A nationwide artificial intelligence initiative was also suggested in the 2019 BudgetIndia’s artificial intelligence (AI) business remains uncontrolled and unregulated despite the country’s technical progress.

The Way Forward

To ensure the incorporation of AI, we must adopt a balanced approach. Here are some recommendations:

1.It is necessary to establish a solid regulatory structure that specifies the duties and obligations of Artificial intelligence.

2.Due consideration should be given to the topic of responsibility in order to regulate its conduct.

3.Improved data protection measures are required to ensure privacy. Instead of sitting on the sidelines and resisting change, we should instead embrace and take use of AI by establishing appropriate laws to safeguard its users’ interests

Conclusion

To sum up, there are many ways in which artificial intelligence (AI) has improved the practice of law. It has helped lawyers conduct more efficient research; judges can benefit from its predictive technology; and law firms can use it for due diligence, data collection, and other tasks to save time and increase productivity. Despite its benefits, AI cannot yet replace legal professionals. While AI may be useful in certain contexts, it is still lacking in strategic thinking and originality. Robots aren’t very smart, have little empathy, and can’t think on their feet. There are a number of obstacles to incorporating AI into the legal industry, including the fact that it is still susceptible to risks. As a result, a thorough legal framework is required to regulate AI and avoid its data exploitation of customers. To fully reap the benefits of artificial intelligence, we need a legal framework to limit its downsides.

By- Anshika Srivastava student of Rajiv Gandhi National University Of Law

Introduction

The culturally constructed traits of men, women, girls, and boys are referred to as gender. Underneath, alongside interpersonal interactions, are all of the values, behaviors, and obligations that are inherent in being a woman, man, girl, or boy. Gender is a construct of society that can transform over time and differs across one culture to another. Sex is related to gender but distinct from that; it includes all of the biological and physical traits that distinguish females from men and intersex people, including specific chromosomes, hormones, and reproductive organs. Gender inclination is connected to gender yet distinct from it, just like sex. An individual’s deeply entrenched, unique, and internalized concept of gender is referred to as their gender identity. This view may or may not be supported by a person’s genetic factors or even the sex to which they were assigned at conception.

One might also alter their gender orientation or sex traits in order to be consistent with their intuitive understanding of gender identification, idea concerning what it means to recognize as either a man or a woman, as non-binary, or as genderqueer. This process is known as gender transition. Since their gender identification differs from the sex and gender they were given at birth, transgender and transsexual people typically require transition treatment during this process. In many countries throughout the world, transgender people have the legal right to officially alter their name to reflect their gender identification. In some areas, it is also possible to alter one’s legal sex identifier on credentials like passports, birth certificates, and driver’s licenses. Various jurisdictions have different standards; some call for sex reassignment surgery while others do not. In order to make it simpler for individuals to transform their legally recognized gender without needing any medical intervention, gender reform laws have recently been introduced in Scotland and Spain.

The Concept of Gender Self-Identification

A person should be able to declare that they are legally identifying with the gender of their choosing without having to submit to any medical examinations. The idea of gender self-identification enables someone to simply state their preferred gender and be able to legally identify it, without having to submit to any medical examinations.

The existing procedures for stating one’s preferred gender are cumbersome, costly, and humiliating. Transgender persons experience discrimination on a daily basis, thus it is critical to take action to combat it and offer the resources and support that are required. Gender identity is viewed as an innate aspect of the individual that may or may not require medical intervention, hormonal therapy, or other forms of treatment. All people must have the freedom to make decisions that influence their own bodily integrity and physical autonomy. Valuing people’s freedom to practice their beliefs, choose their own attire, behave, and display their identity however they like does not adequately describe gender self-identification. Everyone is impacted by this political and social demand, but women, gay people, and transsexuals are particularly affected. Some members of the trans community now have access to crucial legal recognition and transition-related healthcare thanks to the medicalization of gender identity.

Transgender individuals all across the world, especially in India, have requested the system for gender self-identification due to the widespread prejudice they have faced. This topic continues to divide people in Europe, both within and outside of the LGBT community. While some argue that declaring one’s preferred gender is time-consuming, expensive, and demeaning, LGBT and feminist organizations contend that certain laws might put women in risk and push more gay youngsters to get hormonal treatment and surgeries.

Nations where Self-ID is Accepted:

Self-ID is accepted in 15 different countries worldwide. The gender self-identification system for people wishing to change their legal gender was approved in Denmark for the first time in 2014, making it the first nation in the world to do so. Portugal, Malta, Argentina, Costa Rica, Ireland, Greece, Luxembourg, Mexico (only in Mexico City), Norway, Brazil, Uruguay, Ecuador, and Columbia are other nations that now use this system. A recently passed law in Hungary virtually prohibits all material concerning homosexuality and gender transformation from school curricula and children’s television programmes.

Addressing the Gender Recognition Reform Bill in Spain

The new Spanish law mandates that judges must grant consent for youngsters between the ages of 12 and 13 to change their gender. Minors must still be escorted by their own parents or any other legal guardians between the ages of 14 to 16 in order to enter. Until recently, gender dysphoria—the psychological condition in which a person feels that their gender identity and biological sex do not match—was required to be diagnosed in order for a transgender person to live in Spain. According to the new legislation, anyone requesting a Gender Recognition Certificate must have spent three months living exclusively under the declared identity (6 months in case they are ageing between 16 and 17 years).

Formerly, the person had to have occupied the declared identity full-time for a period of two years. In certain instances, the persons were required to present documentation proving they had taken hormones or that they had lived for two years as the gender they identified with. The minimum qualifying age has been lowered by the Bill from 18 to 16 years old. It suggests giving the candidates a three-month “reflection period” in which they can change their minds. It permits anyone who are 16 years old and older to legally change their gender markers without a doctor’s supervision. The bill also calls for the outlawing of gender-neutral or antisemitic conversion therapy. Additionally, it aims to fine and punish those who assault members of the LGBTQ community. The prohibition against lesbian couples registering their children under both parents’ names will also be lifted.

Scotland’s Gender Recognition Reform Bill

Scotland became the first nation in the United Kingdom to adopt the self-identification method for changing gender when the Gender Recognition Reform (Scotland) bill was passed. It makes it simpler for people to alter their legally recognized gender, even if they are just 16 years old. Additionally, it has characteristics with Spain’s Gender Recognition Reform Bill.

Does India have such a system for identifying one’s gender?

Throughout India, transgender individual’s rights are governed by the Transgender Persons (Protection of Rights) Act, 2019, and the Transgender Persons (Protection of Rights) Rules, 2020. The Officer must receive a plea for gender recognition, under the Rules. Furthermore, parents are permitted to apply on their child ‘s account. There won’t be a medical or physical examination required for the processes for obtaining an identity or gender-change certificate.

In the 2014 decision of National Legal Services Authority (NALSA) v. Union of India, the Supreme Court determined that transgender people belong to a “third gender.” Per the Court, an individual’s right to live in dignity is made possible by plurality in self-expression, which is what is meant by “dignity” as stated in Article 21 of the Constitution. The fundamental right to dignity guaranteed by Article 21 was expanded to include one’s gender identity. It was also highlighted that the Constitution’s Article 14 (which defines the right to equality) and Article 19(1)(a), which defines the freedom of expression, both use the gender-neutral phrase “all persons.” Additionally, the SC decriminalized same-sex relationships in 2018.

The 2019 Transgender Persons Act’s Elements

According to the Code, an individual is considered transgender if their gender identity differs from the gender assigned to them upon conception. It includes people who recognize themselves as intersex, genderqueer, transgender, or with socio-cultural orientations such as kinnar and hijra.

The Law outlines transgender individual’s right to self-perceived gender identification. The District Magistrate’s department can help people acquire an identification document; if ones sexual orientation changes, one may need to get a new document.

A clause in the Act grants transsexual people the right to live with their parents and other close relatives.

The Act forbids discrimination against transgender people in a number of fields, including healthcare, employment, and education.

Seeks to establishe the National Council for Transgender People.

Punishment: According to the law, offences committed against transgenders are punishable between six months and two years in prison as well as with a fine.

By- Trishi Tanya student of Institute of Law, Nirma University

We frequently associate the term “crime” with a particular segment of society, specifically the male group and neglect the female section. It does not indicate that there are no female criminals nearby but demonstrates our society’s complacency regarding the issue.  Female criminality is a neglected area in our criminal justice system. Socially, crimes committed by women are regarded as more heinous than those committed by men. It is believed that women’s criminal behaviour is more dysfunctional than men’s because of the central role that a woman plays in the family as a mother, wife, caregiver, and more. Because of the significance and significance of her role, female criminality is regarded as more dysfunctional (William & Christopher, 2004).

Women have naturally emerged as the foundation of every society. When a woman chooses to be self-reliant, the majority of families do not support, respect, or accept her choices. This encourages women to rebel by giving them a platform from which they are more likely to deviate or commit a crime. Women’s participation in academic, scientific, technical, and other productive and non-productive activities has increased over the past few decades. One possibility is that the growing support for women in these fields is a factor in the rise in crime among them. Naturally, females have a lower rate of crime than males do.

Several factors, including an increase in male crime and a decline in the traditional role played by women in crime, may be to blame for this disparity in the rate of crime. The majority of those arrested are men. Men are detained eight times more frequently than women. Except for prostitution, the arrest rate for men is higher than that for women for every crime: Because men are responsible for the majority of criminal activity, theoretical explanations have focused on male criminality (Nagla, 1982).

According to Prison Statistics India 2021, most female offenders are of the age group 30-50. The conviction rate for the age group 18-30 is980, whereas for 30-50 it is 2454. Female prisoners undertrial, of the age group 18-30 is5391whereas between 30-50 are8638(Prison Statistics India , 2021). Women committing crimes mostly belong to urban areas rather than rural areas and belong to socially and economically lower sections of society. As of 2021 data, the state with the maximum number of female offenders is Uttar Pradesh.

There can be various reasons for committing a crime, these can be broadly categorized as social, economic, psychological and biological.

Social- It comprises illiteracy, lack of proper education, conflicting thought, ill-conceived parents, family responsibility, social disorganisation and mobility.

Economic- This includes poverty, extravagance, industrialization and urbanization.

Psychological- It consists of maladjustments in interpersonal relations, emotional instability neurosis and psychosis.

Biological- Includes conditions such as insanity, physical disability and hormonal changes.

There may be other factors such as lack of employment, bad working conditions, ill-treatment by the spouse, husband engaged in activities like drinking and gambling, selfishness, suspicious nature, arrogance, desire for more and quick wealth, etc.

In the Indian context, certain murders of respondents’ children were committed because the child was illegitimate, the woman was afraid of social exclusion, or she was in extreme danger as a result of a fight with her husband. In this way, in the majority of the cases, the husband-wife relationship demonstrated a seriously significant calculation of the causation of committing a crime. The other recognized causes were the offender’s illicit relationships with a man, the victim’s illicit relationships with a woman, and a conflict with or ill-treatment from her husband. It has been observed that family plays a significant role in both murders and other crimes. For instance, in excise offences, when a husband was detained for illegal distillation, his wife was also detained for assisting the husband (Mili, Perumal, & Cherian, 2015).

While popularly known as battered woman syndrome, feminist criminologists like Alison Young have argued that to qualify as perpetrators, women must be able to prove that they were victims first. Many studies conducted by feminist scholars like Carlen, Nagel and Weitzman in the 70s-80s period, affirmed that women were being incarcerated more as punishment for being a deviant woman they were than for the crimes they committed, with single mothers, sex workers and women from a poorer socio-economic background receiving harsher sentences. It reinforces the idea that male violence is normal, and stereotypes men as perpetrators while maintaining the notion that women are passive victims of their circumstances, or just of their `disturbed` minds even while committing crimes (Bajpai, 2018).

Taking the example of the movie ‘Darlings’ released on the OTT platform (2022), starring Alia Bhatt, addresses a similar dilemma where the protagonist Badrunissa “Badru” Shaikh is beaten up by her alcoholic husband ‘Hamza’ every night after drinking. After tolerating the torture for three years of their love marriage, repeated warnings and attempts to change her husband’s behaviour and losing a child due to Hamza’s cruelty, Badru turns to seek revenge and similarly tortures him. She is later suggested by her mother to kill Hamza by tying him to the railway tracks. Even though Badru realizes she is acting in the same way as Hamza and tries to free him, he ends up getting hit by a train upon which her mother confesses that she killed her husband years ago after suffering the same as Badru. The movie portrays Badru hardly as a criminal and mostly a victim of her circumstances.

Along similar lines is the 2022 web series ‘Delhi Crime: Season 2’ which portrays a woman with her group committing the serious crime of murder for extra monetary gains. It is also depicted that she later kills her gang members during a conflict while defending herself. The woman along with her gang killed the elderly people in the city and looted their cash and precious goods.

Types of crime committed by women vary largely from murder, homicide, illicit distillation, immorality, drug-related crimes, theft, smuggling, quarrelling, kidnapping, forgery, blackmailing, larceny, dacoity, adultery and marital crimes. It is also not necessary that these crimes are done alone by a woman. There is often a role of an accomplice. Reports suggest that the chance of committing a crime with a known accomplice is much higher than that of an unknown person. It is usually seen that the accomplice is either the husband or a close relative of the woman.

The after-effects of a crime committed by a woman not only impact the offender herself but also her family, children and society at large. There is disgrace and stigma attached to the offender as well as her family. It leads to financial losses and affects social life, personal life, individual freedom, and detachment from family and society. It affects a child’s upbringing, and personality, social harassment, and loss of moral support and acts as a negative model to children as the mother is the most important figure in a child’s upbringing. The status of the family is affected, marriage may become a problem, sibling’s future life may be affected and also leading to the disintegration of the family. The criminals may also feel that they have done irreparable harm to society as criminals sow seed to a problematic society.

Thus, to prevent this from happening again steps and measures can be taken to control female criminality such as the reintegration of women offenders, rehabilitation and reintegration, learning programs, reformation of the criminal justice system, research in the field of female criminality, prevention of crime at the community level, amendment of laws, etc (Menon, 2020).

One of the major steps that can be taken after the conviction of a female criminal is imprisonment. The 1,319 prisons in the country consist of 564 Sub Jails, 424 District Jails, 148 Central Jails, 88 (Prison Statistics India , 2021). The prisons in India lack basic facilities for sanitation and hygiene. Moreover, most of the women’s prisons are overcrowded and have poor living accommodations. Women prisoners in India also face various other challenges in the prison such as custodial rape. Though not explicitly mentioned in the Constitution of India, prisoners have certain fundamental rights through judicial interpretation (Prabhune, n.d.).

Criminals and crime have both existed in society since the beginning of time. In traditional society, female criminality was viewed as a singular problem. Things have changed over the past few decades Many people today see the rise in female criminal activity as the response, the retaliation, and the ultimate means of survival. Individuals, families, and society as a whole are affected by female criminality. This creates a need for additional research on this topic, and laws ought to be altered accordingly. However, the concerned authorities should act as a catalyst for a consistent effort to overcome practical obstacles in the implementation of the rules and measures to achieve the common goal of improving outcomes for women in prison, their children, and their communities. The compelling reasons and circumstances that led a woman to commit that particular crime should be taken into consideration by the courts when deciding a case. According to the majority of other authors’ case studies, women use crime as a form of retaliation for being suppressed because of our impartial social system. Therefore, no one theory can adequately explain the criminal behaviour of females. In addition, criminologists would probably be able to answer all of the unanswered questions if they conducted a comprehensive study to discover a fool proof method for addressing the growing problem of female crime.

Irrespective of the gender of the offender, it is crucial to stop crimes from happening in society. Therefore, competent authorities, educational institutions, and the media must implement preventive measures to address the excessive surge in female offenders in society. These efforts include legal expertise, sex education, social action movements, pre-marital and post-marital counselling, public awareness, aid, and support for females who feel excluded or lonely by their families, etc. Additionally, detained female offenders need to get appropriate rehabilitative and supportive guidance that may help them grow as people and help them realize what is good and what has been labelled as bad. These restrictions may contribute to a progressive slowing down of female criminal activity.

References-

Bajpai, M. (2018, September 18). Retrieved from Feminism in India: https://feminisminindia.com/2018/09/18/feminist-criminology-leniency-women/

Banerji, O. (2021, October 25). ipleaders. Retrieved from blog.ipleaders.in:https://blog.ipleaders.in/female-crimes-related-theories-and-postulations/

Jus Corpus. (2022, July 13). Jus Corpus. Retrieved from Jus Corpus Law Journal:https://www.juscorpus.com/critical-analysis-of-female-criminality-in-india/

Menon, N. (2020, July 28). Retrieved from YL Cube:https://ylcube.com/l/blog-posts/blogs-collection-0/2020/07/28/female-criminality-india/#:~:text=Lack%20of%20education%2C%20rivalry%2C%20strife,criminality%20among%20women%20is%20expanding.&text=Women’s%20Emancipation%2D%20Women%20did%20not,as%20men%20in%2

Mili, P., Perumal, R., & Cherian, N. (2015). Female Criminality in India: Prevalence, Causes and Preventive Measures 1. International Journal of Criminal Justice Sciences; Thirunelveli Vol. 10, Iss. 1, 65-76.

Nagla, B. K. (1982). The Criminality of Women in India. The Indian Journal of Social Work Vol. XLIII, No. 3, 273-282.

Prabhune, A. (n.d.). Retrieved from Legal Service India:https://www.legalserviceindia.com/legal/article-2111-a-legal-analysis-of-rights-of-female-prisoners-under-constitution-of-india.html

(2021). Prison Statistics India . New Delhi: National Crime Records Bureau, Ministry of Home Affairs.

Tripathi, A. (2021, February 18). ipleaders. Retrieved from blog.ipleaders.in:https://blog.ipleaders.in/female-criminology-critical-analysis/

William, A. T., & Christopher, A. J. (2004). Women Criminals in India: Sociological and Social Work Perspective. Delhi: Anmol Publications Pvt. Ltd.

By- Shristy Gupta and Tanisha Jay Raval students of Institute of Law, Nirma University

ABSTRACT:

This article deals with some specific provisions of the Special Marriage Act,1954 that violate a person’s basic fundamental rights and analyzes the issues with the help of case studies. Also extensively analysed is the necessity for the Act to be updated to reflect modern society. Regulation and reform are required in order to address the issues with its adoption and implementation in society.

INTRODUCTION:

Even in the modern era, when the Indian tricolour flag flies high, two consenting people still deal with a lot of stress in order to officially declare and record their marriage. Inter-caste weddings are strongly opposed in several regions of India, where marriages between members of the same socioeconomic class or caste have been the norm. The Special Marriage Act, 1954 is a law passed by the Indian Parliament to provide a special type of marriage for Indian citizens and all Non-Resident Indian citizen, regardless of the religion practiced by either party, allowing either spouse to maintain their original identity and adhere to the religion that they were raised in.

A type of marriage in which the spouses were compelled to forsake their respective beliefs and enter into a secular partnership was established by an Act approved by the then-British government in 1872.But it was necessary to adopt a new legislation to accommodate interfaith marriages after India’s Independence. Marriage was to be established as a secular institution devoid of any religious formality and only requiring registration.

Personal laws do not apply to marriages performed in accordance with the Special Marriage Act. The Act’s primary 3 objectives include providing a special form of marriage in inter-faith marriages, registration and divorce. The Act enables the union of individuals with two varied religious origins in their marriage.

Being a secular Act, it is crucial in releasing people from the constraints of conventional marriage. In this article, we have raised problems associated with sections 6, and 7 of this Act and analysed the same.

Couples planning to wed under the Act must notify the marriage officer 30 days in advance of the wedding in accordance with Section 5 of the Act.

Section 6 requires the Marriage officers to keep a record of such notices in the Marriage Notice Book which would be open for inspection to any desirous person without any fees. A copy of such notice shall also be published in some conspicuous place in his office.

Section 7 makes it open to any person to object to such marriage before the expiration of thirty days.

ISSUES AND ANALYSIS:

The Special Marriage Act intends to regulate and legalize interfaith marriages in India. The Act though enacted with a progressive mindset showcases certain provisions which contravene the fundamental rights of couples. Sections 6 and 7 of the Act are mainly under scrutiny.

Sections 6 and 7 of the Act have been incorporated from the 1872 Act. It requires the Marriage officer to publish the marriage notice in some known place in his office, thus inviting objection from “any” person. The marriage notice made available to everyone contains personal details such as name, occupation, residence, address, contact details etc. These details are inherently personal to oneself and should only be disclosed to the authorities and officials solemnizing the marriage. When such information is left open for inspection by the public at large, this creates a gross violation of the Right to Privacy recognized as a fundamental right under Article 21 by the Supreme Court of India. Allowing easy access to such information also threatens the life, liberty and safety of such couples.

Section 7 of the Act allows “any” person to object to an intending couple’s marriage notice on the grounds listed in Section 4 of the Act. But even though this objection is only permitted on the few grounds specified in the Act, this clause contradicts Article 19 on freedom of expression Article 21 on privacy, and Article 14 on equality.

There is no reasonable ground behind the enactment of such a provision. It plays with the intricacies of marriage and the right to choose a partner freely. The provision of publishing the notice to a conspicuous place under Sec 6 adds a step further in encroaching the privacy of individuals.

A provision similar to Section 6 and 7 is absent under any personal laws thus contravening Article 14 on right to equality as well as Article 15 on the prohibition of discrimination on grounds of religion, caste, and race.

The public display of the notice issued by couples wishing to get married, bestows a sharp cut on their privacy, the sensitive information of people is left without any shield. The inter-religious couple would thus be vulnerable to vigilante attacks, pressure from various organizations, family pressure, etc. who might try to influence their decision to be married during the course of thirty days. 

The problem is not only in the social biases that couples face but they also face problems on the administrative level as visible in the case of Afreen Ansari.

Afreen Ansari, a Muslim woman, wanted to wed a Hindu man, but her parents were against such a union. Therefore, they decided to get married in court using the SMA. They were unable to wait any longer due to various circumstances and approached the Magistrate’s office for verification of documents; however, the staff successfully discouraged them in a number of ways. They threatened to send a notice to the applicant’s parents, deleting their application for dubious reasons which clearly violates the couple’s right to privacy and liberty. Although the law does not require that such notice be provided to the families, marriage officials and State governments frequently go above and beyond the letter of the law to dissolve these unions. The couple moved the Delhi High Court a few days later, contesting Sections 6 and 7 of the Act, such was their fear of being found out.

It has been clearly stated by the Supreme Court in Shafin Jahan vs Ashok KM (2018), that the Right to Marry a person of own choice is a Fundamental choice under Article 21. These intermeddlers have absolutely no basis to interfere with one’s personal choices.

Couples frequently switch to the religion of one spouse and have their marriage recorded under personal laws to get around the Act’s complications. This allows them greater privacy and confidentiality. This causes people to lose their sense of personal religious identity, which goes against the Special Marriage Act’s fundamental principles. However, lawmakers have noted these patterns among couples, and states like Uttar Pradesh and Karnataka have introduced anti-conversion legislation prohibiting conversion exclusively for the purpose of marriage, declaring any marriages performed before or after the change are invalid. Legislators continue to make it difficult for interfaith couples to be married. The only recourse left to folks when they can’t even be married legally is to run.

The problems are not restricted only to the provisions of the Act but also include the implementation and awareness regarding the same. Often times it is assumed by society that the woman converts to her husband’s religion after marriage even after it is carried under the SMA act wherein according to section 4 of the act it allows both spouses to retain their respective religious identities. Pertaining to this issue in a case, the petitioner, a Parsi Zoroastrian, married a Hindu man under the Act. The Valsad Parsi Trust stated that she lost her religion after marrying into her husband’s religion, hence she was not permitted to carry out their parents’ final rites and ceremonies. Despite reasoning with the trustees they refused to allow her to do so as they believed that marriage to a Hindu man resulted in the loss of her religious identity as a Zoroastrian. On approaching the court, the majority judgment recognized it as the woman’s “deemed conversion” in an interfaith marriage meant that she lost her Zoroastrian identity. The majority judgment’s decision was founded on erroneous interpretations of the Special Marriage Act, acceptance of the “doctrine of coverture”. However, the minority dissenting opinion recognized the Special Marriage Act’s goal and determined that a Parsi Zoroastrian woman had not converted to her husband’s faith because the couple had been married under the Special Marriage Act, which permitted each party to maintain their own religion. Section 4 states that couples marrying under the act retain their respective religious identity and sentiment. Moreover, men are not assumed to have deemed conversion according to the judgement which violates article 14 the right to equality. An appeal before the Supreme Court is pending.

In a similar manner, a complete family was destroyed in the case of Mayakaur Sardar VS the State of Maharashtra, and the couple’s fundamental right to wed and live together was taken away from them as they belonged to different castes.

A recent decision by the Allahabad High Court in the case of Safia Sultana vs State of Uttar Pradesh concluded that it is not necessary to apply for a notice of an intended marriage under section 6 and to consider objections under section 7 of the act. In a nation where marriage is essentially an obligatory institution guided by community honour, the ruling prioritises individual choice. The ruling advances autonomy and safeguards constitutional rights in the proper direction. Among others, the Rajasthan High Court, Punjab and Haryana High Courts, and the Delhi High Court determined that these criteria violate privacy and are intrusive

CONCLUSION:

Even after so many years of independence, Indian couples still struggle to let go of outdated ideas and stereotypes. Couples should simply be required to submit the proper documentation and an affidavit explaining their decision to wed outside of their caste under the Special Marriage Act. Radical marriage officials’ harassment only hinders society’s transition to an egalitarian state. Since two persons choosing to remain together does not interest any third party, Section 7 of the Act, which asks the public to voice disagreement, should be fully eliminated. Their right to privacy has been flagrantly violated in this case. Such problematic clauses in a relatively revolutionary Act cannot be adopted by a nation that aspires to a Uniform Civil Code.

The “golden triangle” of the Indian Constitution has been referred to as Articles 14, 19, and 21. Certain SMA, 1954 sections are in violation of this golden triangle, and it is time for the courts and the legislature to declare these articles illegal, reform them, and repeal the current antiquated provisions. The Act contradicts itself in several ways. The judgment of the Allahabad High Court mentioned above offers hope for ending extra-constitutional practices and serves as an example to be set for the entire country. The decision of the Allahabad High Court serves as a guiding light and sets an exemplary example for all other courts in the country. It is important for the society to change its views on interfaith marriages and more important is to get rid of all provisions of the Act that violate the constitutional rights of citizens of the country thereby making the act constitutional and  safe for couples involved in an interfaith and relationship to get married with no fear of repercussions. The law must be implemented at the grassroots level and the Act must be updated to reflect new needs. The government must ensure that the law is implemented to the fullest extent possible in order to make it a completely constitutional act because mere legislation is insufficient.

REFERENCES:-

1. Rakesh Beherat, Special Marriage Act, 1954: Too special to be constitutional, SCC BLOG, 2021.

2. Rohit Ghosh, Special Marriage Act: The interpretation and constitutional perspective, The Leaflet, 2018

3. Jagati Chandra, Explained | Challenging the Special Marriage Act, 1954, the Hindu, 2022.

4. Surbhi Karwa, Allahabad HC Order on Special Marriage Act Is Progressive. But Is It Enough? , The Wire, 2021

By- Ayush Hoonka student of School of Law, CHRIST (Deemed to be University)

A virtual Private Network (VPN) is a secure and encrypted connection between a device and a network. This safe and encrypted connection helps to ensure that the data between the device and the internet is transferred safely. It acts as a secure connection between a device and a network to prevent any person from getting unauthorised access to data. A VPN hides your Internet Protocol (“IP”) address by letting the web redirect the data through a secured server which the VPN host creates. This means that when a VPN is used while surfing the internet, the host server acts as the source of the data and the Internet Service Provider (“ISP”) cannot see which websites are visited or the data exchanged on the internet. Therefore, to put it simply, a VPN disguises the information being exchanged on the internet by making it secure and protecting it from any unauthorised external access.

The Bombay High Court has defined a Virtual Private Network in the case of Hindustan Unilever Ltd. v Endurance Domains Technology LLP and Others.[1]The court has stated thata VPN is a Virtual Private Network. A VPN user connects securely to another network via the internet, getting around geographic limitations and hiding browsing activity, among other things. In its most basic form, a VPN links an internet-capable device to a distant server and enables the VPN user to use the internet connection of that server.With the help of these VPNs, a person can bypass region restrictions and access content not available to them.

These VPNs not only bypass the region-specific restrictions but also mask the person’s IP address to make them anonymous. These VPNs route the traffic to a different server in another part of the world, helping the persons bypass geo-blocks A VPN is used when the internet is weak and not secure. It helps to secure the connection and not protect the person from unwanted hackers, which find public wi-fi as a convenient tool to target people data.

The new directives from India’s Computer Emergency Response Team (CERT-in) dated 28th April 2022 have asked the VPN providers to access users’ data forfive years. The directive states that the companies have to log the following information with them –

Validated names of subscribers/customers hiring the services

Length of service, including dates

IP addresses assigned to or used by the person

The IP address, time and date, and email address used at the

enrollment/onboarding

The reason for using services

Verified phone and address information

The ownership structure of the members or clients using the products

The sole purpose of using a VPN is to protect your data and remain anonymous in the internet space. Mandating data collection goes totally against what a VPN is used for. As a result of this directive, major companies like NordVPN ExpressVPNandSurfsharkhave chosen to shut down entirely and relocate all physical servers from India.Netizens over the internet are displeased with the move. They have even stated that“India is following the path of Russia”as it wants to breach the privacy of its citizens and monitor their online activities.

However, when the Internet Protocol address of a person is logged in, it can also be used as a tool to get to know about the browsing history of that person. Not only this, a mere lookup of an IP address on a website like “whatismyipaddress”can reveal information like the hostname, the ISP (Internet Service Provider), continent, country, state or region, city, and postcode. Therefore, to hide a person’s identity, a VPN is used as it grants an extra layer of protection to the data transmitted and alters a person’s location so that the actual location is not visible.

The Hon’ble Supreme Court of India, in the case ofJustice K.S. Puttaswamy (Retd.) &Anr v. Union of India &Ors.,[2]has mentioned that the right to privacy is a fundamental right, and any restriction on this right must be lawful, necessary and proportionate. These directions do not differentiate between a bona fide user of a VPN and a person using it for illegal purposes and consider that all use it for unlawful activities. Further, these directions go against the right to privacy of a citizen and what a VPN stands for. SnTHostings, a VPN provider, has also urged the MeitY and CERT-In to reconsider these directionsas storing its users’ data goes against an individual’s right to privacy.

Due to a lot of requests from the companies, the Government of India has decided to push the effective date of these directives for a period ofthree months. The rules specifically ask the user information to be stored, which includes the subscriber’s name, email address, and contact number. One of the companies which provide VPNs named Pure VPN hasstated that ‘We operate under a stringent no-log policy. Even though we do not gather personally identifiable data from our users, we are unable to run physical servers in a nation where doing so would require us to alter our business practices and jeopardies the privacy and security of our customers.’

In conclusion, the government’s new directives clearly violate an individual’s right to privacy. The sole use of the VPN is to get anonymity so that the user and his activities are not tracked on the internet. Major companies have also left India because of these directives of the government. Stating that this move aims to fight cyber crimes is simply saying that all knives must be banned as they can be used as murder weapons. The government should not curb a right in the name of national security and look for an alternative way to solve this issue.

https://symblawg.wordpress.com/blog/page/3/#_ftnref1

Refrences-

[1]Hindustan Unilever Ltd. v Endurance Domains Technology LLP and Others, 2020 SCC OnLine Bom 80

[2]Justice K.S. Puttaswamy (Retd.) &Anr v. Union of India &Ors

By- Jyoti Rani & Vikram Choudhary students of NUSRL, Ranchi

INTRODUCTION

Since taking someone’s life is a terrible crime and cannot be undone, the death penalty is regarded as the cruellest and most severe form of punishment. The death penalty can only be imposed if the crime was very terrible, though it is occasionally commuted to life in prison. However, when considering the fundamental human rights of criminals, this form of punishment is always contested because receiving the death penalty does not revoke one’s right to life and human dignity. Given the severity of the punishment, it is crucial to avoid procedural flaws like needless delay, hasty judgments, and preventing the convict from fully exhausting all available legal remedies, which results in an unfair trial.

The case of Shabnam v. UOI & Anrs.[1]is extremely significant because, if the execution goes forward, Shabnam will be the first woman to be hanged to death in an independent India. It also serves as a reminder of the value of principles of fair procedure and the right to legal recourse that a convict has under the Indian Constitution. The case also emphasises the range of potential remedies in light of the nature of the offence.

Facts

Eight members of Shabnam’s family were brutally murdered on the night of April 14, 2008, and she was the only one to survive. Shabnam claimed that unknown intruders broke into the house a

at night, and she was sleeping on the terrace when the terrible killing spree started. Further investigation revealed that Shabnam and Saleem, who were both later sent to Moradabad jail, were co-accused of drugging the seven members and committing the heinous crime of murder.

They were found guilty of murder on July 15, 2010, and district judge Hon. SAA Hussaini of the Amroha Session Court sentenced them to death. The Allahabad High Court later upheld their death sentence in 2013. The inmates appealed to the Supreme Court in 2015, but it was rejected, upholding their conviction and death sentence.

Following the ruling of the Supreme Court, the learned Session Judge issued a death warrant within six days, directing that the execution take place as soon as feasible. In response, the defendants and the NLUD death penalty litigation clinic filed a writ petition[2], arguing that carrying out the death sentence within six days was unlawful and in violation of Article 21.

Issue

The question presented in the current Writ Petition was whether the death warrant that was issued within six days of the appeal being rejected was unlawful and stands in contravention to Article 21 of the Indian Constitution. Also, the convicts had not used all of their legal and administrative options; they still had some left. The right to petition for mercy before the president of India and Governor of Uttar Pradesh, as well as the remedy available for filing a review petition with the Supreme Court, were preserved.

Proceeding and Reasoning

The knowledgeable ASG, Ms. Pinky Anand, represented the Union of India, while Ms. Pragati Neekhra spoke for the State of UP. Mr. A. Grover served as the petitioner’s principal counsel. The learned (hereinafter referred as Ld.) ASG, Ms. Pinky Anand, argued that the Indian government’s Ministry of Home Affairs has released guidelines outlining the process for applications for clemency in situations where the death penalty has been imposed. She noted that the aforementioned instructions place certain responsibilities on Superintendent (hereinafter referred as Supt.) of jail with relation to requests made for compassion made by prisoners serving death sentences.

The jail’s superintendent must notify the offender that any appeal for mercy he intends to submit must be in writing. The Ld. attorney representing State of Uttar Pradesh well informed this court that after the Superintendent of Jail received the death warrants dated May 21, 2015 by the Ld. Sessions Judge, the Supt. of Jail returned them to the Ld. Sessions Judge, highlighting the faults in the warrants as time and date concerning the death sentence’s execution were not written on them.[3]

The petitioner’s senior counsel, Mr. Anand Grover, stated that the Ministry of Home Affairs’ instructions would not be sufficient. He continued by citing the case PUDR vs. Union of India & Ors.,[4]which laid out the steps and regulations to be taken before the execution of the death penalty. The rules are listed below.

The foremost essential guideline to be observed includes that the principle of natural justice and provisions of Section 413[5]& Section 414[6] of the CrPC, 1973 should be read in conjunction. Also, it is pertinent that prior notice should be provided to the convict before any death warrant is issued by any Sessions Court to enable him for consultation with the advocate.

It is mandatory that the death warrant issued and singed by the Session Court should specify date and time for execution.

A relevant period of time gap must be provided between the order and execution warrant, so that it enables a convict to get enough time to pursue his/her legal remedies available against the warrant.

It is important enough that the copy of the execution warrant is provided to the convict without any fail.

Lastly, if convict is found to be not that well-to-do, legal aid for his assistance should be made available. These procedures must be fulfilled in order suffice the purpose enshrined under Article 21 of the Constitution of India.

Petitioner’s lawyer also cited theShatrughan Chauhan v. Union of India & Ors [7]. case, which established a number of rules for cases involving the death penalty. The defence counsel argued that the inmates had not used up all of their remaining legal and administrative options. They might have filed Review Petition (under Article 137 of the Indian Constitution) to have the order reviewed even after the Apex Court declined to affirm the imposition of the death punishment. The learned Sessions Judge neglected to take into account the Review Petition filing deadline of 30 days, which exists.

While adjudicating Mohd. Arif @Ashfaq v. Registrar, Supreme Court of India & Ors. , the constitution bench decided that, in contrast to other review petitions, the cases involving death sentences would be heard in open court and allow the review petitioner to make oral arguments. Also, there should be at least three judicial minds hearing the case. Additionally, the court highlighted the requirement of an oral hearing in such review petition while deciding Bachan Singh v. State of Punjab [8]and how it becomes a crucial component of “reasonable procedure.”  Besides, different jurists with diverse perspectives can weigh various aggravating and mitigating circumstances to determine whether or not to impose the death penalty in a particular case after taking into account all pertinent information. Justice Holme’s observation- “the life of the law is not logic; it is experience” is applicable in this situation.

The counsel argued that on top of  having the right to file a review petition, inmates also have the right to plea the same before the President of India & the governor of Uttar Pradesh. The Indian Constitution’s Articles 72 and 161 discuss the President’s and the Governor’s respective constitutional right to pardon. The death row inmates have access to this fundamental remedy. The counsel used V. Sriharan at Murugan v. Union of India & Ors.[9]as support. They have the

absolute right to use this remedy, and it cannot be taken away by carrying out the death penalty before they have had a chance to use it. The state must wait for a reasonable amount of time even after failure of convict in review petition.

Moreover, Article 21 of the Constitution forbids taking away someone’s life or freedom unless it follows the legal process. It has been decided by the courts after much deliberation that the legal process must follow “due procedure.” The legal process has been followed up to this point when a defendant is found guilty of a crime, sentenced to death, and the same sentence is being upheld by the highest court. But there are still more procedural safeguards to be explored, such as court review and mercy pleas. The phrase “process established by law” found in Article 21 would also apply here. Consequently, until the period for presenting the review petition and thereafter the admissible time for filing the mercy petition has not passed issuing death warrants would contravene the purpose of Article 21.

The right to life enshrined under the Indian Constitution, also addresses the lawful right to human dignity. Since we acknowledge that Article 21 includes a provision preserving human dignity, this provision continues to apply even after a death sentence has been confirmed and will do so until the offender reaches his or her end. The convict must therefore be treated with human dignity throughout the entire process, from the highest court’s confirmation regarding the death sentence until executing the punishment, subject to such extent that is acceptable and permitted by law. Given that the death penalty is lawfully permissible in India, it should always be administered with respect.

Judgement

The A.K. Sikri & Uday Umesh Lalit vacation bench unanimously agreed to revoke the death warrants that the learned Sessions Judge hastily signed without adhering to the required 30-day window for filing the Review Petition. The Hon. Apex court also took into account the fact that the prisoners had not used up all of their options left, and directed that the process for carrying out the death sentence, specifically the five steps, be followed in accordance with the steps taken from the case of PUDR v. Union of India & Ors.[10], which was decided by the Hon. High Court of Allahabad.

As per the Apex court’s believes, the process used in the PUDR is in compliance with the purpose of Article 21 of Indian Constitution as inmates on death row also have a right to life. The justices determined that Art. 21 requires a brief oral hearing at the review stage in every case involving a death sentence.

The Hon’ble Court further holds that condemned person has a “right to dignity” thus the execution such rare sentence cannot be done arbitrarily, hastily, or secretive way without first enabling the guilty party to use up all available legal options.

Further Developments in the case

Following the writ petition, the Amroha death convicts submitted a mercy petition, which the then-president Pranab Mukherjee rejected. Subsequently, the convicts’ attorneys filed a review petition on the grounds that both of the convicts had demonstrated the possibility of reform through good behavior. The attorneys argued that the court should look beyond the crime, as it must punish the crime and not the person, and determine whether the criminal has the potential for The three-judge panel, which included Chief Justice S.A. Bobde, Justice SA Nazeer, and Sanjiv Khanna, heard the case in open court. When the convicts’ attorney highlighted the issue of good behaviour, the bench focused on their act of killing the newborn, saying that the real deeds should not be neglected in extending sympathy to the prisoners. Even if every offender may have a decent heart, the court must also consider the crime that was committed. Serving justice to society is the court’s main goal. The pre-planned murder amply demonstrates the criminal intent of the prisoner. The death penalty was upheld by the court, who showed no mercy and carried out justice for the seven lives that were lost. She was originally detained in Rampur prison, but after male prison guards posted pictures of her online, she was moved there for security reasons. She will now be hanged in Mathura prison. Saleem, on the other hand, is currently detained at Agra Jail, but despite the ruling, Shabnam Ali’s attorney, Shreya Rastogi, views her as a victim of patriarchal culture and plans to file a curative plea on her behalf.

Comment

As a conclusion of the assessment, it can be established that the Sessions Court of Amroha ought to have given the death row inmates sufficient time to use their legal and administrative remedies. The 21 May 2015 death warrant fell short of upholding a fair, equitable, and reasonable procedure. Six days after the court dismissed the appeal, a warrant was issued for the death penalty. The inmates didn’t even use up all of their options for a judicial review of the order by filing a Review Petition. Additionally, they had the legal option of submitting a Mercy Petition to India’s Governor and President. The Hon. Supreme Court thus annulled the order. Furthermore, it mandated presence of at least three judges to hear cases involving the death penalty.

When it comes time to decide whether to execute the defendant or not, they should use their best judgement while taking into account all pertinent considerations. This demonstrates the gravity that should be given to sentences that include the death penalty because it is an irreversible sentence. When a death sentence is carried out, the convict’s life is taken away. If it turns out that the sentence was unjustified later, it would be of no use because the victim’s life cannot be restored.

Limited oral arguments are also permitted at the Hon. Supreme Court’s open hearing on the Review Petition. This guarantees clear, just, and fair proceedings.

The learned Sessions Judge’s hurried decision to sign the death warrant is evidence of the retributive, as opposed to the just, attitude of punishment. The concept of “blood for blood” retribution is meaningless and hollow. The accused must be given the opportunity to use all of his remedies.

They ought to have the righteous option to file a Review Petition and, if that is being denied, then Mercy Petition. The opportunity is the key component, with the Court, the President, or the Governor having complete power to accept or reject the petition.

Moreover Article 21 extends to the lawful right to file a plea for mercy and a review petition is a constitutional right rather than a mere formality. If a convict files a petition for mercy, the state must wait a reasonable amount of time even if the petitioner is unsuccessful. Otherwise, Emperor Ashoka’s well-known maxim that “state should not punish with vengeance” would be broken. This emphasises how crucial and serious the right to life is, secured by the Indian Constitution. [11]

“The Supreme Court has defined and given a meaningful connotation to the fundamental rights by interpreting the  Right to Life as the Right to live with Dignity.”  In the minds of the creators and the Supreme Court, human dignity has been both front and centre [12]. In the cases of D.K. Basu v. State of West Bengal [13]and Sunil Batra v. Delhi Administration, [14]the significance of prisoners’ rights to human dignity has been very clearly demonstrated. Therefore, a convict must be treated with human dignity throughout the process of confirming the death penalty until execution, and depriving the convict of that dignity violates his or her right to life.

When it comes to handing out severe punishments like the death penalty to women, there shouldn’t be any gender bias, as evidenced by the fact that, of the 373 prisoners interviewed for Project 39A [15], only 12 female inmates received the death penalty, compared to 361 male inmates. The stereotypes of gender roles in society are taken into consideration when determining the punishment for women. Women are typically not expected to commit heinous crimes as it is unusual behaviour[1][16] according to the stereotypical society which tags them as being weak & more compassionate by nature, making it difficult to punish a woman of harsher punishment like the death penalty.

The argument made by Shabnam’s attorney that her life should be spared because of her 12-year-old son is insufficient because the heinous act of taking away seven innocent lives, including a 10-month-old infant, reflects the convicts’ callous and merciless nature, the remedial petition should be allowed for the sake of a fair procedure because a convict cannot be hanged without first exhausting all legal remedies.

Sources-

[1]2015 SCC OnLine SC 484

[2]Shabnam v. Union of India (Writ Petition (Crim.) No. 88 of 2015) clubbed with Writ Petition (Crim.) No. 89 of 2015

[3]AIR 1473

[4]AIR 1982 SC 1473

[5]The Code of Criminal Procedure, 1973, s. 413

[6]The Code of Criminal Procedure, 1973, s.414

[7](2014) 3 SCC 1

[8]AIR 1980 SC 898

[9](2014) 4 SCC 242

[10]1982 AIR 1473

[11]Shabnam v. Union of India, 2015 SCC OnLine SC 484

[12]Justice A.K Sikri, “Human dignity as a constitutional value” , 2016, p..no.9/27, blo.hawaiii.edu.

[13](1997) 1 SCC 416

[14](1980) 3 SCC 488

[15]Sahil Malhotra, “Analysis of female offending in India” (Project 39A2016) accessed August 29, 2022

[16]Satni Bai v. State of Madhya Pradesh,[2010] INSC 74 ,Lichhamadevi v. State of Rajasthan, AIR 1988 SC 1785.

By- Saniya Khanna student of Symbiosis Law School, NOIDA & Shruti Yadav student of Dr. Ram Manohar Lohia National Law University Lucknow

INTRODUCTION

From time to time, various unconventional markssuch as voice, smell, and colour have been recognised or are in the process of being recognised as trademarks. Inspired by the discussion, we shall discuss the possibility of using one’s face as a trademark in this article. 

In this article, firstly, we shall explain the meaning of getting a face trademarked and how it differs from getting a copyright. We shall then discuss its legality within Intellectual Property Laws in India and the European Union. Lastly, we shall elaborate upon the unique challenges the idea currently faces. 

FACEMARKS: HOW ARE THEY DIFFERENT?

A facemark is the culmination of faces and trademarks; it suggests the idea of getting a face trademarked. It allows people’s image to become a symbol of their brand for their business endeavours. It is prevalent among celebrities to get their physical attributes protected under different types of rights granted by the intellectual property regime—such as their face or facial features and their voice, among other attributes. One might infer that the rationale behind availing such protection is that their face/voice/physical attributes are their brand which possesses a brand value that provides a means to earn their livelihood through royalties and licenses.

However, in reality, personality right is often granted in the form of copyright rather than a trademark. The difference is that while copyrights allow one to control the distribution of their image, facemarks allow their image to become their brand. While there have been instances of faces being used for marketing a brand, like Colonel Sanders for KFC, the instances of it happening as facemarks is still quite unusual, if not rare.

LEGAL REGIME REGARDING FACE TRADEMARKS: EU & INDIA

EU Regime

The EU Trademark Act has broad similarities with the Indian Trademark Act, i.e., primarily, both the European and the Indian definitions of a trademark are similar as a trademark refers to a sign or symbol in any shape or form which can be graphically represented, which aids in distinguishing a set of goods and services from each other. Secondly, in both jurisdictions, there is a ‘lack of distinctiveness’ as an absolute ground for the refusal of such trademark registration.

In 2017, a Dutch model Rozanne Verduin filed an application for trademarking her face, which was initially rejected on the grounds of lack of distinct character in respect of the services. However, when she appealed against the decision, it was later overruled, granting legality to face as trademarks.

The European Union Intellectual Property Office (EUIPO) rejected it on the ground that a photograph of a person’s face lacks a unique element or a striking feature, due to which the sign does have sufficient distinctiveness to enable protection as a trademark. The EUIPO marks’ uniqueness’ and ‘distinctiveness’ as two different concepts. 

In 2021 the EUIPO’s Board of Appeal overruled the 2017 judgment as it perceived the distinctiveness from a prudent layman’s view. It held that although unique or original features are not required for the distinctive character of a mark, the sign in question must enable the public to distinguish the services in question from those of other parties: “The mere fact that a photograph is a faithful representation of what is depicted does not mean that this representation cannot be understood as a trademark.”

Thereby, the rationale of the court of Appeal reflects that the test of uniqueness is to be perceived from the consumer’s ability to distinguish the product and /or service. As a result, the EUIPO Board further held that every person’s face has unique external features which help serve as a distinction from other people. 

ii. Indian Regime 

In the case of India, such a question has not arisen before the Indian Courts so far, and therefore the answer remains largely unanswered. However, given the similarity between the EU and Indian laws, the outcome should be along the lines of the above-stated judgement. 

However, be it India or the EU, there are particular unique challenges faced by an individual while trademarking their face, which are discussed below.

UNIQUE CHALLENGES

Though the recent judgment seeks to pave the path for the adoption of an unconventional trademark, i.e., face trademark yet, there are hurdles to overcome. The primary challenges identified by the authors are three: the existence of face doubles, the resemblance with another individual and the dynamism of the human body, i.e., changing face structure.

Existence of face doubles

While deciding on the validity of face as a trademark, the aforesaid judgement of 2021 sought to answer particular challenges that arise in trademarking face, such as – questions on the uniqueness of a face and the possibility of the existence of other similar faces or ‘doubles’ for that matter. It held thatin the case of the existence of face doubles, each of them will be considered a unique representation.

ii.Face resembling another individual’s

Another question that arises is, what if one’s likeness is similar to another living entity’s? The answer to such a question can be drawn from the American jurisprudence on trademark. In America, if a trademark, which may be a name, portrait, and/or signature, resembles a particular living individual, then the USPTO must be provided with the information regarding whether such name, portrait and/or signature identifies a particular living person. 

In case of a positive resemblance, one must provide both, first, a statement that the mark in question identifies a living individual whose consent is of record, and second, a written consent personally signed by the individual named or shown in the mark. This helps in protecting an individual’s rights to privacy and publicity to control the commercial use of his or her identity. 

However, in the Indian context, no such law prima facie exists. Herein, the individual who looks similar to a portrait trademark can then only seek remedy under ‘portrait rights’, which have been read under the ambit of the right to privacy and not the right to attain intellectual property. 

iii.Changing nature of the face

The human face is not static and changes with time. What happens when years down the line, a person wants to use their face as a trademark for varied goods and/or services, keeping in mind that the face is likely to change with time?

According to the prevailing EU laws, if an individual registers a portrait as a trademark, the same rules would apply to that registration as for wordmarks and logos, among others. If the mark is used for goods and services that are not similar, then the owner of the portrait mark would not be able to act against the use it has proposed. 

Furthermore, when the appearance of a person has changed such that the differences cannot be termed as minor differences, the use of the mark will not meet the threshold so established to use the trademark, and the registration is vulnerable to cancellation. For instance, if one registers, such as the case of the famous Parle-G boy seen on its historic packaging, the portrait of a face when they were young, the person would not be then able to rely on the registration when he or she has grown-up, and the body including the face has matured due to the stark differences in the very characteristics which led to the granting of the trademark. 

CONCLUSION

Based on the above discussion, globally, Intellectual Property Laws are evolving to

include more unconventional trademarks such as facemarks. However, within the Indian regime, the unconventional trademarks do not yet have a well-defined legislative mandate. Therefore, in the booming age of e-commerce, there exists a need to streamline the concept of face trademarks to mainstream trademarks and have a proper legislative mandate for ensuring smooth regulation of the same. 

By- Akash Yogendra Singh student of New Law College, Bharti Vidyapeeth (Deemed to be University), Pune

Dr. B.R. Ambedkar in his last speech in the Constituent assembly said “In politics we will have equality and in social and economic life we will have inequality” he advised the successive governments to quickly take measures for social quality among the people of India. To this effect, the President of India passed “The Constitution (Scheduled Caste) order of 1950” in exercise of the powers vested in him under article 341 of the Constitution. The aim was to protect fundamental rights and freedoms of Dalits, but unfortunately it restricted fundamental rights of a section of Dalits (the converted Dalits).

This order provides the Scheduled Caste community with many benefits Including reservation in government jobs and educational institutions. But paragraph 3 of the order limits it only to Hindu Dalits. The order was subsequently amended to include Sikh Dalits in 1956 after the recommendation of Kaka Kalekar panel in 1955. The order was further amended in 1990 to include Buddhist Dalits after the recommendation of high powered panel in 1983. But the order was never amended to include Dalits from Muslim and Christian faith. The reason given by the Central Government was that the basis of the order is to prohibit Untouchability, which is a concept prevalent only in Hindu society. However the government has not presented any numerical or empirical data of any committee or commission to support it’s argument. The Presidential order of 1951 and Central government’s argument presumes that the suffering of a Dalit ends after they convert to Islam or Christianity.

Violative of Fundamental rights guaranteed under the Constitution

The Constitution (Scheduled Caste) order, 1950 is violative of the below Constitutional provisions

Article 25(1) provides freedom of conscience and right to profess, practice and propagate any religion. This order forces a section of Indian society to choose between religious rights on one hand and protection benefits under the law on the other hand. This clearly has chilling effect on Article 25 (1), as It discourages the Hindu Dalits to convert to Muslim or Christian faith.

Article 17 abolishes Untouchability, to enforce this right the government passed the Presidential order of 1950 and SC/ST Act,1989. But it ignores the fact that Untouchability is still practiced against the converted Dalits. This violates the mandate of article 17 to completely abolish Untouchability.

Article 14 provides for equality before law and equal protection of law to every person. Reasonable classification is permissible with the sole objective of making unequals at par with equals. This order discriminates on religious basis by not providing SC benefits and protection to Dalits converted to Christianity or Islam faith.

Article 15 (1) prohibits discrimination on the religious basis among others, the ground on which this order discriminates is religious. The defence that the Untouchability is practiced only Hindus, Sikhs, Buddhists is flawed as it is not based on any research or numerical data or findings of a Commission or a Committee.

Recommendations of Committees and Commission

There are evidences of “Untouchability” practiced against Dalits converted to Christianity or Muslim faith. According to a data published in 2004-2005, 47% of Dalit Muslims are below BPL(Below poverty line) In Urban areas. Moreover 40% of Muslims Dalits are below BPL as against 30% Hindu Dalits In rural areas.

The National Commission setup to review the working of the constitution In 2002 remarked “ In view of the fact that in some parts of the country, particularly In Southern India, converts to Christianity from specific Sc’s are subjected to crimes and atrocities as their exact Hindu counterparts are(thus difference of religious makes no difference). The Commission recommend that the SC/ST Act of 1989 be amended to include “converts to Christianity and Muslim faith from S.C” to protect them from the atrocities. But the act was never amended.

National Commission for religious and linguistic minorities, also called Ranganath Mishra Commission constituted in 2007 to look into their issues “to delink SC/ST status from religion” and make it religiously neutral.

Mandal Commission too recommended to make the Presidential order of 1950 and SC/ST Act, 1989 religiously neutral.

Since, olden days Dalits were suppressed and not allowed to exercise, their discretions. The Constitution of India gave them the rights under part 3, but it was unfortunately undermined by the Presidential order of 1950 and SC/ST Act of 1989. This order puts Dalits in dilemma to pay a heavy price if they choose to exercise the most basic “freedom of conscience”. The state should never force any person to compromise with their religious beliefs. It is unjust, unfair, unreasonable to make the vulnerable community (Dalits) choose between their fundamental rights and the protectoral benefits under SC/ST Act,1989.

SC status linked to practice of “Untouchability” is not supported by facts, empirical data or any Commission’s report, thus to say that the practice is limited only to Hindus is a wrong narrative. Supreme court as the custodian of fundamental rights and the highest court to Interpret the Constitution, must Intervene and examine the Constitutional validity of paragraph 3 of Presidential order of 1950 and SC/ST Act, 1989 In general interest of Dalits. Paragraph 3 of the order must be struck down by the Supreme court as unconstitutional and violative of fundamental rights. The benefits of the SC status must be religiously neutral to protect the fundamental rights of every Dalit.

By- Navya Bassi student of National Law University, Odisha

INTRODUCTION

INTRODUCTION

Metaverse is a virtual world created for users to interact and socialise on a platform beyond reality. It is facilitated by the use of headsets. It is seen as an extension of the internet as we know it today: becoming a single immersive space where people can interact in a way they cannot in the physical world. This is facilitated by instruments like virtual reality headsets and augmented reality glasses.

There are various views on how the metaverse is going to shape the future. There are people who believe that it can help introverts to come out of their shells and interact without the fear of being judged, while on the other hand some people also believe that it can be dangerous as it exposes people without much safety.

This paper analyses the three major issues associated with the metaverse- Intellectual Property, Data Privacy, and Human Rights. The concern under Intellectual Property is whether the existing rules on it can be duplicated into virtual reality. The original creators of the material must have the exclusive right to use and reproduce their content themselves once it comes out in the public domain.

The issue of data privacy in the metaverse cannot be tackled with a few data privacy regimes as it is universal and has a global reach. It offers users universal features regardless of their place of residence. So, it is less of a government concern and depends more on the creators of this space.

Human rights are the basic standard of human behaviour that exists simply by nature of being human beings. It has to be ensured that these are in any way not violated in a virtual space.

INTELLECTUAL PROPERTY RIGHTS

Intellectual Property refers to the rights of a person over a tangible object which is a result of his own efforts. They are granted to give him protection for a certain period of time. While the owner has the right to protect his innovation, others have a corollary duty to not infringe. [i]The most prominent types of Intellectual Property rights granted are- Copyright, Trademarks, Geographical Indicators, and Patents.

Copyright is the exclusive legal right of a person to print or reproduce her original work. It protects the idea behind the work of the author. The idea in itself, however, is not protected. Rather, protection is granted to the expression of an idea. This is because ideas are universally present, but their interpretation is subjective to an individual.

In the virtual world, gaming companies make dominant use of avatars that are created to change or develop themselves online. There is increasing use of technology in this domain supplemented with a growing number of users.[ii]In the virtual world, the current interpretation of copyright is not enough as much creativity there is derivative.

Metaverse was then launched to tailor the experience of the user to control the virtual world as per their whims and desires. This easier “bend“ of the characters makes it a unique case for copyright. Copyright currently exceeds to only two subjects- Original creation and creativity. The first consideration, i.e., originality, is often difficult to determine. For instance, a game programmer created a game in which the characters can be rearranged in different combinations but the player himself rearranges the character in such a way that it makes a unique resultant creation. So, ultimately where does the origin of the characters lie? The player, or the game programmer?

Another problem is the Avatars that are created for this platform. Currently, most providers of online games require the players to agree on the ownership of the providers on all copyrightable expressions created for the game, this automatically means a blanket right on all avatars. However, this one shoe fits all approach is difficult to apply in the case of Metaverse as each Meta- platform may have its own identity system. Further, even the investors might not be much interested if there is no “free movement of avatars.”

As the Metaverse creates a separate world altogether, to mitigate the possibility of infringement, one solution can be to incorporate special copyright filters in the software. However, doing so requires the consent of the developers who might not be willing to get their platform regulated.

Even the U.S. Supreme Court held in Sony Corp. of Am. v. Univ. City Studios, Inc.[iii]that the copyright law is subjected to technology that keeps on developing. However, it went on to explain that technology is remarkable only when “its introduction into the mainstream requires a systemic change to the law or legal institutions in order to reproduce, or if necessary, displace, an existing balance of values.”

So, there has to be a balance of two competing interests- Granting a limited monopoly to the creators for their work, while giving access to the work to the public so that they can benefit from the ideas included in the copyrighted work.

DATA PRIVACY

The metaverse has its obvious value but it still has its privacy concerns. There is an apparent relationship that the users share with their avatars that becomes an impersonal one. However, at the other end ultimately that information is being fed to others who may or may not have a malicious intention. Further, to create an avatar resembling an individual, details need to be collected pertaining to physiological, biometric, social, and physical. These are personal and fundamental to an individual’s identity. If it is leaked, it can endanger the user’s privacy.

The rationale behind creating a metaverse was to enable people to socially connect with each other. Communication inevitably means sharing both casual and sensitive information that non-communicators must not be given access to [iv]

Another conceivable problem is the influx of users on this platform. The population coming to the platform is not homogeneous and thus has a varied understanding of culture, religion, sex, etc. These differences can easily spring up misunderstandings among the users, leading to threats, insults, or even harassment in the metaverse.

Another pertinent problem that exists even in the real world is that of hacking. It basically involves the exploitation of weaknesses in a computer network to gain unauthorized access to one’s personal data. Metaverse rests on the premise of inputs and outputs consisting of sensors and screens. This entire system is not very difficult to hack into. If entry points are exploited in the metaverse, they can easily permeate the real world as well, invading the private space of the users.

The information collected from the user can easily be stored to monitor the behaviour of users. One solution to this can be creating a clone or a secondary avatar through which users can hide their actions on the platform.[v]It shields the environment by obfuscating the location of the user, beliefs, patterns, activities, and/or other interventions by creating clones which have similar appearances to that of the real avatar. This can prevent any inference of user behavioural information, provided that the limit to this anonymity must be defined, otherwise, this can easily be misused by people to cover their tracks after committing any offence.

More such solutions can be explored to make the platform less confusing for the users as well as their avatars. This can be done by providing the user with a private space where there is no scope for surveillance. This space should be built exclusively for the user in such a way that a part of it may be confined to the user only.[vi] For instance, purchasing a personal item or service

virtually. This distinction that the current experience is taking place in the form of a private copy instead of a widely accessible virtual world should be made clear to the user.

HUMAN RIGHTS

As technology advances, membership in the virtual world keeps on increasing. Virtual sex is also a concept in the second world as it gives liberty to people to explore themselves in a way that might be restricted in the real world. The cherry on the cake is that the entire process can be consequence-free. But the prominent question here is- To what extent can people demarcate their virtual actions before they permeate into the real world? In any case, there are certain actions that will remain intolerable even in the virtual world.

For instance, preventing minors from accessing age-inappropriate content on this platform is generally a concern for the government, even if it has to regulate this form of communication. Further, other such laws are likely to be devised to curtail practices such as child pornography.[vii]

Further, to secure child rights, it is also crucial to prepare for the manifestations of child pornography as well. Take for instance the designing of avatars in such a way that it clearly portrays children having sexual intercourse. The conflict here is whether a penalty should be imposed on the creator of the avatar, or on the platform on which the offence took place.

Another human rights issue in the virtual world can be that of property. The virtual purchase and sale of a property can be profitable in the real world as well. This can be done through auctions or by paying a certain amount of money to acquire a property.[viii] This hoarding of sorts can be harmful in a way when people do not remain mindful of the real-virtual divide anymore. One solution to this can be time-limited subscriptions to virtual worlds. This can ensure that the real owner of the property is not subjected to any unnecessary hassle.

All these concerns are legitimate and need to be addressed. However, it has to be ensured that any menace is not curtailed at the expense of creativity and free expression. There has to be a balance between the freedom of artistic expression and regulations.

CONCLUSION

The users of the virtual world are demanding equal or even more rights than those granted in reality. The reason is quite simple; this platform acts as an escape for these users and being subjected to similar rules and regulations sounds tedious to them. However, what must be kept in mind is that at the end of the day, they are still an integral part of the real world communicating and carrying out their daily chores.

The approach should be liberal to the extent that the creativity of users and avatar creators alike is not hampered. To address concerns of security and privacy in the metaverse, allowing users to choose their own personalized options to tackle this problem can go a long way in building trust and a wide user- base.

The backbone of this entire idea of the metaverse is avatars. These are designed in a way to move and interact freely leading to large anonymous participation. Measures such as a private block or cloning of one’s avatar can provide people with a safe space on this platform.

The concern for human rights violations is also springing up with the rise in technology. The issue of artistic expression has to be tackled alongside the need to safeguard property rights, child rights, and other such rights of the people. Much research and policy framework still remains before the metaverse becomes the much-awaited reality for people.

Sources-

[i]Elizabeth Verkey, Intellectual Property Law and Practice (1st edn, Eastern Book Company 2015)

[ii]Mathew R. Farley, ‘Making Virtual Copyright Work’ [2010] 41 Golden Gate UL Rev 1

[iii]Sony Corp. of Am. v. Univ. City Studios, Inc [1984] 464 U.S. 417

[iv]Ruoyu Zhao, Yushu Zhang, Youwen Zhu & Ors, ‘Metaverse: Security and Privacy Concerns’ (2010) 14(8) JOL https://arxiv.org/pdf/2203.03854.pdfaccessed 6 November 2022

[v]Carlos Bermejo Fernandez, ‘Life, the Metaverse, and Everything: An Overview of Privacy, Ethics, and Governance in Metaverse’ (2022) HKUST https://arxiv.org/pdf/2204.01480.pdfaccessed 6 November 2022

[vi]Ben Falchuk, Shoshana Loeb & Ralph Neff, ‘The Social Metaverse’ IEEE accessed 6 November 2022

[vii] Gabrielle Russell, ‘Pedophiles in Wonderland: Censoring the Sinful in Cyberspace’ [2008] 98 J Crim L & Criminology 1467

[viii]Peter Brown & Richard Raysman, ‘Property Rights in Cyberspace Games and other Novel Legal Issues in Virtual Property’ [2006] 2 Indian L J & Tech 87

By- Bhavya Verma student of JEMTEC School of Law, Greater Noida. (Affiliated to Guru Gobind Singh Indraprastha University)

Fashion is a form of an art curated by designers, executed by models and worn by consumers. With every renowned fashion brand, some sort of distinct and unique design is associated for which it is known, making them stand apart from others. The fashion industry is picking up force and fast growing which is unlikely to decline in the future.

Fashion in this contemporary world is not just restricted to apparels, but inclusive of innovative fabrics, smartwatches, custom-fit, footwear, cosmetics and etc. In this world of trend, designers or creators should think about the invention rights, product rights and data rights revolving around their creation.

The act of copying or counterfeiting is most prevalent in the fashion industry as everyone wants to look “lavish”, “voguish” or wants to look like a certain celebrity or an influencer but lack the ability to afford expensive brands.  The desire of the consumers to look rich at a lower price led to design piracy. Such as, in Chandni Chowk market of Delhi, people can find copies of infamous designers such as Manish Malhotra, Sabyasachi or Anita Dongre at a very low price. Such act of copying and counterfeiting of designs will hamper the life and economy of the brands.

With the expansion of the fashion industry worldwide, the IP system is becoming more systematic, broadening its awareness to newer challenges. Since the fashion industry consists of manufacturing, designing, presentation, advertising a fruit of an intellectual work, it can be protected under the Intellectual Property Laws. However, the question that arises is that are these laws enough to circumscribe the vast nature of fashion and its usage?

Susan Scafidi, a professor from the United States, for the very first time offered a course on fashion law in 2008. Since then, the subject of fashion law is being discussed by people all around the globe.

Laws Governing Fashion in India

Lockean idea, Utilitarian theory and Hegel’s ownership of property have been advocating for intellectual property rights since the ancient times.

There are numerous fashion foundations in India which govern fashion law. Such foundations are as follows:

Fashion Foundation of India (FFI)

Apparels Export Promotion Council (APEC)

Fashion Design Council of India (FDCI)

The Fashion Foundation of India, comprising of leading Indian designers, works at preventing duplication, counterfeiting and referencing.

There is no specific Act governing fashion law in idea, whereas it can encompassed under various other laws such as intellectual property laws, business, commercial and finance, international trade, technology and labour laws.

Under intellectual property laws, the fashion law is mostly regulated by the Copyrights Act of 1957, The Design Act of 2000, Trade Marks Act of 1999 and the Geographical Indications of Goods Act of 1999. The Copyrights Act, 1957 protects the illustrations. The Designs Act, 2000 protects the non-functional elements of a visually appealing illustration such as the lines, shapes, ornament, pattern and colour pattern. The Trade Marks Act, 1999 safeguards the brand name and the logo of the fashion houses and designers. Geographical Indication of Goods Act of 1999 is an excellent way of protecting local artists and culture of a particular area. For example, Jivya Mhare from Dahanu Village, Maharashtra got known for Warli painting.

Section 2(d) of the Design Act, 2000 defines ‘design’ as only the features of shape, pattern, configuration, ornament, or composition of lines and is judged solely by eyes. Design can either be applied to a two dimensional or three dimensional or both by an industrial process which can either be chemical or manual.

The Conundrum of the Two Laws

Section 15 of the Copyrights Act, 1957 is an important provision for the copyrightable work which can also be protected under the Designs Act, thus, protection under both the Acts cannot co-exist. The provision states that:

A design which is registered under the Designs Act will not get protection under the Copyrights Act.

Copyright in any design, which can also be registered under the Designs Act, nonetheless has not been registered, will cease the protection under the Copyrights Act as soon as it has been reproduced more than 50 times by an industrial process by the owner, license or any other person.

The Copyrights Act protects the original work of an ‘individual artist’, whereas, the Designs Act protects the design’s industrial implementation.

The Inefficiency of the Laws

As per the definition of designs enumerated under the Designs Act, a design is applied to an article, so an article directly stitched by relying on some ideas will not be a design under the Designs Act making it incapable to be governed by the said Act. However, it may seek the protection under the Copyright Act but, due to the application of section 15 of the Copyrights Act, it thus becomes difficult.

Fashion houses releases various designs in a year and therefore the requirement of registration under the Act will be time consuming. As per provision laid down under section 22 of the Designs Act, the damage will not exceed Rs.50,000, which undermines the value of the designs and especially luxury fashion houses.

Another major problem faced by the creators is that if their design is copied but the fabric material, pattern etc. are mutated, it might be considered as not copying or not infringing which makes more difficult for the designers to seek remedies and save their work from piracy.

Local creators often lack the resources to enforce their IP rights and many are unaware of such laws. Therefore, in a country like India where local creators exists in abundance and significantly contribute to the fashion industry, there is a need for holistic legislation that affords protection to their work.

In a country like India, where people want “branded” items in cheap price and with the abundance in the markets and knockoff such as the markets of Sarojini Nagar in Delhi, where every other stall is selling knock-offs of the original, it is rather impossible for the company to trace each stall and initiate litigation, especially keeping in view the long-drawn process of litigation.

Words from the Court

1.Ritika Private Ltd. v. Biba Apparels Private Ltd. (2011)

Ritu Kumar approached the court as the defendant imitated their designs thereby seeking protection under the Copyrights Act, 1957. The defendant took the defense of section 15(2) of the said Act and stated that since more than 50 quantities of the plaintiff’s work have been reproduced, the plaintiff cannot be safeguarded by the Copyrights Act, 1957. Since the Plaintiff’s work was not registered under the Designs Act, Ritu Kumar was disentitled to injunction and the case was dismissed.

Rajesh Masrani v. Tahiliani Design Pvt. Ltd. (2008)

In the instant case, the designs were not reproduced more than 50 times, therefore, the plaintiff was granted the protection and the act of infringement was injuncted. It was also held that the designs produced while developing clothes and accessories inclusive of the patters and embellishments will come under the purview of artistic work enumerated under section 2(i)(c ) of the Copyright Act, 1957.

Microfibres v. Girdhar. (2009)

The parties of the instant case were involved in the upholstery fabric business. Plaintiff’s work was reproduced by the defendant. However, since the plaintiff has reproduced the work more than 50 times and therefore by virtue of Section 15(2) of the Copyright Act, the work was not protected.

Conclusion

As people with time are becoming more fashionable and following trends, they are also being aware of their rights and laws but still, a lot has to be done. Fashion being an important part of our lives calls for protection for the fashion industry.

The Indian fashion industry experiences that their work being protected under the umbrella of intellectual property laws is not adequate enough to provide them with rights, remedies and better enforceability. It has also been observed that the creators fail to check the IP rights and the infringers walk away with profits earning from the copied designs of the creators. Designers need to protect their work both, before and after the publication of their work.

By- Naganathan Ramaswamy Iyer student of SASTRA Deemed University, Thanjavur

This article delves into the ambiguity and uncertainty regarding arbitral proceedings and insolvency proceedings, and understands the nature and effect of the co-existence of both these proceedings. The article further provides an insight to the Indian perspective by understanding the international practices in similar situations

INTRODUCTION:

Arbitration plays a vital role in commercial contracts and transactions, whereby the parties to the contract may refer a dispute to arbitration. Arbitration in its crude senseis a procedure in which through the consent of the parties, the dispute is submitted, to one or more arbitrators who make a decision regarding the same. Through arbitration, the parties undertake a resolution process outside the court system.However, in many commercial transactions and contracts, a relationship of a debtor and creditor subsist whereby the debtor owes a financial responsibility towards the creditor. The debtor maybe adjudged an insolvent, when he does not have the sufficient funds or resources to repay the debt. During such situations, so as to not put the creditor at peril, the creditor has the option of initiating an insolvency resolution process and in case of a corporate creditor, he may initiate a corporate insolvency resolution process (“CIRP”) which is a remedy available to him under the law. This remedy now puts the arbitration agreement at loggerheads with the CIRP and there is a lack of clarity as to, which mode of resolution will prevail over the other. Those in favour of CIRP may argue that even if arbitration process has commenced and hearings are heard, the debtor in that instance can claim insolvency at the end of the proceeding which will vitiate the entire process of arbitration. On the other hand, those supporting arbitration may argue that arbitration may be a better process in solving the dispute at hand. Despite of everything said and done, there is no clear stance regarding the adoption of these process when a possibility of them occurring concurrently arrives.

INTERPLAY OF ARBITRATION AND INSOLVENCY AT THE INTERNATIONAL LEVEL:

The United Nations Commission on International Trade Law (“UNCITRAL”) Model Law is the law relating to insolvency resolution proceedings and cross border insolvency process. This model law has been adopted by various countries and is the foremost important law at the international domain. Apart from the UNCITRAL Model Law, the European Regulation on Insolvency Proceedings (“EU Regulations”) provides mechanisms for cross-border insolvency proceedings which are applicable on all its member-states. Arbitration at the international level is not governed by a common law per se but the parties may choose the place of arbitration and laws applicable accordingly. The major arbitration centres at the global level are AAA, Resolution Institute, International Court of Arbitration, ICSID, SIAC, etc.

In Societe Nationale Algerienne v. Distrigas Corp.1, it was determined that arbitration policy favours a decentralised approach to dispute settlement whereas bankruptcy policy pushes for centralised dispute resolution, and the presence of both of them in a case creates a contradiction. However, when a question as to the arbitrability is raised because of the presence of an insolvent party, the practice is that the tribunal of arbitrators must consider that as an issue and decide the same under the applicable law2. And as a general rule, the tribunal refused to entertain arbitration matters where the issue relates to insolvency. As a matter of public policy, legal proceedings (including arbitration) against an insolvent party in bankruptcy proceedings should be stayed until the claimant has filed a declaration of its claim with the liquidator, and thereafter, legal proceedings should be restricted to the validation and quantification of claims, according to the ruling of the Apex Court of France in the case of Jean X. v. International Company for Commercial Exchanges3. It is also a widely acknowledged rule that a creditor (domestic or foreign) may only ask the arbitral tribunal to rule on the viability of the creditor’s claim because any request to order the payment of money or the release of property would violate the equality principles4.

Critical Appraisal:  The general international norm that the arbitral tribunal in refuses to entertain arbitration matters merely because of the presence of the insolvent parties seems to obliviate the justice mechanism, as it lengthens the process of justice and such an extension of time may lead to the ultimate solution being inviable. It is hence important for the tribunal to exercise such powers, which are aptly required in providing a favourable solution so as to settle the dispute. The Model Law should, therefore provide for suitable provisions, which are to be exercised in certain matters where one or more of the parties to the arbitration are insolvents, so as to widen the scope of the arbitral tribunal to decide up the insolvent members and their role in the arbitral proceedings.

ARBITRABILITY IN INSOLVENCY PROCEEDINGS – AN INDIAN PERSPECTIVE:

The Insolvency and Bankruptcy Code, 2016 (“Code”) is a formidable code in India dealing with the bankruptcy and insolvency proceedings in the country and determining the appropriate jurisdictions for the same. Section 14(1)(a)of the erstwhile Code provides that the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, which includes an arbitration panel. A resolution professional has a duty under Section 25(1)(b) of the Code to represent and act on behalf of the corporate debtor in arbitration proceedings. And, under Section 153(f)upon the approval of the committee of creditors, the bankruptcy trustee may refer the matter to arbitration. A moratorium in general practice refers to a legally authorised delay in the performance of an obligation or the repayment of a debt and,  the order of the moratorium issued under section 14 is valid until the competition of CIRP. However, under section 153, the resolution professional after the approval of the committee of creditors (once an insolvency proceeding has been instigated, all creditors get clubbed under a committee of creditors) may refer the matter to arbitration. This provision vitiates the original moratorium order by giving the power of the Adjudicating Authority to the arbitrator and arises additional ambiguity relating to arbitral proceedings during insolvency. Moreover, ambiguity persist in relating with validity of arbitral proceedings commenced prior to insolvency and subsequent to declaration of insolvency and there are no clear laws in this aspect.

The courts have accepted that an arbitral award which is a record of operational debt, the same would have to be undisputed in order to enable initiation of CIRP by operational creditors can be used to initiate insolvency proceedingsHowever, no conclusive and justiciable proof is available which ends the ambiguity and tussle between arbitral agreements and insolvency proceedings. The most recent development in this regard is the decision of the Supreme Court in the case of Indus Biotech Private Limited v. Kota India Venture Fund.The court held that an application for the start of the corporate insolvency resolution process under the IBC is inadmissible until the parties reach a resolution through the arbitration process as effected by section 8 of the Arbitration and Conciliation Act. The court applied that in case of a conflict involving a contractual dispute, arbitral proceedings would prevail over insolvency proceedings ( “special law prevails over a general law”).

Therefore, under the ambit of this ruling, parties must first refer the dispute to arbitration and only when such dispute is not resolved before the arbitral panel can an application be made for insolvency resolution proceedings. This judgement would protect foreign creditors as well as they could participate in arbitral process with the seat in India, governed by Indian laws, and such a mechanism would not be detrimental to the debtor as well.

Critical Appraisal:  Even though the decision of the Indus Biotech seems to be going in the right direction in the Indian perspective, it is important to elaborate on the powers of the arbitral tribunal and insolvency board respectively. It is also important to ensure that neither of these powers, breach upon that of the other, and the smooth functioning of the commercial resolution process is maintained.

CONCLUSION:

The competing interests of the parties may be solved by instituting fast-track arbitration, whereby the arbitrator gets empowered with the powers of the adjudicating officer in dealing with issues which involve an insolvency resolution process. A specialised team must conduct policy research and inculcate the practices which would be best suited for a country like India. The prima facie standard to be adopted whereby the parties must be first referred to arbitration and only in the most exceptional case, they be referred to insolvency process.

Only time will tell the effectiveness of the Indus Biotech judgement and the implementation of the above suggestions.

REFERENCES

1.Societe Nationale Algerienne v. Distrigas Corp, 80 B.R. 606 (D. Mass. 1987)

2.Zack Clement Fulbright & Jaworski LLP, November 2006 Background Memorandum for the international insolvency institute’s proposal to UNCITRAL concerning international insolvency/ arbitration, International Insolvency Institute Conference New York, USA, 2007

3.Jean X. v. International Company for Commercial Exchanges (Income)3 [ 6 May, 2009 French International arbitration law reports: 2009]

4.Iliana Karagianni, LLM Thesis, Arbitration and Insolvency Proceedings

By- Advait Nisal student of Symbiosis Law School, Nagpur

Almost a year after the infamous Suez Canal Ship accident, what stays still pertinent and evergreen is the overarching geopolitics of maritime trade. The importance of the Suez Canal is well known all across, however its worth was proved once again, this time with unfortunate losses. Almost 12 percent of the world trade volume passes through the canal and the estimated losses have been above one billion dollars. It is important to note how maritime trade is heavily dependent on the geopolitics of the world. Numerous such canals, and straits fall under the Indian Ocean Region, making it the centre for discreet geopolitics. Let us analyse the current situation in our own backyard.

The Indian Ocean is the third largest of the world’s oceanic divisions, covering roughly 20 percent of Earth’s surface. A massive 80 percent of global seaborne trade passes through the Indian ocean. This explains how critical it is for countries to maintain their authority and exercise control in this region. Key players include India, China, USA, Japan, France and Russia. After the pandemic there has developed a strong resentment among various nations against China and it is likely to face the repercussions. Meanwhile, China has been working diligently on its Belt and Road initiative by developing harbours and other infrastructure in coastal states, which is also called the ‘Pearl Necklace Strategy’. A major concern by the US has been that China is very likely to militarize these coastal states by asserting and expanding its dominance. As a response to Chinese expansive policies, Japan retaliated by announcing the “Free and open Indo-Pacific” (FOIP) concept at sixth Tokyo International conference in 2016. Japan aspires to build a competitive strategy by furthering stronger ties with India and Africa. In the same light of containing Chinese efforts, Prime Minister Modi announced the Asia-Africa Growth Corridor (AAGC) initiative and the MALABAR exercise with Japan and the USA to ensure and check China’s presence.

The Chinese base construction in Djibouti has been proved to be extremely beneficial for the nation as it is strategically located by the Bab-el-Mandeb Strait and helps in establishing sufficient maritime control by carrying out submarine patrols. In order to check Indian developments, China has been advancing relations with Sri Lanka via various trade and infrastructural development in the nation. One of the most important strategies of the USA has been to develop the Blue Dot Network (BDN). The former Trump government aimed to build such a multinational network by assisting in high quality infrastructural development. This obviously had an underlying motive of containing Chinese expansion via its Pearl Necklace Strategy. Post elections, it is believed that the newly elected Biden government would not drastically change its policy towards China and is expected to come up with a similar strategy. Russia on the other hand has been dubiously supporting China by using the port of Chabahar in Iran as a base for conducting maritime military exercises.

Clearly, the way forward for India lies in support of the FOIP initiatives by Japan and the BDN by the USA and also by self-reliance. India has been taking substantial steps of promoting self interest by getting involved in various maritime exercise with Australia with the AUS INDEX exercise, the VARUNA exercise with France, the MILAN initiative with 30 foreign navies and the MALABAR exercise with Japan and the USA. Post-pandemic the dynamics of geopolitics in the Indian Ocean region is expected to change owing to the polarized opinions against China. It should be fairly easy for India to come up with better management of the Andaman and Nicobar Island territory and make the best use of its strategic location, the generic atmosphere around the ocean post-pandemic against China gives India a golden window of opportunity to build better ties with other island nations. Island nations like Maldives, Mauritius, Madagascar and Comoros could work wonders for Indian dominance as all these island nations ask for is acknowledgment of their identity, which can be easily incorporated by India. We need to realise the importance of such geopolitical dominance in our own backyard and make it a point to make our presence felt. It is understandable that currently, owing to the Pandemic stress on resources, maritime trade might not be the highest priority for the government, but the Suez Canal incident makes us realise the danger of neglecting maritime trade. Let us take it as a reminder to ensure better maritime policy making and trade by our country in the ever-green geopolitics of the Indian Ocean region.

By- Shreyanshi Sharan student of New Law College, Bharati Vidyapeeth Deemed to be University, Pune

The fashion sector is growing all around the world. The fashion industry is an extensive large-scale industry known for innovation, creativity and continuously evolving trends. Fashion is more than just garments; it is also about the thought process, inspiration, and technique. The Associated Chambers of Commerce and Industry of India (ASSOCHAM), conducted a survey that demonstrated that in 2012 the domestic designed fashion trade in India was worth Rs. 720 crores 2012 with a 40% annual compounded growth rate (CAGR). This growth will be weighed and expected to cross the mark of Rs. 11,000 crores. Also, in “The State of Fashion 2019,” McKinsey’s report stated that the Indian fashion market will be worth $59,3 billion in 2022 and will be known as the world’s sixth-largest clothing market by then. With this and the upgraded technology, there is also a growth of intellectual ingenuity and original creativity that had resulted in a concern in the fashion industry to promote intellectual property rights. In this article, intellectual property rights and all the provisions and laws regarding the fashion industry will be analysed in detail to consider the protection of the fashion industry in India.

Keywords

Fashion Design, Protection, Intellectual Property

Introduction

With the general popularity of private brands, Indian consumers are looking for ways to access fashion companies, thanks to increased media exposure, more awareness, goals, and a larger share of disposable cash. For these fashion companies, it is not easy to keep the business afloat with the spiralling competition. In order to consistently progress, it is critical to acquire an entrepreneurial attitude as well as the ability to create and handle fresh initiatives. Entrepreneurial success, particularly in the fashion sector, is heavily reliant on creativity and invention. The fashion business, with its seasonal and cyclical demand, necessitates a great deal of invention in a short period of time.

India’s fashion industry is booming, yet it is burdened by the issue of fashion design infringement. Industry professionals have voiced their displeasure at having their innovations copied and replicated. The fashion business has long been criticized for duplicating unique fashion designs, and with the broad availability of sophisticated digital technologies, this practice has become relatively simple. As of the lack of protection of fashion designs, anybody may easily produce an exact clone of the genuine and resell it for a much lower price. Such reproductions, notwithstanding their poor quality, are referred to as knock-offs.

Regardless of whether one works in fashion or another business, intellectual property is the foundation upon which thoughts and ideas may be protected. Intellectual property is the legislation that protects the creative process. The aesthetic presentation of a concept is protected, but not the idea itself. Intellectual property law combines trademark, copyright, and patent law. To achieve effective protection for registered designs, the legal framework for protecting these designs must be made more efficient. It is also necessary to encourage design activities so as to promote the design aspect of a product.

Origin

Before delving into the genesis and development of the designs act in India, it is necessary to first explore the history of the designs act in the United Kingdom, as it was the forerunner in safeguarding industrial designs and our laws. Primarily, Patents and Designs Act 1907 was passed. It formed the basis of the Indian Patents and Designs Act of 1911. The act was enacted later in 1970 and abolished patent-related parts of Indian Patents and Designs Act, 1911. The portions of the Indian Patents and Designs Act, 1911, dealing with designs, were permitted to continue under the new title Designs Act, 1911, with certain subsequent adjustments. Fashion designs have sparked a plea for intellectual property rights, as they are the fruit of a designer’s tireless labour and inventiveness. The Design Act 2000 is the major essential act that governs design law in India today. The statutory nature of this Act makes it a complete code in and of itself.

Protection of Fashion Designs

Fashion design/apparel design can be protected under either copyright or industrial design regulations law in India. Section 13 of the Copyright Act of 1957 addresses the work in which the copyright exists. The Copyright shall exist throughout India in the types of work which original literary, dramatic, musical, and artistic works as a result, fashion/apparel design appears to fall within the category of ‘artistic activity.’ As a result, fashion designs may qualify under Section 2(c) and be protected by Section 13(1) of the Copyright Act of 1957.

The Designs Act of 2000 was enacted with the intention of safeguarding non-functional parts of a product that have aesthetic appeal, such as the arrangement of shapes, patterns, decorations, or lines or colours applied to any two-, three-, or both-dimensional form. This kind of design right valid up to ten years and can be extended for an additional ten years if necessary. It is worth noting that the Designs Act of 1911 did not provide this explicit exclusion for artistic work. The protection of fashion designs under the Designs Act looks to be a more practical means of protection since it provides protection for a duration of 15 years and is also more comprehensive than copyright protection. To be relevant under Section 2(d) of the Designs Act, 2000, the article appears to have to exist independently of the design. Furthermore, the design drawings have no utility under the Industrial Designs Act 2000 until they are applied to an object. They are still present in the greatest artistic works of the Copyright Act of 1957. Under the 2000 Act, they cannot be registered as a design.

When creating clothes and designs, fashion designers are increasing including a registered emblem on the exterior of the product. In many cases, the logo becomes an integral aspect of the design, and so a trademark gives considerable protection against design piracy. Consequently, the trade names themselves become protected under the Trade Marks Act of 1999.

Conclusion

The fashion industry has become a significant part of the growing economy at global levels. The owner must decide which is most advantageous. High intelligence is required to make a design seem nice and have an indelible mark. Adherents of fashion design preservations and protection, recognize that the fashion business is one of the most significant ingenious professions in the world presently. Designs and patterns which are at the core of the said industry, are big budgeted of production, but can effortlessly be replicated, according to them. They believe that in the apparent lack of IPR protection, copyists will profit from the attempts of creators, inhibiting further investments in fresh innovations and creations. In summary, imitation stifles originality. There is a need to improve India’s present intellectual property legislation in order to make it more conducive to protecting fashion design against piracy. Piracy is difficult to eradicate, but not impossible. If IPR is effectively protected, it will be nearly hard to violate it.

References

Design Protection in India: A Critique, (1994) 2 SCC J-11

Legal Protection for Fashion Designs, 3 IJIPL (2010) 85

The Role of IPR in Fashion Industry,

https://www.ijraset.com/research-paper/role-of-ipr-in-fashion-industry

Shishir Tiwari (2016), Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View

Fashion and Intellectual Property,

https://www.legalserviceindia.com/legal/article-3317-fashion-and-intellectual-property.html

Sameer Kumar Swarup and Sachin Rastogi (2021), Fashion Design and Intellectual Property Rights: An Indian Perspective

L. T. Vibha Chandrakar (2022), Concept in India Copyright and Design Law: Fashion

Sunanda Bharti (2016), Legal Protection of Fashion Design in Apparels in India: A Dilemma under the Copyright and Design Law

By- Ekta Gupta student of National Law University, Odisha

Introduction–

“Surrogacy”, a term which is being used in today’s world most frequently. In general sense, Surrogacy means a situation in which a woman being the surrogate gives birth to a child but not for her own but to a couple or anyone who wants to become parent and is unable to. But do we know what surrogacy is according to the law and how it is regulated? Surrogacy is regulated by the newly formed The Surrogacy (Regulation) Act 2021[1], which came into force on January 2022. Earlier there were different rules and laws but this is the newest law for the said act. The act defines surrogacy as the practice in which a woman gives birth to a child and hand overs it to an intending couple i.e. a couple who have medical problems which makes surrogacy necessary for them in order to become parents and who want to become parents through surrogacy[2].  But there are many problems associated with this law, which we will be addressing in this article.

KEY FEATURES OF THE SURROGACY (REGULATION) ACT, 2021

REGULATION OF SURROGACY CLINICS: Under this Act, it has been mentioned that no surrogacy clinics can be functioned legally unless and until they have been registered under this act. Secondly, it has been mentioned that there cannot be a practice of commercial surrogacy, no clinics can store embryo for any other purposes other than the necessary ones and no clinics can conduct services related to sex selection for surrogacy. SURROGACY PROCEDURES AND ELIGIBILITY: Under this Act, it has been mentioned that, only an intending couple or an intending woman of Indian origin, who has obtained a medical certificate and is in necessary need for gestational surrogacy, is allowed to go for this process in a manner prescribed in the act. Gestational Surrogacy means the embryo of the couple will be implanted in the woman’s body so that the genetic relations of the child is same as the parents. Also, no commercial surrogacy can be performed and no surrogacy can be performed for the sale of the child.[3]

PROBLEMS RELATED TO THE SURROGACY (REGULATION) ACT 2021

The government has always failed to regulate the surrogacy procedures in India. Now also, when the act has been formed and passed there are many lacunas in it, which need to be addressed. they are as follows:

Firstly, the main problem is, only an intending couple or women can go for this process but there is no consideration for problems which do not make women infertile but make pregnancy very riskier. They cannot avail the service as they will not have a medical certificate of infertility then; Secondly, After so many marches and fight when the LGBTQ community is slowly gaining respect in the society, this act discriminates them on the basis of the their gender and they cannot avail the services as only an intending couple or women can do so; Thirdly, The woman who goes through so much pain and tension while giving birth to a child is not entitled to get a monetary present from the parents of the child and this has been criticized by many people that due to no monetary compensation, women are not ready to being the surrogate mother and thus, This act restricts surrogacy in some form or the other; Fourthly, The act also states that minimum five years of marriage should be there to avail the surrogacy procedure, which is also criticized by many as hampering the rights of people to start a family.[4]

VIOLATION OF FUNDAMENTAL RIGHTS AND HOW?

The act violates the basic fundamental rights of the citizens such as,“Article 14, 15 and 21”. “Article 14[5]states that State shall maintain Equality in the law; Article 15 [6]states that the State shall not discriminate on grounds of religion, race, caste, sex or place of birth and Article 21 [7]states that no person can be denied of his life and personal liberty.”

This act violates all these rights as firstly it allows only a section of society to go for the surrogacy and single fathers and LGBTQ couples are deprived of the rights to go for this procedure in order to become parents; secondly, the women taking the step to become the surrogate mothers are not given any monetary compensation due to which their pain and their bodily effects goes in vein and thus women do not come forward for this step; Thirdly, it prescribes certain limits as to who can go for surrogacy and also the time limit, which limits people’s choices of starting a family according to their wish.

“In K S Puuttaswamy v Union of India[8], it was held by the Supreme Court that, the right to privacy is a fundamental right and extends its scope to many dimensions, but individual

autonomy includes, among others, the right to abortion, reproductive choices, contraceptive rights, and equality for LGBTQ people. rights. Those that are available provide sexual and health services to all other groups.

This judgement also upheld the decision given by a three-judge bench in Suchita Srivastava v Chandigarh Administration [9]  that, Women have the right to make their own reproductive choices at any time and in any way, and this is part of individual freedom under article 21.

“In Baby Manji Yamada v Union of India[10], it was held that surrogacy is a method of reproduction, thus comes under the personal autonomy part of the Article 21.”

CONCLUSION

This act needs to be amended with an immediate affect as according to the “Basic Structure Doctrine” the state does not have the power to violate the fundamental rights of the people and thus, this act in itself is unconstitutional and void. Also judicial intervention is necessary to struck down such laws which are affecting the rights of the people. This act thus remains in question till further changes have been made to it.

Sources-

[1]The Surrogacy (Regulation) Act, 2021.

[2]ibid, s 2 r.

[3]Induliya B, “Surrogacy (Regulation) Act, 2021” (SCC OnLine, 27 December 2021)https://www.scconline.com/blog/post/2021/12/27/surrogacy-regulation-act-2021/>accessed 2 September 2022.

[4]Kumar A, “The Surrogacy (Regulation) Bill, 2019” (EPW, 18 December 2021) https://www.epw.in/journal/2021/51/law-and-society/denying-choice-defying-precedent.html>accessed 4 September 2022.

[5]The Constitution of India,1950, Art 14.

[6]ibid, Art 15.

[7]ibid, Art 21.

[8]K S Puuttaswamy v Union of India (2017) SCC OnLine 996.

[9]Suchita Srivastava v Chandigarh Administration (2009) SCC OnLine 1562.

[10]Baby Manji Yamada v Union of India (2008) SCC OnLine 1470.

By- Anushka Singhal student of Symbiosis Law School, Noida

Introduction

“Nasti matrsama chaya, nasti matrsama gati, nasti matrasamam tran, nasti matrasama priya.” (नास्ति मातृसमा छाया, नास्ति मातृसमा गतिः। नास्ति मातृसमं त्राण, नास्ति मातृसमा प्रिया।) meaning, there is no shadow like mother, there is no support like mother.  Motherhood is considered to be the most beautiful as well as challenging phase of life. From becoming a mother naturally to using artificial techniques to become parents, we have come very far. Surrogacy was the new normal for all those intending to become parents without the natural process. NRI’s used to flog the Indian clinics and even singles used to avail the benefit of this facility. Surrogacy centers mushroomed in the country and commercial surrogacy became the major way of the violation of the rights of surrogate mothers. The surrogacy Regulation Act, 2021 and the Assisted Reproductive Technology Act, 2021 have shown a ray of hope that now on the human rights of surrogate mothers would not be violated and the so-called industry that had developed in India would now be put to an end.

Pre- Act Era : Violation of human rights

Prior to the passing of the Surrogacy Regulation Act in 2021, India was a hub for commercial surrogacy. In 2007, India started emerging as a major destination for surrogacy as childless couples from US and Europe were lured by the prospect of a surrogate child for around Rs. 1,00,000 ($2,250) to Rs. 2,25,000 ($5,060) for each pregnancy . [1]Couples from foreign countries used to come and provide hefty sums to the poor women in exchange of their services. Anand, a village in Gujrat emerged as the safe haven for such couples. A lot of women provided their womb for keeping someone else’s child in lieu of a hefty sum. The doctor carrying out this business of surrogate mothers in Gujrat once said in an interview, “There may be surrogacy clinics all over the state, the country and the world, but these people do sporadic surrogacy. No one in the world can match our numbers—55 surrogates successfully pregnant at the same time”. [2]This statement itself shows the scale on which the whole racket was functioning. The women were kept at a hostel and were not allowed to leave the place. 5-6 women were kept in

the same room and they even did not have lockers to keep their belongings. A similar sort of food was served to them on a daily basis and they did not have the privilege of getting food according to their cravings. Full power was exercised on these women by the clinic owners and they were not allowed to maintain a proper contact with the outside world. This is the case of Anand, a small village, imagine how this was happening on a large scale in the whole country. Prior to the passing of these acts, only the ICMR guidelines provided some sort of direction when it came to the regulation of the ART clinics. These guidelines were not enforceable and thus the clinics had the liberty to do whatever they wanted. Similarly, there were cases of breach of contract and the surrogate mother was not able to report the same as she had no education for the same. The babies also became vulnerable in certain situations. In the case of Baby Manji Yamada[3]whose commissioning mother refused to take custody after the commissioning couple divorced following the surrogacy agreement and the baby was virtually left as an orphan and finally stateless. Commercial surrogacy often led to the nationality disputes relating to the child. [4] This led to a problem to the child, surrogate mother as well as the commissioning parents. Several surrogate mothers died due to poor healthcare and incidents of the same were reported in leading newspapers like the Times of India. [5]

The new act and its benefits

The new act has banned commercial surrogacy and hence put an end to the human rights violation of the women. Following are some of the salient features of the act which would help in checking human rights violation-

1. According to S.3 Only those clinics which are registered under this act can conduct surrogacy procedures. These clinics cannot advertise or promote commercial surrogacy and  cannot induce a woman to become a surrogate. Moreover, a surrogate mother cannot be asked to abort her child. Her consent is needed before carrying out her abortion.

2. According to s. 6, the surrogate mother has to be explained all the effects that the surrogacy would have on her body and a written consent shall be obtained from her before conducting the surrogacy procedure. The form that she has to sign should be in a language that she is able to understand. A surrogate mother has also been given the right to withdraw her consent before the implantation of embryo in her womb.

3. A lot of intending couples, on knowing that their child has been born disabled refused to accept him. After the passing of this new act, Section 7 of the act would not let them do so.

4. Also, they cannot be forced by the doctor or the clinic to abort their child.

5. Now commercial surrogacy has been completely banned and only altruistic surrogacy is allowed. Altruistic surrogacy should be done by a close relative of the women.

6. Any person promoting or carrying on commercial surrogacy would now be punished. The penalties for indulging in any practice involving commercial surrogacy are listed in chapter VII.

Conclusion

Commercial surrogacy which was a big menace has now been abolished completely. Commercial surrogacy led to the exploitation of surrogate mothers but since it has been put to an end, it would be a sigh of relief for the whole country. But if we look from the perspective of the surrogate mothers who used to earn money due to commercial surrogacy, we find that their right to livelihood is being violated. The government could have made the rules for commercial surrogacy strict instead of banning it completely. Also, the act is also a bit controversial as it does not give right to single people or LGBTQ members to become parents through surrogacy. Also, the term close relative is quite ambiguous thus leading to a lot of problem. On one hand, we have managed to upheld the rights of a surrogate mother on the other hand, we are blatantly ignoring the rights of other people to become parents. We have recognized same sex but we are not recognizing the right of such couples to become parents by surrogacy which is a thing difficult to understand. Now human rights of the surrogate mother are protected but we still have a lot of distance to travel to bring out a good surrogacy act.

Citations-

[1](Malhotra, 2013)

[2](Shankar, 2016)

[3](Baby Manji Yamada vs Union of India & Anr, 2008)

[4](Jan Balaz v. Anand Municipality, 2009)

[5](Kumari, 2019)

By- Niharika Rai student of Rajiv Gandhi National University of Law

INTRODUCTION

The political stability indexof 2021 ranked India at 143th position out of 194 countries with an aggregate score of -0.62. This created a sheepish image of the largest representative democracy throughout the world. Many propositions were cited so as to justify the so called “substandard rank”, however the primary ground level reason for subsequent political instability was credited mostly to defection by political party members since its Independence.

A legislator once elected on a party ticket is perpetually expected to stick to the ideologies and policies of the same party. Though, time and again due to internal disagreements with senior leaders and quest for power, elected members usually had left the parties to join the opposition. The fact that a democracy requires a stable government by its very nature, defection was seen to be a threat for representative ethos of the country. It was assumed that the regular government crises could breed mistrust among the population, questioning the very model of “Parliamentary Democracy” Hence, introduction of Anti-Defection Law was deemed to be the “sine qua non” to combat the evils of political defection.

The Anti-Defection law was enshrined through the introduction of  Schedule X into Constitution of India, comprising of VIII paragraphs. But since its inception, there had been multiple judgements questioning the Suo moto powers of speaker under paragraph VI. Also, certain prominent judgements have been in contradiction to each other. The author therefore, opines that this conundrum shall be put forth to an end by demarcating the jurisdiction of courts under Article 226 and that of the speaker’s power under schedule X.

THE CONFLICTING JUDGEMENTS

The voice of prominent judgement is heard across the globe. Especially if it’s given by the apex court, then it not only creates a precedent but also adds strong persuasive value. There have been instances when petitions pertaining to the same section and schedule are offered contradictory grounds of decision and one of the nonpareil example is Schedule X. The judgement given by Supreme court in “Kihoto Hollohan v. Zachillhu” and in that of “R Sakkrapani v. Thiru R Natraj”“R Sakkrapani v. Thiru R Natraj”  depicts the lacuna of infirmities. Section 2(1)(b) of the schedule reads as whenever a member is found to be voting against the whip initiated by the party or acting in contrary to the directions issued shall be disqualified. This unequivocally had the motive to strengthen the existence and accountability of the government. Section VII, on the other hand gave powers to the speaker with respect to disqualification on these aforementioned grounds, which later was nullified. The speaker was treated as tribunal for the final decision maker for disqualification of the members.

However, in “Kihoto Hollohan v. Zachillhu” the unwarranted power of speaker with respect to disqualification of a member was questioned before the apex court. It was argued that the finality of decision shall not lie solely in the hands of speaker and shall be subject to judicial review. Also, it was presumed that the speaker’s position of authority in the house and his continued service depends on the desire of the majority so it is possible that he may be biased. Therefore, allowing the same under the purview of Judicial Review was meant as the need of the hour. Also, it is pertinent to mention the concluding judgement of the case wherein the bench observed that in the X schedule, the Speaker is made not only the sole, but the final arbiter of dispute with no provision for any appeal or revision against his decision to any outside authority. This departure of the tenth schedule would be a reverse trend and violate the basic structure of the constitution. Since the speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates, the para VII of the X schedule was held unconstitutional and the defection cases were held amenable  to judicial review”

Further, it was iterated that reaching out the court, prior to the decision of the speaker shall not be entertained unless it falls under the following grounds namely

Infirmities based on violation of constitutional mandate

Mala fide intention of speaker

Non compliance with rules of natural justices

Perversity

In accordance with this viewpoint, the courts were not expected to render a final decision on the petitions by acting as the competent authority under the schedule or issue a temporary disqualification order for the accused member(s) while their petitions were being reviewed by the Speaker. This nullified  para VII (excluding the jurisdiction of courts) of X Schedule. As a result, the arbitrary decision of the speaker for the petitions prolonging for indefinite period limiting his unwarranted power.

However, in the year 2018; R. Sakkrapani, a Tamil politician and member of legislative assembly was disqualified for voting against the whip issued by the party and he challenged the same in High Court. Here, it was again contended that if the speaker disqualifies a candidate and upholds the same for an indefinite period then this shall be an opportunity to reach the court. Also, it was argued that speaker’s failure to dismiss the petition without any prior notice constituted a violation of disqualification rules and such inaction in itself would uphold the validity and denies the principle of “ubi jus ibi remedium”. The bench observed that they were constrained to embark upon the exercise of taking over the functions of the Speaker. Though in exceptional circumstances the court shall be reached out and even assuming that those circumstances exist, but seeking relief by the order of court  would only not amount to judicial overreach, but would also amount to gross breach of judicial discipline. The case was therefore dismissed namely . “R. Sakkrapani v. Thiru R Natraj”

This not only questioned the former judgement but also obscured the thin line of differentiation between powers of speaker and that of jurisdiction of court. It was clear that the courts were not allowed to execute quia timet acts i.e., “because one fears the disqualification at a later stage will not be allowed to reach the court prior to it”. The same was akin to pre-emptive action, and was deemed not to be the right course. Also, one may easily reckon that the speaker’s inaction in the case led the petitioner to reach the court for judicial review. However, the court’s dismissal opining it not to be within their ambit despite the fact that it was final decision of speaker depicted the gross violation of the precedent set in Kihoto Hollohan case.

These two judgements, had not only created an ambiguity in the jurisdiction of Courts but also had laid down a question mark on the power of speaker with respect to defection. The “horse trading”had been a problem why Anti-Defection law was introduced, but the subterfuge law in itself has become a bone of contention because of its obscure implications. The requisite gap filling exercise between the two should be conducted.

CONCLUSION

Lord Halifax rightly had said that “Even the best of the political party is a conspiracy against the nation”. The strife between the party in power and party in opposition had been a battlefield for the members with regard to defection and retention. However, amidst this conventional culture, the very spirit of the parliamentary democracy is transgressed and neglected. It is high time when these enigmas should be addressed by a higher Constitutional bench. The speaker’s suo moto power to disqualify the member should only be subject to judicial review after qualifying the grounds cited in Kihoto Hollohan Case. The disqualification shall be adjudicated by the speaker in a time bound manner. Also, the jurisdiction of apex court should only be entertained after this and not outrightly breaching the division of powers between various organs. Provisions seeking to exclude the jurisdiction of court shall be construed and a clear distinction need to be conveyed invariably.

By- Madhur Khatri and Ridhi Rajani student of The Kirit P. Mehta School of Law |SVKM’s NMIMS (Deemed-to-be-University), Mumbai.

INTRODUCTION

The prevention of unauthorized or unintentional access to, modification of, or destruction of data stored on computers, as well as programmes, networks, and other digital assets, is the process that is referred to as “cyber security” and is referred to by the term “cyber security.” Even though the concept of safety has been around since the beginning of time, the idea of safety as it pertains to what we understand it to be today has evolved quite a bit over the years. Attacks that are carried out via the internet have the potential to, among other things, disrupt financial systems, steal or modify confidential information, limit or disable all essential services, and obstruct official websites and networks. The management of international relations in the twenty-first century has rapidly evolved to include consideration of cyber security, despite the fact that this field is still in its infancy. It has already started having an effect on the ways in which countries relate to one another. For example, in recent years, the United States and China have had a difficult time reaching a consensus on the issue of cyber security. This is due to the fact that both countries view the problem from very different perspectives. There have been instances in which decision-makers in the Indian setting have not given the problem of cyber security the appropriate amount of consideration when they should have. The various governments in India have been unable to satisfy the ever-increasing demand for cyber security measures that are both effective and comprehensive. India does not have the capabilities of hostile and guarded network protection that are expected to protect against cyber attacks. To such an extent that the government is unable to meet the ever-increasing demand for an effective cyber security infrastructure. In addition, the scope of India’s cyber security programmes and operations is significantly lower when compared to that of other industrialised nations’ programmes and operations.

PERSPECTIVES ON CYBER SECURITY IN INDIA

The information technology industry in India has quickly become recognised as one of the most important contributors to the country’s overall economic expansion. In addition, this industry has a beneficial effect on the lives of the people living in the surrounding area as a result of the contributions it makes, either directly or indirectly, to a wide variety of socioeconomic parameters. These aspects include, amongst others, diversity, employment rates, and general living standards. In addition, the government sector has provided support for the growing acceptance of information technology in the sectors of the nation’s economy that promote the use of information technology, as well as “National initiatives such as Unique Identification Development Authority of India” (UIDAI) and “National e-government Programmes” (NeGP). The successful implementation of these programmes has made it possible to build a comprehensive information technology infrastructure, which in turn has led to an increase in the level of business engagement. Nevertheless, in spite of the growth of India’s information technology companies, there has been an urgent need to safeguard the computer environment and to establish an adequate level of confidence and trust in this industry. This is the case despite the fact that India has a large number of information technology companies. In light of the existence of such an environment, it is of the utmost importance for the country to establish a cyber security ecosystem as quickly as humanly possible.

Despite the many significant steps that have been taken, India’s projects and efforts to improve its cyber security are still relatively limited in number when compared to those of other developed nations. It has been reported by the government of India that the number of cyberattacks carried out against businesses, such as those that are engaged in the provision of banking and financial services, has significantly increased. The nation ranks number seven when it comes to the number of cyber attacks and number eighty-five when it comes to the number of Internet connections. In addition, India is still regarded as an attractive target by cybercriminals, with approximately 69 percent of targeted attacks concentrating their attention on significant businesses. According to a study that was carried out by Symantec, a company that develops software for the purpose of providing security, nearly four out of ten attacks in India target non-traditional service categories like commercial, hotel, and personal services. As a consequence of this, India must immediately formulate a plan for effectively handling cyber crises in order to mount an effective defense against cyber-attacks.

INDIA’S NEW CYBER SECURITY POLICY

We, as a nation, are dedicated to maintaining our fight against the intrusive and faceless adversaries who rule the arena of cyberspace. This is done with the goal of preventing infringements on our sovereignty, jurisdiction, and privacy.

Our digital defences are more vulnerable than they have ever been as a direct result of this. There were 1.16 million incidents of cyber security in 2020, which is a threefold increase from the previous year’s total number of incidents. This information was gleaned from the statistics collected by the Indian government in 2020. Many government websites in India disclosed the COVID-19 lab test results of thousands of the country’s residents at the beginning of the year 2021. It is ironic that despite the widespread awareness of the potential threats that may be posed by activities in cyberspace, the state does not yet have a strategy that defines the necessary procedures to counteract these threats. However, in order to achieve stability and security with regard to the issues of cyber security, India needs to plan and implement a strategy that places an emphasis on working together. The revised Cybersecurity Policy needs to include provisions for dealing with these three crucial areas:

1. The Legal Constitutional Structure Despite the fact that India does not have any specific laws pertaining to cyber security, the Information Technology (IT) Act, 2000 addresses both cyber security as well as the crimes that are associated with being online. “The Indian Penal Code, 1860 (which punishes offences, including those committed in cyberspace), as well as the Companies (Management and Administration) Rules 2014, which were formed under the Companies Act 2013, both have certain laws pertaining to cyber security,”

2. Cyber Response Entity – Any organization that is responsible for the management of cyberspace on a national level should have a distinct chain of command in order to make the best possible use of all of the resources that are currently available. Unfortunately, a structure of this kind does not yet exist. The Indian government is comprised of a number of institutions, each of which deals with a unique aspect of cyber security, and these institutions collaborate with one another. In the pursuit of a common goal, it is of the utmost importance to coordinate the efforts of specialists who are now employed by several different government ministries and departments. It is possible that the government will create an organization that operates in a manner analogous to a National Cyber Command.

3. The protection of data is a public resource, and the most amount of information that can be transmitted is done so with the help of the internet and other forms of electronic communication. The vast majority of nations, both their governments and their citizens, are dependent on the internet for a variety of everyday operations, and as a result, the majority of these nations have enacted some kind of data privacy regulation. The General Data Protection Regulation (GDPR) was enacted in the European Union, while in the United States, the California Consumer Privacy Act was passed. Despite the fact that the personal information of a number of Indian citizens has been stolen or otherwise compromised on multiple occasions, there has been no rush to pass the Data Protection Bill since it was presented to the Indian Parliament in 2019. (a fact that has been widely reported in the media).

CONCLUSION

The fact that there is currently an issue with cyber security is not something that should be ignored; in fact, this cannot be done at this time. In spite of the fact that a society devoid of criminal activity is unachievable and can only exist in the realm of the imagination, there must be ongoing efforts made to reduce criminal activity to a minimum through the implementation of regulations. Lawmakers will need to go above and beyond to ensure that imposters are kept at bay in this society, as it is inevitable that this rate of criminal activity will rise. Because of this, the entire landscape of terrorism will undergo significant change. It is essential to have a common goal or vision in order for international cooperation to be successful in ensuring cyber security, preventing cyber war, and reducing the number of cyber crimes. When it comes to India’s strategy against terrorism, the time has come to put more emphasis on cyber security.

By- Yashaswani Parashar student of University of Petroleum and Energy Studies

Recent Case law: Ajay Kumar Dochania V. Bhagyanager Silk Mills

The concerned company in the present case was incorporated in 1978 as a private limited company by three groups of individuals. The dispute arose when respondents illegally drew out the company’s reserves and unlawfully appropriated them. Further, the company’s objective was changed to matter not ancillary and without following the proper procedure and through the fabrication of documents changes were made in memorandum before the company’s registrar. In 1983 the company was closed as the company suffered heavy losses. Therefore, the case was filed to wind up the company on the ground of its non-functioning and it has lost its substratum. The learned counsel from both sides prudently relied on judgments of the foreign as well as Indian Courts. The judgment in the concerned case provided analysis of the issues on the basis of reasonable legislative grounds. The learned counsel from the side of the petitioner rendered the company liable to wound up under section 433(c) of the Companies Act . The court relied on the grounds of reasoning on the points of consideration which included (i) whether the respondent lost its substratum and (ii) whether the respondent was liable to be wound up.

On the examination and recording of the petitioner and witnesses along with the evidence respectively, it was found the main objective of the company was to make the business of manufacturing, printing, and dyeing of textiles which was carried for a period of fewer than 2 years i.e., 2004 to 2006. further, it was found that through the amendment of the memorandum of association steel casting was introduced as another object of the company, however, the activity stopped completely after a short span of time. As these grounds were taken in the petition to subject the respondent company to winding up, as provided under Section 433, clause (c) and (f) thereof. One of the significant concepts essentially discussed was the ‘substratum’ of a company. Hence, it was checked in determining violation of the substratum of the company, considered to be the foundation of the company, destroy the objective or not, and consequently, can it be considered as a ground for winding up the company.

Understanding Substratum of a Company

The term substratum is pertinent to be understood as one of the grounds for winding up a company. A company winds up whereby the entity dissolves, and its life comes to an end, including the release of assets, payment of a debt, and the remaining proportion paid back accordingly to the members. Moving out of the purview of the objective does not lead it to loss of substratum but failure to carry out an object for which the company was actually constituted leads to loss of substratum. Even if the assets and liabilities are not majorly affected but if the possibility of carrying out the objective of the business fails, it leads to failure of substratum and substantial ground of winding up a company.

In the present case, the petitioner’s counsel relied on the clause (c) and (f) of Section 433 of the Companies Act, 2013 which envisages: firstly, suspension of business the for whole year and secondly, the tribunal in furtherance of just and equitability as grounds of winding up the company. The concept of substratum has been recognized as falling under just and equitable ground for winding up the respondent company. Relying on the case of Baring v. Dix, it was observed that when the company in this particular case failed to carry on the activity of spinning cotton, specifically produced under a patent, turned the partnership firm invalid and destructed the subject matter of partnership. The court further relied on the case of Anglo-Greek Stream Co. , wherein, the court observed the five rules of winding up a company and ‘just and equitable’ being one of them. A company may be wound up if it is found to be insolvent or circumstances are such that carrying on business becomes inevitable.

Further, emphasis on the case of German Date Coffee Co. was laid down, wherein, the memorandum of association of the company included manufacturing of coffee to obtain a patent for the same. Later, the company obtained a Swedish patent without fulfilling its foundational goal and also started manufacturing coffee without a patent. Consequently, some of the stakeholders withdrew from the company and asked to wind up it but the majority of stakeholders desired to continue. The court held that the acquisition of the German patent could not be accomplished which was the main object of the company. As the company started working beyond the substratum and continued with the activities beyond the purpose of obtaining the particular patent, it was held to be subjected to winding up.

Relation of Substratum and Objective of a Company

The foundational objective of the company is deep-rooted in its financial, operational, and legal capability, in case any of them is mismanaged or not handled prudently would tremendously affect the medium of attaining the objective. To support the same, the court in the present case relied on the case of Cine Industries and Recording Co. Ltd., wherein, it was held that a company becomes capable of winding up when subject matter which is generally incorporated under the object clause has substantially failed. There might be a situation where a company starts carrying out other objectives ancillary and incidental to the main object, however, losing the foundational objective leads to be determined on the question of winding up the company. In the present case, the court on checking the facts and circumstances found that nowhere it could be proved by the respondent that the substratum has not gone, making it liable to be wound up.

Judgment

The court noted the following facts of the case that the objective for which the company was incorporated i.e., manufacturing, dyeing and printing of textiles, it ceased to be carried out as the company started suffering heavy losses. Further, the machinery and fixed assets of the company also sold out following which it initiated other activities unconnected with the main objective of the company for which it was established. The court considering the points as submitted in the petition found it just and equitable to wound up the company. Hence, asked the respondent to pay the initial expenses to the official liquidator assigned to take over the affairs of the respondent.

Conclusion

The concerned issues raised in the case were with regard to one of the grounds to wind up a company under section 433 (c) and (f) of the Companies Act, 2013 which talks about just and equitable opinion of the tribunal to wind up a company. The criteria are broad enough to include disappearance of substratum as ground for winding up the company in the dispute between the shareholders of the respondent company. As the company lost its substratum and carried out the activities totally strange from the foundational objective, subjected it to winding up. Further, a very crucial difference of substratum and main objective were also discussed by the judges giving reference of established cases. Wherein, it is pertinent to note that even if the main objective is not carried but substratum stands, the company would continue subjected to just and equitable opinion of the court. Thus, it is clear from the facts established with evidence and referred authorities that if court found that the foundational objective of the company is lost it may be winded up under the provision of Section 433 (f) of the Companies Act, 2013. Sources-

1.Ajay Kumar Dochania V. Bhagyanager Silk Mills, 2015 SCC Online Hyd 1027.

2.The Companies Act, 2013, §433, No. 18, Acts of Parliament, 2013.

3.A Ramaiya A Guide To The Companies Act, 17th Ed.2010.

4.In Re Anglo-Greek Steam Navigation and Trading Company., [L.R.] 4 Ch. App. 174.

5.In Re German Date Coffee Company., [L.R.] 20 Ch.D. 169.

6.Gine Industries and Recording Co. Ltd., In Re, 1941 SCC Online Bom 122.

Madhusudan Gordhandas And Co. V. Madhu Woollen Industries (P) Ltd., (1971) 3 SCC 632.