The INDEMNITY CLAUSE in the fight against the Pandemic

As the world is fighting its way back to normal against the Covid pandemic, vaccine is the prominent arsenal to slay the crisis. However the question which could be often considered is how the government is going to deal with acute shortage of Covid-19 vaccines for which Centre is already receiving slurs. Another question of significant consideration is to vaccinate the 70 percent of the population to attain herd immunity which at current pace would take 8 years at least[1]. Thus the government has substantial task in hand to take care of in the coming years and to tackle the same the government is consistently functioning towards launching several other vaccines approved in other subcontinents in the Indian market. One of such case is with Pfizer, one of the world’s giant biopharmaceutical companies, which has approached India with a handful of vaccines but in lieu of indemnity from the Indian government which has become a thorny issue. Now in the legal parlance, what does Indemnity means is the question which this article is going to deal along with the repercussions of the clause, if granted.

Indemnity Clause

To begin, simply, Indemnity could be said to compensate for the loss. Broadly, Indemnity is a relation between the two parties wherein one party has reasonable apprehension of suffering loss, therefore to avoid it, the party who has such apprehension enters into an indemnity agreement with the other party, who promises to make good or to remunerate or to repay any loss caused to the former party. The loss for which the indemnity is given could be caused due to the conduct of the promisor himself or it may be due to the conduct of any other person. Thus, indemnity is analogous to a shield which is usually put in front by a party to avoid the loss and suffering, usually monetary in nature.

Under the Indian Law, the concept of Indemnity is governed by the Indian Contract Act, 1872. The Concept has been expressly provided under Section 124 of the said Act. The text of the act reads- A contract, by which one party promises to save the other from the loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a “contract of indemnity”.

The analysis of this definition reveals that there are two parties in a contract of indemnity, first, the Indemnifier, who promises to protect from the loss and second, the indemnified or the indemnity-holder, whom the promise of protection is made. In the instant scenario, the government of India, if agrees, will be regarded as the indemnifier and the Pfizer will be regarded as the indemnity-holder. Now once the indemnity is granted the Indemnity-holder becomes entitled of certain rights which he could enforce against the indemnifier. These rights are specifically provided under Section 125 however indemnity-holder could enforce these rights only when he is sued and not otherwise. These rights are summarized below:

  1. The right to recover all damages from the indemnifier which the indemnity-holder may be compelled to pay in a suit for recovery of damages, in respect of all matters for which the indemnity is given.
  2. The right to recover all the costs from the indemnifier paid by the indemnity-holder during the institution of any suit.
  3. The right to recover the entire amount paid by indemnity-holder under the terms of compromise which may be reached at the closure of the suit.

The act is silent about the rights of the Indemnity-holder and therefore their rights depend upon the judicial discretion or interpretation.

The Loggerhead between the government and the Pfizer.

When we subsume this concept in the present scenario it may be proper to say that once the indemnity is given, the Pfizer would be obliged of no liability towards any person who if takes its vaccine and consequently suffers any adverse effect. It means a person would be unable to bring a legal action against the pharma giant for the injury caused to him and such liability would be incurred by the government of India. This concept could be regarded identical to no fault liability as the person from whose fault the consequence is ensued couldn’t be brought to Justice rather the other is liable for him and hence it would be proper to say that the person actually liable would ultimately escape from liability.

Another important aspect which could be considered is that generally a party’s willingness for an indemnity bond arises when such party has reasons to believe that there may be some loss caused to him. Now if the Pfizer is stressing upon the indemnity clause then it could be quite rightly said that it may be unconfident about its product or maybe acquainted with the dire consequences which may ensue. The Pfizer company states that it has been granted indemnity whatsoever in the USA and UK wherein its vaccines have rolled out previously. However this cannot be the basis to fulfill the wants of the company as the difference between the inhabitants of both the regions, when and if compared, to that of Indians, is huge. That’s why there is a loggerhead between the company and the government but Pfizer is consistent on its stand on the indemnity clause and it has no plans to improvise its position.

Conclusion

We undoubtedly are in a dire need of vaccines to avoid any further havoc by the pandemic but it is pertinent to understand that if a vaccine enters the Indian market, first without proper clinical trial on the local inhabitants and secondly, with an indemnity bond then it is not untrue to believe that we will be left at a great peril to suffer, firstly from the pandemic and subsequently by an untested vaccine as the government would only be liable to incur the monetary damages to the aggrieved party but who will be liable, if due to any adverse effect of the vaccine, there is a loss of even a single life, whose going to compensate for the love and affection towards the departed soul, is a big question mark. The way forward for the government could be to negotiate on the indemnity clause to confer the liability upon the Pfizer as if once the vaccines are purchased and inoculated, in case of any adverse effect, the government could not run behind Pfizer for a clarification, thus it is proper to be cautious initially rather to regret later.


[1] https://www.indiatoday.in/coronavirus-outbreak/story/india-will-take-12-years-to-vaccinate-all-8-years-for-herd-immunity-1793746-2021-04-22

PROTECTING THE INTEREST OF CHILD WHO LOST PARENTS TO COVID PANDEMIC

The second wave of the Co-vid Pandemic has created a reckless havoc across the country as many have lost their loved ones during this crisis. The trauma however is immeasurable for a child who has lost both his parents during the pandemic therefore it is pertinent to discuss as to what protections and schemes have been enunciated by the respective governments across the country for such children and moreover how can we support the government to implement the policies in an effective manner so that no stone is left unturned and all the children who had been the victims of this crisis could have a better future.

As per the latest info, provided by the Union Ministry of Women and Child Development, as many as 577 children have been identified as an orphan however we may be well acquainted with the fact that these numbers are improper indication of the ground reality as many children across the country would have had lost their parents. Nevertheless to tackle the same, the Union Ministry has set up the childline 1098 to which a person can give information regarding a child who has lost his/her parents due to Co-vid pandemic and there is no one to take care. Further the Union Ministry has been engaged with all the states in taking weekly reports with the support of other agencies. The government has also decided to allocate a fund of 10 Lakh per district under the Integrated Child Protection Scheme of the Women and Child Development ministry for the welfare of these children.[1] This has been the status as provided by the Union Ministry but in our Federal State it is essential for the State to take up the task of welfare of the such children in their hands then only there could be a proper implementation of the Union Govt. policies and the State governments have not at all failed to do so. Since the past few weeks, State governments, across the country, have released a slew of guidelines and policies to protect the social, educational and economic welfare of a child who has lost both parents in this crisis.

In particular, the Uttar Pradesh State government has said that such children are an asset to the state and the government will take care of them and will look after their health, education and security consequent to which the Chief Minister has instructed the Department of Women and Child Development to prepare a comprehensive work plan for the children. The Department, in turn, has asked for a list of such children from the District Magistrates. The State Child Protection Society under Section 6 of Juvenile Justice (Care and Protection of Children) Act, 2015, has been tasked with establishing shelters for the rehabilitation of children. The additional Chief Secretary (Information) Navneet Sehgal said that Our Chief Minister has issued directions for the formation of a task force in each district to identify and adopt such children, so far, identified 60 children across the state who have lost both parents to the pandemic have been taken into regard and many more are being identified.[2]

The NCT of Delhi government has also announced that children who have lost both their parents to Covid-19 will get an aid of Rs. 2500 per month till they turn 25 years old, and expenses for their education will be borne by the Delhi Government.[3]

Several other governments have announced similar and other policies for the welfare of the children affected in their State. Thus this has been the case with our government now the question worth consideration is that what can we, as a layman do, to protect the welfare the children who are affected by this crisis. As if we don’t step up to this then many children could become the victim of child trafficking and abuse Thus what a person can do if he is acquainted with any of such child he may approach or contact the office of either the State Children and Women Development ministry or the office of District Magistrate and may give the necessary information so that the appropriate authorities could hold further action in regard to same. Morally, a relative of such child who is financially capable to ensure benefits to such child could provide financial and educational guidance till the child becomes capable to earn his bread. These are some of the options, there may be several other appropriate opinions which may benefit a child and they may be implemented accordingly. What is important is not just to sit quietly but to do a bit which might have a positive impact on such child’s life.

However the best option for a person is that if he doesn’t have any child and is willing to adopt a child he may do so now as it is the right time because the child who has lost his/her parents needs proper nurture in respect of emotional and mental support. The general public must also has to keep in mind that they should refrain from spreading there opinion as to adopting a child on any social media platform as the government is taking cognizance on the fake messages, rather what can be done is that the parents who are willing to adopt an orphan child may approach Central Adoption Resource Authority for “Lawful adoptions”[4] and if the Fundamental principles governing adoption that is the Best Interest of the child which is regarded as the paramount consideration is satisfied the parents could adopt a child after all the necessary documentation provided in CARA’s guideline for legal adoption.


[1] https://wcd.nic.in/howtoprotectchildwholosttheirparenttoCovid-19/

[2] https://www.timesnownews.com/india/article/uttar-pradesh-yogi-govt-to-take-care-of-children-who-lost-their-parents-during-second-wave-of-covid/759312

[3] https://indianexpress.com/article/education/delhi-government-to-sponsor-childrens-education-who-lost-parents-to-covid-7315044/

[4] http://cara.nic.in/

ARBITRATION v. CONCILIATION.


AMAN PANDEY, L.L.B. (HONS.) 7TH SEM, FACULTY OF LAW, UNIVERSITY OF LUCKNOW.

INTRODUCTION

Alternative Dispute Resolution[1] mechanism has become prevalent across the globe and people around the world find it more convenient to resolve their disputes through these methods rather preferring the conventional method of regular court proceedings. When compared to the regular judicial proceedings, ADR mechanism is more flexible and party centric and includes mediation, negotiation, arbitration, conciliation, Lok-Adalat etc.  Undoubtedly, ADR is a modern concept which has been developed to settle disputes amicably and speedily specifically involving rights in personam. The mounting arrears of pending cases in the Indian Courts involving inordinate delay in the delivery of justice and the expenses of litigation are the factors inclining litigant’s faith to the alternative resolution methods.

Arbitration and Conciliation are two of the most prominent ADR methods which the parties prefer to resolve their disputes. These two ADR methods have been given statutory recognition under the ARBITRATION & CONCILIATION ACT, 1996[2] in India. The analysis is thoroughly based on comparing both these methods distinctively in brief.

ARBITRATION

The Act of 1996 provides that “any arbitration whether it is administered by any permanent arbitral institution or not”[3] will fall within the meaning of arbitration, thus, the definition is a mere classification that the act covers institutional and ad hoc arbitration, however it is silent upon the meaning of arbitration thus this definition is based on the definition provided by the UNCITRAL Model Law[4]. The literal meaning of arbitration is settlement of all or certain disputes or differences between two or more parties in pursuance of which the arbitrator determines the rights and liabilities of the parties after adjudicating the matter and such adjudication is binding upon the parties. Arbitration is thus defined by Romilly M R as “An Arbitration is a reference to the decision of one or more persons, either with or, without an umpire of a particular matter in difference between the parties.”[5]

Arbitration finds its origin from an arbitration agreement[6]. An arbitration agreement gives right to the parties to initiate arbitral proceedings when the rights of the parties are violated or liabilities of the parties are not being discharged.

CONCILIATION

Conciliation is a less formal way of Alternative dispute resolution method. It is inclined towards building a healthy relationship between the parties. In the process of Conciliation the third neutral party i.e. the conciliator plays an active role in the actual settlement of disputes and even suggests the parties the proposals of settlement to amicably resolve the dispute. The conciliator, usually the authoritative figure, is responsible for working towards the best interest of the disputing parties by giving the best solutions.  Conciliation has been given statutory recognition under Part III of the Act of 1996.[7] The scope of conciliation extends to the disputes, whether contracted or not but it is essential that such dispute must arise out of the legal relationship.[8] It means that the dispute must be of such a nature that is must give rise to the right and liability of the parties to sue and be sued.

ARBITRATION v. CONCILIATION

Though both, arbitration and conciliation are methods of ADR mechanism they differ in many vital aspects. The major similarity between these two methods is the appointment of the third neutral party to resolve the dispute. The essential points of distinction between the two are stated as following:

  1. NATURE OF PROCEEDINGS:

The conciliation proceeding as compared to arbitration is less formal in nature. It means the process of adjudicating the rights and liabilities of the parties is absent rather under this process, to resolve the dispute, several communication sessions are initiated and held by the conciliator, individually or collectively, in which the conciliator becomes aware of the root cause of dispute and subsequently reach to an inference which is in the best interest of both the parties.[9]

  • APPLICABILITY:

Unlike the Conciliation which is applicable only to existing disputes, Arbitration can be made applicable to both, existing and future disputes. The only requirement is that while constituting an agreement there must be an arbitration clause which gives sanction to the arbitral proceeding. The bindingness of the clause is such that even if the principal contract is repudiated, the arbitration clause will survive due to its independence.[10]

  • INITIATION Of PROCEEDINGS

The proceeding of conciliation is initiated by the party willing to conciliate by means of sending a written invitation to the other party which also includes the subject-matter of the dispute subsequently the other party may give his written acceptance to it. However if he rejects the invitation, it will have no binding effect and consequently the conciliation proceedings shall not commence whereas the constitution of prior arbitration agreement has binding effect on the parties and even if one of the parties approach the court to commence regular court proceeding, the court, on request of the other party, is bound to compel the parties to resort to arbitral proceedings.[11]

  • APPOINTMENT OF THIRD NEUTRAL PARTY:

Under the arbitration process the parties if, fail to determine the number of arbitrators, which should always be even, the act provides for the appointment of sole arbitrator.[12] Whereas in case of conciliation, by default, a sole conciliator is sufficient however the parties can appoint one conciliator each. 

Under Arbitration, if the parties opt to appoint a panel of three arbitrators, each party may appoint an arbitrator and the appointed arbitrators will appoint the third arbitrator. However in case of conciliation, each party may appoint one conciliator and agree upon the name of the third conciliator.[13]

  • ROLE OF THIRD PARTY:

Unlike arbitration where the arbitrator not only actively arbitrates but also resolves the dispute by passing an arbitral award, in conciliation the role of conciliator is to assist and suggest the parties to reach an amicable settlement of their dispute.[14]

  • DISCLOSURE OF INFORMATION:

In conciliation, on request of the other party, the conciliator may withhold information.[15]

But it is not so in arbitration as the information given by a party is subjected to scrutiny by the other party. Thus there is no question of confidentiality in case of arbitration awards. There is no confidentiality inter se the parties, however, all ADR systems are confidential procedures, they are not available to the public as precedents as referable records of case laws.

  • TERMINATION OF PROCEEDINGS:

The conciliation proceedings may be unilaterally terminated by a written declaration of a party to the other party and the conciliator, but arbitration proceedings cannot be so terminated.[16]

  • DISABILITIES:

A conciliator once appointed is imposed upon with certain disabilities like he cannot act in the capacity of an arbitrator or a council or a witness in any proceeding whether arbitral or judicial[17] whereas there is no such bar upon the arbitrator or the parties to an arbitral proceedings.

  • ENFORCEABILITY

An Arbitral award is enforceable as a decree of a civil court[18] however the decision of conciliator is non-enforceable but if the decision is the result of mutual settlement between the parties, it will have the same status as that of an arbitral award and it may be enforced as a valid contract.

  1. EVIDENTIARY VALUE

Unlike the arbitration proceedings which have evidential value in the eyes of law, conciliation proceedings cannot be used as evidence in any proceedings.[19]

CAN A CONCILIATOR ARBITRATE?

The UNCITRAL Conciliation Rule, 1980[20] and the Act of 1996[21] both expressly provide that a conciliator shall not be an arbitrator for the same dispute which he/she has conciliated. However Justice Kannan[22] held that if there is an arbitration clause, agreement or contract between the parties, the council who had conciliated in the dispute, on termination of such proceedings, can be appointed as an arbitrator.

CONCLUSION

Both these ADR methods are objected towards alleviating the burden from the judiciary thus it can be seen as a sustainable methods of Alternative dispute resolution in coming decades, however these methods should not be seen as a substitute to the traditional judicial proceedings rather it must been seen as an enhancement in working of our judicial system more effectively and conveniently.


[1] Hereinafter to be read as ADR mechanism.

[2] Hereinafter to be read as the ACT OF 1996.

[3] Section 2(1)(a) of the Arbitration & Conciliation Act, 1996.

[4] Article 2(a) of the United Nations Commission on International Trade Law.

[5] Collins v. Collins 28 LJ CH 186: (1858) 26 Beav 306.

[6] Section 2(1)(b)  of the Arbitration & Conciliation Act, 1996.

[7] Sections 61 to 81 of the Arbitration & Conciliation Act, 1996.

[8] Section 61 of the Act of 1996.

[9] Section 69 of the Act of 1996.

[10] Doctrine of Separability, governed by Section 16(1)(a) & (b) of the Act of 1996.

[11] Section 8 of the Act of 1996.

[12] Sub-section (1) & (2) of section 10 of the Act of 1996.

[13] Sub-section (3) of section 11 & clause (c) of sub-sec (1) of section 64 of the Act of 1996.

[14] Section 72 of the Act of 1996.

[15] Section 70 of the Act of 1996.

[16] Section 32 & Section 76 of the Act of 1996.

[17] Section 80 of the Act of 1996.

[18] M/S Umesh Goel v. Himachal Pradesh Cooperative Grouping House Society Ltd., 2016 SCC OnLine SC 624

[19] Section 81 of the Act of 1996.

[20] Article 19.

[21] Section 80.

[22] Welspun Corp. Ltd v. Micro and Small, Medium Enterprises Facilitation council, Punjab and Ors. 2012 166 PLR 195

LOVE JIHAD LAW


AUTHORS: Aman Pandey, LL.B.(Honours), Faculty of Law, University of Lucknow, email- amanpandey.ap03@gmail.com,

LOVE-JIHAD, this term may be known to all of us. It is basically a theory wherein a man of a community, to be more specific the Islam community, conspires to marry a woman of a different community consequently making to convert her religion. The Uttar Pradesh Vidhi Virudh Dharm Samparivartan Pratishad Adyadesh, 2020[1] has been promulgated to tackle these and other forceful religious conversion cases which is an appreciable step in order to eradicate unwilling or forced marriages which leaves no one except a woman to suffer however how will the distinction be drawn between cases of forceful conversion and those which are genuinely consensual, is the matter of concern? Ironically, what is interesting here to note that the said Ordinance itself doesn’t define the term ‘love jihad but pursues to criminalize it. It is assumed when an individual attains the age of 18 years, he or she become responsible enough to determine what’s good and whatnot that’s why the voting rights are conferred upon an individual at the age of 18 thus enabling him or her to decide, who will run the country and make policies that would affect us. However, when it comes to choosing a life partner, patriarchal notions and ideals play a significant role. As we grow it is taught to us, informally, to refrain from romanticizing relations with a person of another caste community. Historically, marriages have been an instrument to control a women’s sexuality, desires, aspirations, and whatnot.  It promulgates caste lineage & restricts women from exercising their freedom & autonomy. The communal propaganda in our country does nothing to safeguard this discrimination against women rather it further encroaches on their mobility, social interaction & freedom of choice. It is a presumption in the society that when a Hindu woman marries a Muslim man, such man would have forced her to do so and the society contemplates it as a crime, even if the marriage is solemnized consensually, which consequently gives rise to barbaric acts of honor killing. This Ordinance of 2020 does nothing but seeks to legalize violence committed by family on persons who transgress the boundaries of religion. Thus it is a perfect paradigm of curtailing the freedom of choice of one’s life partner irrespective of caste community. The Hon’ble Supreme Court had also reiterated the same in Shafin Jahan v. Ashokan K.M.[2] wherein the court observed that the right to marry a person of one’s choice, irrespective of caste, community, creed, etc. is an intrinsic part of Article 21[3]. What this ordinance provides is a question as to why the people in power hate to love so fiercely? The obvious answer to it could be the Supremacy of Hindu ideologies which puts the other communities especially the Islam community at a lower footing and this is not the first time, the imposition of the Citizenship Amendment Act last year is a piece of perfect evidence in this regard that resembled a Muslim as a second class citizen in India. This Ordinance of 2020 is yet another control mechanism to target a particular community and to impose the choice of the State. Thus the ‘love jihad’ law is an onslaught on choice; on freedom; on privacy; on dignity; on the equality of man and woman; and on the right to love or live together or marry.[4]

CONSTITUIONAL WATERS OF THIS LAW

There are many aspects on the basis of which the constitutionality of the ordinance of 2020 can be adjudged. The primary aspect which should be taken into consideration is that whether it is really an Ordinance? What gives rise to this doubt is the bare reading of Article 213 under Chapter IV of the Constitution of India. The Article confers upon the Governor the power to promulgate Ordinances during recess of Legislature; however this power is subject to certain requisites laid down by the Article itself. These conditions are as following:

  1. An Ordinance may be promulgated by the governor only when the Legislative Assembly of the State or where there is Legislative Council in a State, then, when both the houses are, not in session.
  2. If the Governor is satisfied that it is the need of the hour that he should take immediate action.

Thus, the above two conditions are sine qua non to exercise the legislative power by the Governor under this Article. However, in the present scenario, the existence of any exigent situations is imperceptible. This is evident from the report submitted by the Special Investigation Team (S.I.T) which was formulated to probe into the cases of forceful conversion by marriage[5]. Thus the investigation has turned out to be damp squib for the Uttar Pradesh government.  However for a layman the investigation results as an inference that there is no concrete proof of rising cases of unconsensual conversion of religion by marriage and moreover, there were no facts or evidences cited by the government on the same thus what can be inferred is that there was no such need right now of promulgating this ordinance by escaping the regular law making procedure therefore the use of legislative power for hastily passing of ordinances without any justifiable cause or urgency is unconstitutional.[6] Even the former judge of Supreme Court Justice Madan B Lokur criticized the said ordinance and has pointed out the illegal practice of power under Article 213 & is of view that there is no way this ordinance can sustain.[7]

ENCROACHMENT TO PRIVACY AND RIGHT TO CONSCIENCE

The unanimous judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India[8]  is a resounding victory on privacy as it had held that Right to Privacy is an intrinsic part of Right to Life & Personal Liberty under Article 21 of the Constitution of India. The court had observed that liberty enables an individual to decide various facets of life including what & how one prefers to eat, dress, the faith one follows and other matters on which autonomy & self-determination require a choice to be made within the privacy of mind. This ordinance of 2020 is undoubtedly a threat to the privacy of its citizens. It makes compulsory for a citizen to publicly inform the District Magistrate before conversion of religion and such info will be subject to enquiry & subsequent investigation thus the State which should be determined towards protecting its citizens fundamental rights itself is encroaching to their personal autonomy. By making inter-faith marriage a public figure to be sanctioned by the State, the government is directly interfering into the personal lives of individuals thereby seeking to control the cultural & social aspirations of the people as conversion cannot be a matter of Administrative and public scrutiny. In Shakti Vahini v. Union of India[9]  the former CJI Justice Dipak Misra had remarked that “When two adults marry out of their volition, they choose their path and they have right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.” The unreasonable intrusion of State to discredit wedlock’s violates this very right to privacy and disempowers individuals.

Article 25 of the constitution lays down freedom of conscience & free profession, practice & propagation of religion. The right to conscience is independent of right to religion it means that an individual may not have any religious beliefs but he is free to exercise his right of conscience. Thus, if an individual has certain beliefs towards his or her religion although ethically or morally incorrect but not against the cardinal principles of our Constitution then he is free to practice his beliefs without any hindrance and in case of any impediment the State is bound to uphold the rights of its citizen. Thus the paramount question here arises that how can a state impose restrictions on a person’s right to conscience which could entail religious conversion?

In Rev Stanislaus v. Madhya Pradesh[10], the Madhya Pradesh High Court accepted that the anti-conversion law is essentially a law to protect public order so also the Supreme Court looked at the religious conversion from the prism of public order. However the court lacked behind in taking into consideration that by framing a matter of personal liberty as that of public order, the privacy rights will be compromised. If some communal elements create a situation of public order because two individuals chose to marry, the duty of the State should be to prevent such intimidations & infringement of rights of such individuals and not to go into a digging expedition to determine the validity of someone’s belief.

In Smt Noor Jahan Begum v. State of U.P.[11] the Allahabad High Court observed that if a conversion is not inspired by religious feeling and there is not a change of heart and honest conviction in the tenets of new religion in lieu of tenets of the original religion, the conversion shall not be bonafide. In another case of Priyanshi v. State of U.P.[12]  the Allahabad High Court followed the precedent laid down in the Noor Jahan Case. However both these decisions were overturned by the Allahabad High Court on 11 November 2020, in the matter of Salamat Ansari and Ors v. State of Uttar Pradesh[13] wherein the division bench observed that none of the above cases dealt with the matter of life &liberty of two matured individuals in choosing a partner or their right to freedom of choice as to whom they would like to live with. Thus the Court held the judgments of Noor Jahan and Priyanshi as not laying good law.

PROPORTIONALITY

It may be argued that conversion for the sole purpose of marriage or marriage for the sole purpose of conversion may be morally & ethically wrong. But is criminalizing it a proportional outcome? The answer to this question was given by Justice Indu Malhotra in Joseph Shine v. Union of India[14] wherein she opined that a law with penal consequences and with overriding effect upon the individual rights, would be justified only when the society is directly impacted by such conduct, keeping in view the respect for the autonomy of the individual to make his/ her personal choices. Under the right to privacy judgment it has been laid down that a law could not be such which can infringe privacy rights of its citizens unreasonably and without any justifiable reasons. Thus any such law would be regarded as no good law if it is not proportionate enough to ensure a rational nexus between the procedure & object sought to be achieved.

The ordinance fails to address the necessity and reason to hold such marriages void, and force couples to give rigorous undertakings to go through something as personal as marriage. It even lays down the concept of reverse burden of Proof, thus the person who facilitated the conversion would need to prove that it was not forced disregarding the woman’s testimony. This is direct violation of the right to be deemed innocent until proven guilty.

Thus, this ordinance is not the result of some sympathy for women, but with the sole purpose of stopping conversion & inter-religious unions.


[1] Hereinafter to be read as the Ordinance of 2020.

[2] Crl.A 366/2018 (arising out of SLP (Crl.) 5777/2017)

[3] Protection of Life & Personal Liberty.

[4] https://indianexpress.com/article/opinion/columns/constitution-law-modi-govt-p-chidambaram-7093190/

[5] https://www.nationalheraldindia.com/national/no-conspiracy-found-in-love-jihad-cases-in-uttar-pradesh, accessed on 4th January 2021 at 3.26 pm.

[6] R.C. Cooper v. Union of India, AIR 1970 SC 564.

[7] https://www.newindianexpress.com/nation/2020/dec/23/ups-anti-conversion-law-cannot-be-sustained-contains-many-defects-says-ex-sc-judge-lokur-2240039.html, accessed on 4th January 2021 at 8.20pm.

[8] (2017) 10 SCC 1.

[9] 2018 AIR SC 1601

[10] 1977 SCR (2) 611.

[11] W.P. (Civ.) No. 57068 of 2014.

[12] Writ C no. 14288 of 2020.

[13] Cri. Misc. W.P. no. 11367 of 2020.

[14] 2018 SCC OnLine SC 1676

The Medical Termination of Pregnancy(Amendment) Bill, 2020

The Union Cabinet has done well to approve a bill that seeks to amend India’s outmoded abortion law. Slated befor the Parliament, if it gets the nod, the piece of legislation will amend the Medical Termination of Pregnancy Act, 1971.

What changes will take place in The MTP Act, 1971 if the bill gets the parliament’s Sanction?

1. The Bill seeks to increase the upper gestation limit from 20 to 24 weeks for termination of pregnancy.

2. The above provision will also be applicable on the unmarried women and therefore, relaxing one of the regressive clauses of the 1971 Act: single women couldn’t cite contraceptive failure as a reason for seeking termination of pregnancy.

3. It also has a provision to protect the privacy of the person seeking abortion.

4. The ante-diluvian preference for a male child keeps sex determination centres in business in spite of their illegal status. Thus the litmus test of the the proposed MTP law’s claims to being women-centric lies in addressing all such concerns.

Criticisms to the MTP Act 1971

1. The MTP Act, 1971 was replete with unclear language, which resulted in doctors refusing to perform abortions even within the stipulated 20 weeks gestation limit.

2. It failed to keep pace with the advances in Medical technology that allow for the removal of a foetus at a relatively advanced state of pregnancy. Moreover, a number of foetus abnormalities are detected after the 20th week, often turning a wanted pregnancy into an unwanted one.

 

Curative Petition

Curative petition is the last constitutional remedy available to a person whose review petition has been dismissed by the Supreme Court.

Though the Constitution explicitly speaks about the review power of the Supreme Court under Article 137, it is silent about ‘curative power’.

The curative petition was given shape and form in the case of Rupa Ashok Hurra v. Ashok Hurra & Anr.,where the apex court reconsidered its judgment in exercise of its inherent power to prevent abuse of its process and to cure a gross miscarriage of justice.

It was explained in the said decision that the curative power of the Court flows from Article 142 of the Constitution, which gives Court power to do complete justice.

“The Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power”, observed the 5-judge bench in that case.

The apex court, in this case, observed that the powers conferred on the court by the said article is curative in nature and cannot be interpreted as powers which authorize the court to ignore substantive rights of a litigant while dealing with a case pending before it. This power of the court cannot be used to replace the essential law applicable to the case or case under consideration of the court.

” We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error.”

When can a person apply for curative petition?

A petitioner is entitled to relief under curative petition, if he establishes:

(i) violation of principles of natural justice where he was not a party to the lis but the judgement adversely affected his interests.

(ii) he was a party to the lis, but he was not served with notice of the proceedings and the matter proceeded as if he has the choice.

(iii) wherein the proceedings a Learned Judge failed to disclose his connection with the subject-matter.

(iv) the parties giving scope for an apprehension of bias and the judgement adversely affects petitioner.

In the curative petition thus filed, the petitioner shall assert the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition should also contain a certification by a Senior Advocate with regard to the fulfilment of the above requirements.

A curative petition is usually decided by judges in chamber, unless a specific request for an open-court hearing is allowed.

Another speciality is that, there is no limitation period for curative petition. But the Court has said that it must be filed within a “reasonable time”.

 

LEGALITY OF PROSTITUTION IN INDIA

Since ages together even Vedas have mentioned about the work and conditions of workers that provide services that satisfy a man’s lust in the form of carnal desire.  Kamasutra is one of those scriptures which actually provide recognition of the role of prostitutes. However, many Hindus consider the Kamasutra as an “obscene book”, and some even go as far as denying its uprightness as a Vedic scripture.

In fact, the Kamasutra currently available was amassed by Vatsyayana Rishi on the teachings of Nandikesvara, the same cohort of Shiva Mahadeva who also educated the Natya shastras. However, with the period of time mentality of the people have differed from each other in variety of ways. While some people consider that such workers should also be granted with equal rights in terms of dignity and their profession be legalized. However, some contend that their work is illegitimate and should in any consequence be not recognized. They also have the requisite right to practice their profession freely as imbibed under Article 14 of our Indian Constitution. We also fail to recognize the fact that even males are involved in this profession. However, the worst affected remains the women.

Even after being a party to so many international conventions on the rights of women and also has a constitution in place which prohibits discernment and abuse on the basis of gender, it has failed miserably to protect rights of women specifically those of sex workers.

The issue not being legalized in many parts of world, and is as such; of transnational in nature has created a complex web of crimes and illegitimate activities which are wholly dependent on each other. With India being one of those countries not giving proper mechanism for the redressal of grievances posed in the lives of sex workers such as harassment, torture, inhumane conditions of living, forced and incomplete abortions and inadequate wage, no proper channel for HIV testing and most importantly the ‘social stigma’ the workers and their family have to face while carrying about their daily errands.

It is legal in India as under section 377 of Criminal Procedure Code. However, no of related activities such as pimping in public, kerb crawling, owning or managing a brothel, prostitution in a hotel and pandering are rendered as crimes! Then how are we supposed to really bring about the pre-requisite change. Right to freely practice one’s profession as inscribed as “Right to freedom” under Article 22 is being violated indiscriminately here in this case.

Many parts of the country even after being developed and so much progress economically and politically still fail to acknowledge the prevailing mistreatment of sex workers in their areas. For instance Mumbai has witnessed a sharp increase in police crackdowns and higher rents are driving the commercial sex industry out of traditional red-light areas and underground, with calls on Friday from social workers to not put the lives of the sex workers at a danger.

Now, the profession has become lesser institutionalized and, lesser recognized and is much more dishonest and subtle now.

In recent times, even foreigners have started to carry out their prostitution businesses in India. However, unfortunately, they are being curbed by the Indian Authorities to actually do so. In 2015 ten Thai women were arrested in India on prostitution charges for allegedly running two brothels masquerading as massage parlors.

Even though women have been earning their due places in their respective professions but this one seems to lack behind and is even discouraged by the government, society and their families at large. This social evil is not only prevailing in India but also in the world at large.

Many international institutions like Amnesty International have been making their voices heard, and are also developing consultation to develop a policy to protect human rights of the sex workers. But the point of discussion remains as to, “How we can make this profession socially acceptable?

Civil Society of India Fights Back

The terms of relation between the government and people have become different as it was since last five years. The government everytime defends itself from the criticisms faced by it through its citizens however this has not been the scenario in the case of Citizenship Amendment Act. Today the people of our country mainly comprising student from universities and colleges have started to agitate towards the new act introduced by the BJP government in order to support and strive to protect the Constitutional Supremacy and the secular character of the Indian Constitution. The fact which can be laid before the society is that it will not tolerate any policy that violates the democratic and secular ethos of the nation, thus the clear message from the side of student is crystal clear that the rulers are not allowed to tamper with the Constitutional principles that were enshrined by our forefathers during their strive for freedom.

There have been several examples of the civil society acquiring a ruffled avatar in order to remove monarchies, dictatorships and tyrannies. After 1989 and the Velvet revolution in Eastern Europe, mobilisation of civil societies against undemocratic government can’t be left untouched. In 2006 in Nepal, a massive anti-monarchy movement developed into a pro-democracy movement and brought an end to rulers who had claimed the divine right to rule. The most spectacular assertions of civil society occurred in Tunisia, Egypt, Syria, Yemen and many other places which cannot be counted.

Thus the mobilisation of civil societies have always had an impact upon the government and its a positive side and enough to see the increase of people agitating against the law negative to the Constitutional norms. Mahatma Gandhi had taught that if citizens wish to oppose a law that they regard to be unreasonable, unjust and against the interest of the Constitutional principles, then the peaceful and non-violent way to resist such law can be done through civil disobedience. Thus lastly i would only say, by standing together in this civil disobedience, citizens of every faith and religion uphold the character of fraternity, one of the core elements enshrined under the preamble of our Constitution, leading to a sentiment of brotherhood with each other and to stand at the time of injustice with the emotion that derive that injustice to my countrymen and women is injustice to me.

Time to make India a ‘NO RESERVATION’ country.

 

 

PS

 

Whenever i hear the word ‘reservation’ the first thing which comes to my mind is reservation of seats in buses, trains, planes etc. But there is also this other category which is related to reservation in education system, in jobs through quotas. Reservation in India contains a measure to reserve the seats to government jobs, in education institutions and in various legislatures for backward classes such as Scheduled Caste and scheduled Tribes i.e. SCs and STs. by our government.

It is just a gameplan by the government to save there vote banks. Politicians will never allow to remove this system from our country as they will never understand what it is to get higher education in India because their own children go to the US, UK, Australia, Europe and other foreign countries for education. The government is doing all this because it doesn’t want its vote bank to go to other parties as approx. 66 percent is the literacy rate among scheduled castes. Giving them a bait like reservation is an easy way to get those votes.

How can anyone forget what democracy stands for? Is it about dividing people along caste or religion or state or color or quota? There will be time when every religion will have its own quota system. How will that be countered? Dr Ambedkar said reservation should be discontinued after 15 years but politicians are continuing with this to further their vote bank.

Until 1990 there was only 22 percent reservations out of which 20 percent was for SCs and 2 percent for STs for admissions and jobs in most of India but later in that year came the announcement by the then Prime Minister V.P. Singh who accepted the report of Mandal Commission recommending to grant 27 percent reservation to OBCs, which made the total reservation upto 49.5 percent.

The reservation for OBCs was challenged before the Supreme Court in the case of Indra Sawhney V. Union of India but it was upheld in 1992. Before independence in 1947 there was system of zamindari in which the upper castes were the owners and the OBCs i.e. Yadavas and Kurmis were their tenant. At that point of time almost all the Yadavas and Kurmis were poor and uneducated but after the Independence, the zamindari system was abolished due to which Yadavas and Kurmis became the land owners and which helped them to educate their children and now Yadavas and Kurmis are engineers, doctors, lawyers i.e. they have become educated and rich hence they cannot be called backward. So, when Yadavas and kurmis were really backward that is before Independence they were not given reservation and now when they are not backward they are being given reservation. Ofcourse there are many OBCs who are poor and illiterate too, but for that matter there are many brahmins and Rajput who are also poor and uneducated. I have read somewhere that Jawaharlal Nehru ji said that there should be no reservation in our country as every person is unique and our Constitution also does not provide any provision or any article which says India should have reservation. It’s only the mindset of  the people of our country which should be changed as soon as possible.

 

 

CYBER LAW

cyber law

BIRTH OF INTERNET LITIGATION

The United States defense department’s ARPANET began the internet and designed it to link computer networks to various radio and satellite networks with all over the world. The first judicial opinion to mention the internet was United States V. Morris (1991)

CYBER LAW

The concept of law refers to the rule of law which is required to protect the human being in the society. Applying it to the cyberspace we can say that computers are impuissant,  so the rule of law is required to preserve and safeguard them against cyber crimes.

Cyber crime is an unlawful acts wherein the computer is either a tool or a target or both. Cyber crimes involves criminal activities that are traditional in nature, like fraud, defamation, forgery, theft and mischief and all these criminal activities are subject to the Indian Penal Code. The abuse and misuse of computer networks have also given birth to a new age crime that are addressed by The Information Technology Act, 2000. Cyber crimes can be categorized in two ways

  1. Using a computer to attack other computers that is using computer as a target.           e.g. Hacking, E-mail bombing, Virus attacks etc.
  2. Using computer as a weapon that is using computer to commit real world crime.       e.g. Cyber terrorism, Credit card fraud, IPR violations etc.

MODES OF COMMITTING CYBER CRIMES

  1. Hacking i.e. unauthorized access to computer systems or networks without the permission of rightful owner of the system. Every act committed towards breaking into a computer system or network is hacking. Hacking a web server of another persons website is called as web hijacking. Hackers either write or use ready made computer programs to attack the target computer. Some hackers hack for personal monetary gains such as stealing credit card information or transferring money from various bank accounts to their own accounts.
  2. Virus attacks it refers to a program which has the capability to affect other programs and make copies of itself and spread it into other programs is called virus.
  3. E-mails related crimes like e-mail spoofing which refers to emails that appears to be originated from one source but is been actually sent from another source. E-mail spamming is another problem which refers to sending of e-mails with malicious codes to thousands of users. E-mail bombing refers to repeatedly sending of identical e-mails by the abusers to a particular address.
  4. Trojan attack are pieces of malware allowing a hacker to remote access a computer system. They are not self-replicating and are not automated in that they need direction interaction with a hacker to fulfill their purpose.

The Information Technology Act, 2000 was undoubtedly a welcome step at a time when there was no legislation on this specialized field. The Act however during its application has proved to be inadequate to a certain extents. The loopholes in the acts was that the legislation was passed, without sufficient public debate which did not really serve the desired purpose. According to experts the reason for the inadequacy of the legislation was because of the parliament which passed this act quite hurriedly and it was also not given sufficient time for public debate.