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COMPARATIVE ANALYSIS OF VARIOUS THEORIES OF PUNISHMENT

- ARPITA TRIPATHY

ABSTRACT

In this article the comparative analysis of various theories of punishment are provided.
The various theories of punishment are: The Deterrent Theory, the Retributive Theory,
the Preventive Theory and the Reformative Theory. The paper focuses on critically
analysing all the theories and providing a comparative analysis in the end. Austin
considered sanction as an important and essential ingredient of law and sanction was
nothing but inflicting injury upon the wrong doer and this in way was called
punishment. Punishment was considered as a social custom the punishment can only be
given after a proper criminal justice process. The main objective behind this is to
highlight the different forms of punishment, their effectiveness demerits if any and
purpose.

INTRODUCTION

Crime denotes any unlawful act which is punishable by law. Punishment according to
dictionary definition, involves the infliction of pain or forfeiture, it is the infliction of a
penalty by the judicial arm of the state. The main objective or the sole purpose of
punishment is to cause physical pain to the wrong doer. The punishment is given to the
offender to realize the gravity of the wrong committed by him and to make him feel
guilty of his act. Walier Reckless in his book titled “Criminal Behaviour” describes
punishment as “the redress that the commonwealth takes against an offending
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member.”1 Punishment is some sort of social censure and not necessarily involving
physical pain. Various reasons justify punishment but criminal law as sanctions has one
important object, is to eradicate the self-help and private sanctions.

The various theories of punishment are namely: The Deterrent theory, the Reformative
theory, the Retributive theory and the Preventive theory.

THE DETERRENT THEORY OF PUNISHMENT

According to this theory, the main aim behind punishment should be to deter the
prospective of the criminals. The offender or the wrong doer should be punished to set
an example so that the prospective offenders may see the consequences they may have
to face. Deterrent theory mainly uses the punishment to prevent the wrong doer from
repeating the offense and hold example for others so that they do not follow the same.
The term deterrence is mainly used in 2 senses: firstly, punishment of the wrong doer
will deter others from committing the crime for which he/she is convicted and secondly,
the punishment will deter the person who is guilty of an offence from committing
further crimes. According to Norton, “The purpose of punishment being something
other than total retaliation, Beccaria concerned himself with the limits and consistency
of punishment. The amount of punishment, he felt, should be defined by the legislature,
and the courts left without discretion. Further, the legislature should determine this
according to two factors: the destructiveness of the crime to public safety and happiness,
and the inherent inducements present in the crime.” 2 The deterrent theory has been
criticised for many reasons. Some of the examples where the failure of punishment as a
deterrent to crime is the countries where capital punishment has been imposed but still

1
Crime and Theories of Punishment. Available at: https://shodhganga.inflibnet.ac.in/bitstream/10603.
2
Jerry E. Norton, “The Punishment Debate” 44 Chi.-Kent L. Rev. 85 (1967)
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the amount of crimes taking place remains the same. Considering the alarming increase
in kidnapping of young children, the Supreme Court observed that in cases relating to
kidnapping the wrong doer must be dealt with the harshest possible manner but still the
gravity of offence remains the same. The deterrence theory has failed to prove whether
the punishments really deter crimes. In India today, despite of providing rigorous
punishment for rape cases, dowry cases, riot cases still they continue to happen. But, the
Supreme Court in Maru Ram’s case 3 justified deterrent theory and observed that if in the
present disturbed atmosphere if deterrent punishment is not resorted then there will be
complete chaos in the entire country and the criminals will let start endangering lives of
thousands of innocent people of our country.

THE REFORMATIVE THEORY OF PUNISHMENT

According to reformative theory of punishment, a crime is committed as a result of the

conflict. The reformative theory aims to strengthen the character of the main and so that
he may not become an easy victim to his own mistake. The theory considers the
punishment to be curative or as it should act like a medicine. This theory considers
crime like a disease and tries to maintain that one cannot be cured by killing. The
reformative theory tries to re-educate and re-shape the wrong doer into a new
personality and the ultimate aim is to try to bring about a change in the personality and
character of the wrong-doer and make the offender as a useful member of society. The
reformative element has been long neglected in the past. Transformation is more
important and should not be overlooked. Specially in the cases where the offenders are
young or first offenders, they should be given chances of long reformation and also the
reformative theory is more likely to succeed in educated and orderly societies than in

3
Maru Ram Etc. vs Union of India & Anr AIR 1980 SC 2147
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turbulent or under- developed societies or communities. In Indian scenario, reformative

methods are being very helpful and useful in cases of juvenile delinquency. Sex
psychopaths have seemed to respond favourably to the reformative method of
punishment. The reformative theory is being extensively used as a method of treatment
of mentally deprived offenders. In the case of Narotam Singh v State of Punjab 4, the
Supreme Court rightly said that the reformative approach to punishment should be the
object of criminal law as it promotes rehabilitation without offending community
conscience and serves social justice. However, in M.H. Hoskot v. the State of
Maharashtra5, the Supreme Court cautioned the judiciary for showing more lenience to
offenders based on the reformative theory that would amount injustice to the society.
Offences like serious economic offences give rise to a need for balance between the
security of the society and rights of the offenders. Some criticisms which the theory face
is that not all criminals can be automatically transformed into improved citizens of the
society. Some offenders are so corrupt, base and mean persons that they cannot be set
right even by all possible human agencies. The reformatory theory will fail for such
offenders.

THE RETRIBUTIVE THEORY OF PUNISHMENT

Retribution basically means that the wrongdoer pays for his wrongdoing, since a person
who is wronged would like to avenge himself, the State considers it necessary to inflict
some pain or injury on the wrongdoer in order to otherwise prevent private vengeance.
Whereas other theories regard punishment as a means to some other end the retributive
theory looks on it as an end in itself. It regards it as perfectly legitimate that evil should
be returned for evil, and that a man should be dealt with the manner in which he deals

4
(1974) 4 SCC 505
5
AIR 1973 SC 1548
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with others. An eye for an eye and a tooth for a tooth is deemed to be the rule of natural
justice. Though the system of private revenge has been suppressed, the instincts and
emotions that lay at the root of these feelings are yet present in human nature. Therefore,
according to this theory, the moral satisfaction that society obtains from punishment
cannot be ignored. On the other hand, if the criminal is treated very leniently, or even in
the midst of luxury, as the reformative theory would have it. The retributive theory
ignores the causes of the crime, and it does not strike at the removal of the causes. A
mere moral indignation can hardly prevent crime. It is quite possible that the criminal is
as much a victim of circumstances as the victim himself might have been. It is also
unfortunate that this theory overlooks the fact that two wrongs do not really make a
right. The theory also seems to ignore that if vengeance is the spirit of punishment,
violence will be a way of prison life. In the case of Bishnu Deo Shaw v State of West
Bengal6 Justice Chinnappa Reddy stated, “The retributive theory is incongruous in an
era of enlightenment. It is inadequate as a theory since it does not attempt to justify
punishment by any beneficial results either to the society or to the persons punished.”
Justice Krishna Iyer also expressed his disapproval of the retributive theory in Rajendra
Prasad case7. He said: “Punishment is not eye for an eye of retributive genre. To be
strictly retributive, the same type of cruel killing must be imposed on the killer.
Secondly, can the hanging of the murderer bring the murdered back to life? To suffer
punishment is to pay a debt due to the law that has been violated. As per this formula,
guilt plus punishment is equal to innocence. According to this view of the retributive
theory, the penalty is a debt which the offender owes to his victim, and when the
punishment has been endured, the debt is paid, and the legal bond forged by the crime is
dissolved. Therefore, the object of true punishment must be to substitute justice for
injustice, to compel the wrong-doer to restore to the injured person that which is his

6
(1979) 3 SCC 714
7
Rajendra Prasad v. State of U.P., (1979) 3 SCC 646.
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own, and by such restoration and repentance, the spirit of vengeance of the victim is to
be satisfied.

THE PREVENTIVE THEORY OF PUNISHMENT

The deterrent theory tries to put an end to the crime by creating fear of the punishment
in the mind of the wrong doer but the preventive theory aims at preventing the crime by
disabling the wrong doer. Preventive theory creates a fear in the mind of others as
disabling the wrong doer gives a sense of fear. For example: if a person has murdered a
man then death penalty is inflicted on the accused or putting him behind the bars for an
indefinite period of time. The deterrent and preventive theory are in some ways related
like the deterrent theory aims at giving warning to society whereas the preventive theory
aims at disabling the accused from doing further any criminal. The preventive ways of
punishment work in 3 ways: Firstly, by inspiring all wrong doers by the fear of rigorous
punishment, secondly by disabling the wrong doer immediately after committing the
crime and thirdly by transforming the offender by process of reformation or
rehabilitation so that the wrong doer do not commit the crime again. The Supreme Court
in Delhi domestic working women’s forum v. Union of India and others, 8 made
remarkable direction to the National Commission for Women to draft scheme under
which victim of rape would be given compensation even though accused is not
convicted. The same should be sent to Union of India for its implementation within six
months. The main criticism of the theory is that despite of punishments being rigorous
still the fear of the punishment has not decreased the crimes and they are still occurring
in the country.

8
(1995) 1 SCC 15
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ANALYSIS

As discussed above the various theories of punishment. The common object among all
the 4 theories, i.e., the deterrent theory, the reformative theory, the retributive theory and
the preventive theory is to provide an adequate punishment and prevent the happenings
of the crimes. But there lies thin line of difference between them. The deterrent theory
aims at giving a warning to the society at large that crime shall not be repeated.
Whereas, Preventive theory aims at disabling the actual criminal from doing harm.
Deterrent theory points out to the offender and the rest of the world that ultimately
punishment follows the crime and therefore crime should be avoided. But in the case of
Preventive theory, it does not act so much on the motive of the wrongdoer but disables
his physical power to commit the offence. The Retributive theory is based on the
principle of “eye for an eye” or “tooth for a tooth” and it accorded exclusive recognition
in the ancient time. It suggested that the evil should be returned to evil without any
regard to consequences. The punishment needs to be in proportionality of the gravity of
crime. This theory is also regarded as the anarchic theory. Whereas, the Reformative
theory emphasises on reformation of offenders through the method of individualisation.
It is based on the humanistic principle that even if an offender commits a crime, he does
not cease to be a human being. All the above discussed theories contend that by a
sympathetic and tactful treatment of the offenders, a revolutionary change might be
brought about in their characters. It should be believed that no human being is born as a
criminal and so before providing any form of punishment the degree of the crime should
be checked and if possible the change in the offender should be bought by changing the
situation and the environment and adapting the offender to a different new environment.
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CONCLUSION

The justification of punishment possesses one of the most difficult jurisprudential

issues. The various theories of punishment are prevalent in various ages and different
theories are adopted by different countries based on their culture and society. It is also
felt that punishing the guilty with too severe punishment is not proper but also on the
other hand it is still cruel to leave the innocent to suffer. The punishment must be
efficient enough to act as a deterrent but also not very harsh and severe to act brutal. In
criminal justice it is always believed that “Justice delayed is justice denied” and
“Hurried justice is buried justice”. There should be a balance between the two. Each
theory of punishment has its own merits and demerits. Therefore, in the present the
criminal justice would not be proper to only rely on the theories of punishment. In India,
the Indian Penal Code 1860, prescribes different kind of punishment such as death, life
imprisonment, fine. The IPC is made to work flexibly and leaves the decision giving
power in the hands of judiciary. In the case of Dr Jacob George v State of Kerala 9, the
Supreme Court held that the very aim of punishment should be deterrent, reformative,
preventive retributive and compensatory and not only one particular theory should be
focussed on. Criminals and other wrong doers are very much part of our society and the
society should reform and correct them. If not at all possible the state has to be involved
to punish the offender in the name of reform and correction. Therefore, the theories of
punishment have added much efficiency, satisfying effect in the criminal justice system
of the country.

9
(1994) SCC 3 430
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CHALLENGES BEFORE CHILD LABOUR

- DR. NAVJOT KAUR

“The child is a soul with a being, a nature and capacities of its own who must be
helped to find them, to grow into their maturely into a fullness of physical and vital
energy and the utmost breadth, depth and height of its emotional, intellectual and
spiritual being, otherwise these children cannot be a healthy growth of the nation.”
1

- Justice P.N. Bhagwati

Former Chief Justice of India

INTRODUCTION

Children are the most precious gift of God. They are universally recognized as one of
the important and greatest assets and the future of very nation is associated with the
prospects of its children. Such prospective children ought to be raised in an environment
wherein sustained opportunities of education and training are accessible, conducive to
their social, moral and physical development. 2 It is a universally recognized fact that
children are the blooming flowers in the garden of society. They are the most valuable
assets of the nation and their importance in nation building process cannot be
undermined. Children of today are the potential citizens of tomorrow. The quality of life

1
Sheelu Srivastva, "Child Labour as a Socio-Economic Problem in India", in Mahaveer Jain and Sangeeta
Saraswat (ed.), Child Labour from Different Perspectives, Manak Publications. Pvt. Ltd. Delhi. 2006, p.1.
2
Nirmala Krishnamoorthy, Children in India-A Legal Perspective, Ministry of Information and
Broadcasting, Government of India, 2009, p. I.
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they enjoy today would ultimately determine the quality of future population of the
nation.3

Basically, children are like mirror who reflect the future image of a nation. 4 Children are
not only the future of any nation but also strength in reserve for a nation. They are the
crops which feed the future. If they are healthy and active, educated and informed,
disciplined and trained, the future of a nation is well insured, and if they are wanting in
above aspects the future of the nation is doomed to disaster.5 A child is an asset as well
as a liability to the parents, society and to the nation as a whole. 6 Regarding liability of
the children, the Supreme Court Judge Ruma Paul said while addressing a gathering of
lawyers, Jurists and Judges that, ensuring justice to children is the responsibility of
every citizen, every institution and every limb of the Government. 7 Thus, it is the duty
of everyone to fight against child labour.

It is quite shocking that these blooming flowers are neglected. Due to certain forces and
circumstances children are compelled to work in the early stages of their children which
does harm to the child and the society both.8 The problem of child labour is a burning
problem of the world. From time immemorial it had been a concern of the social
reformers, the priests, the legislators, the jurists, the philosophers, the politicians and
economics etc.9 The practice of children being exploited and forced into labour, thus

3
Ashhad Ahmad, Child Labour in India-A politico-Legal Study, Kalpaz Publications, Delhi. 2004, p.21.
4
Abdul Majid, Legal Protection to Unorganized Labour, Deep and Deep Publications Pvt. Ltd., New
Delhi 2000. p. 42.
5
Ibid.
6
Tapan Kumar Shandilya and Nayan Kumar et. al., Child Labour Eradication, Deep and deep Publication
Pvt. Ltd., New Delhi, 2006, p.6.
7
The Times of India, 10th June, 2003.
8
M.S. Raj and D.J. Chauhan, "Child Labour in India: Causes, Magnitude and Way-out" in Raj Kumar Sen
and Asis Dasgupta (ed.), Problems of Child Labour
9
S.S. Chinna, Child Labour, Problem and Policy Implications, Regal Publication, New Delhi, 2009, p.1.
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depriving them of education, which is so crucial to their personal development is an

issue of major concern.10

DEFINITIONS OF CHILD LABOUR

The term 'Child Labour' is used as a synonym for 'employed child' or 'working child'.
However, child labour can be defined as that segment of the child population which
participate in work either paid or unpaid. 11 To understand the term child labour, it is
very essential to understand the meaning of the word 'Child'. General meaning of this
word is, that child is who cannot understand the technicalities of law or who is mentally
or physically not mature. Child is undoubtedly a 'minor' but all minor are not children.
The word child is defined in various enactments and referred to differently for different
purposes. Therefore, the Child Labour Act, 1986 clarified, identified and defined the
term 'child' to mean one who has not completed the age of 14 years. For clarity, it may
be noted that minor is one who has not completed the age of 18 years and the child is
one who has not completed the age of 14 years. 12

CAUSES OF CHILD LABOUR

Child labour is a socio-economic problem. There are many reasons for the occurrence of
child labour like unemployment, large family size, illiteracy and ignorance of parents,
lack of educational facilities etc which play an important role for the children's entry in
the field of work. Some prominent reasons are as follows:

10
Ibid.
11
Suresh Chander, Child Labour in Informal Sector: A sociological study. Sun Rise Publications, New
Delhi, 2004, p.63.
12
Labour and Industrial Cases 2009, Vol. 2 (2009) pp. 191-192.
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Poverty

Poverty is the single most important factor contributing to the fast growth of child
labour. Actually it is the only root cause of the child labour. No parents want to send
their child for labour. No parents want to send their child for labour 13 but they are
compelled by the poverty and unfulfilment of their needs. 14 Poverty makes the parents
send their children to seek employment at an early age, as their earnings are essential for
the survival of the family. Parents do not have the means to support and educate them;
they want them to start earning as soon as possible.15

Poverty and lack of awareness make scores of children across Bihar fall victim to the
vicious cycle of trafficking and exploitation every year. 16 The jobs being highly
monotonous, tedious and unskilled, the working children are generally compelled to
remain in low paid jobs for the rest of their life. The children, thus, can gain neither
training nor education nor can they earn higher income in their adult life. The
households of child labour remain in vicious circle of poverty from one generation to the
other. Poverty is at the root of all causes because "Poverty gives birth to Poverty".
Children work even in unjust conditions when the income of their family is not
sufficient to meet the basic requirements of the family. Thus poverty is the cause as well
as consequence of the child labour.17 Labour is worship, no doubt, but is must be

13
National Resource Centre on child labour, "Child Labour in India - An Overview", V. V. Giri National
Labour Institute, Noida, p.145.
14
S.S. Chhina, "Child Labour Problem and Policy Implications", Regal Publications, New Delhi, 2009,
p.65.
15
Arbind N. Pandey, "Child Labour" competition refresher, May 2000, p.33.
16
Rahi Gaikwad, "Little Toiling Hands" The Hindu, Oct. 11, 2013.
17
D. Cheena Reddy, Child Labour: A study, Serial Publications, New Delhi, 2007
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expected from and exacted upon those who are fit for it. Misplaced labour is dangerous
to one who does it and to those who get the fruits out of it. 18

CONSTITUTIONAL PROVISIONS

Constitution of the country includes provisions which deal expressly with the protection
and welfare of children. The provisions dealing with protection and welfare of children
are enshrined in part III and part IV are as follows:

● It enables the state to make special provisions for women and children. 19
● Traffic in human beings, begging and similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable
in accordance with law. 20
● No child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.
18
Karishna Aggarwal, "Child Labour A Socio Legal Perspective", Labour and Industrial Cases, Vol. 45,
June, 2012, pp. 87-90.
19
Article 15(3), the Constitution of India.
20
Ibid, Article 23.
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● The state shall direct its policy towards securing the health and strength of
workers, men and women, and the tender age of children are not abused and the
citizens by economic necessity to enter avocations unsuited to their age and
strength.21
● The state shall direct its policy towards securing the health and strength of
workers, men and women, and the tender age of children are not abused and the
citizens by economic necessity to enter avocations unsuited to their age and
strength.22
● The state shall ensure that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that
children and youth are protected against exploitation and against moral and
material abandonment.23
● The state shall endeavor to provide within a period of ten years from the
commencement of this constitution for free and compulsory education for all
children until they complete the age of fourteen years. 24

CHALLENGES BEFORE CHILD LABOUR

The United Nation Convention on the Rights of the Child, 1989 is a milestone in
international human rights legislations, India has also ratified this convention. But India
has not yet ratified the International Labour Organisation Convention No. 138 and 182,
fixing minimum age of employment as 18 years whereas according to Child Labour
(Prohibition & Regulation) Act, 1986, children below the age of 14 years are prohibited
for employment in hazardous occupations/processes specified in the Act. India has given

21
Ibid, Article 24.
22
Ibid, Article 39 (e)
23
Ibid, Article 39(e).
24
Ibid, Article 39(f)
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its own justification for non-ratification. One major flow of international instruments is
that all these conventions are not enforceable and their ratification fully depends upon
the member states.

After independence of the country, constitution makers introduced various provisions in

the constitution for the benefit and security of children. The constitution of India
provides under Article 24 that no child below the age of 14 years shall be employed to
has enacted Child Labour (Prohibition and Regulation) act, 1986 which prohibits the the
Act. Then any action is taken against any employer for employing a child the being
trained for a family trade and so on. Although the Act prohibits the employment of
children in certain hazardous industries and processes, it does not define what hazardous
work is. It only provides a list of hazardous occupations/processes. As a result, there are
several loopholes in the Act.

The implementation of the Act depends entirely on the state's enforcement machinery.
Again, under the law the employer is supposed to notify the Labour Department whether
any child is working in his establishment. It is not possible that the guilty or proved to
be guilt should be notified for their illegal acts to the authorities. Moreover, the onus of
proving the age of the child lies with the prosector, and not the offender. The Act suffers
from some severe weaknesses. The child labour (Prohibition and Regulation) Act, 1986
itself contradicting in its goals, as it provides both prohibition and regulation of child
labour. The Child Labour Act, cannot efficiently control child labour, so, there is
immieate need for amendment of the Act. Despite several proactive legislations, policies
commissions and Committees to deal with child labour in Indi decline in the magnitude
of child labour has been measured less than expected and as a result, the problem
persists as a challenge to the country.
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Education which is an effective remedy against child labor plays a vital role in the life of
human beings. Education brings a revolutionary change in the ideology, thinking vision
of a person. Education makes a person very dynamic and develops in him firm thinking,
creativity, confidence, talent and innovative attitude towards the work.

No doubt, poverty is responsible for child labour but the lack of educational facilities
encourage child labour in rural areas. Top priority should be given to universalization of
elementary education for children between six to fourteen years. Despite the Right to
Free and Compulsory Education Act, universalization of primary education is only a
dream. Parental attitude is mainly responsible for this. They preferred to sent their
children to work than schools. Parents awareness is very much important to eradicate
child labour from grass root level.

Judiciary is playing a very important role to eliminate child labour from the society.
Supreme Court has clarified its view in various judgements that child exploitation will
not be tolerated. In order to tackle the problem of child labour, the constitutional bench
of Supreme Court has declared that the right to education is a fundamental right that
flow from the Right to Life in Article 21 of the Constitution. Every child has a right to
free education up to the age of fourteen years and thereafter the right would be subject to
the limits of the economic capacity of the state.

CONCLUSION & SUGGESTIONS

● Child protection laws must be implemented in their true Spirit to get desired results.
Strict punishment must be given to the offenders for violation of provisions of child
protected laws. Punishment should be enhanced and fine Should be increased upto
50,000.
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● The child labour related offences should be made cognizable offence Under the
Child Labour (Prohibition and Regulation) Act.

● Children and their parents should also be made aware of all the related legislations
especially the Child Labour (Prohibition and Regulation) Act, 1986.

● The Child Labour (Prohibition and Regulation) Act, 1986 concentrates only on
hazardous occupations and processes The need of the hour is to include all type of
work where children are engaged in.

● Minimum Wages should be fixed for child labourers even in unorganized sectors
because in the beginning children are not paid for some months. Uniform Minimum
wages should be provided under the Child Labour (Prohibition and Regulation) Act,
1986.

● More focus should be given to rehabilitation than prohibition. The rehabilitation

programme should come within the jurisdiction of Education Department and Health
Department, along with Labour Development. Coordination in these departments is
a fundamental requirement to achieve this aim.

● National Child Labour Projects must be expanded to large number of Punjab as soon
as possible.

● Laws on child labour and education should be implemented in a mutually supportive

way.

● Every State Government should frame rules under the Right to Education Act, 2009
immediately for the proper implementation of the provisions of the Act, Top p……..
should be given to universalization of elementary education for children between 6-
14 years. Chapter related to child labour should be introduced in text books at all
levels.
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● State government should give more stress on women education. When women will
be educated, trained and empowered, the incidence of child labour by their children
will reduce automatically.

● The Law should impose a duty on the parents/guardians to send the child to school.
Educated parents can provide better social atmosphere to their children.

● The Government should provide more funds for creating educational infrastructure
particularly in the rural areas.

● The main reason of child labour is poverty and excessive population growth, so the
Government should implement family planning policies effectively. Poverty
eradication programmes should be launched by the Government in backward areas.

● Employment should be given to parents of child labour respondents.

● Small industries must be set up in backward areas of Punjab.

● NGOs should initiate the action against child labour at central, state and district
levels to eradicate child labour completely.

● Evening schools should be opened by the State Government with the help of local
NGOs. Sufficient Funds should be given to the NGOs to open school on Sunday and
Saturday. NGOs can organize workshops in the towns and villages to give proper
guidance to children and parents.

● Media should play an important role to make public aware of the rights of Children
There should be proper advertisement of punishment and penalty for employers who
employ child labourers. All the channels of media i.e electronics and Print media
should give more time and space to make the people aware regarding the menace of
child labour.
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● By displaying posters, playing street/ corner plays, prominence can be given to the
issue of child labour. The voice can be raised against child labour Practice through
slogans and speeches etc.
● Vocational training should be provided to child workers at primary level to them
economically independent in their adulthood. It includes handicrafts making of
teddybears, kites, cooking etc.
● Proper guidance may be given to the parents of these child workers. Workshops can
be organized in the towns and villages. State Government should make policies to
control migrant child labour in Punjab at State level. Policies should concentrate on
educational facilities and vocational training for them.

No solution for the elimination of the practice of child labour can be brought about only
through the medium of books, nor could any solution of this problem be found written
in any book. Government should adopt multi-pronged strategy to combat this problem.
It requires strict enforcement of legislations. No doubt, the prevention of exploitation of
child labour is the prime responsibility of the government but it also lies with non-
governmental organisations, social thinkers and with each and every human being in the
society. By united efforts of all these, child labour can be eradicated definitely. It is
humbly submitted that, if all the above suggestions are implemented, the menace of
child labour can be effectively tackled and eventually it can be eradicated. Love,
affection, human warmth and security play a significant role in child’s all round
development. So, the child must be developed in a congenial environment, only then
responsible citizen of tomorrow.
 20 Jus Carta Edition 3 ISBN 978-81-951020-1-3

CHILDREN IN JEOPARDY: AN OVERVIEW OF THE STATUS OF CHILD LABOUR IN INDIA

POST COVID-19 OUTBREAK

- MUSKAAN SHARMA

ABSTRACT

Child labour is the worst form of child abuse. Despite legislative efforts, we have
achieved very little in preserving the rights of children and protecting them from
exploitative labour. Poverty, illiteracy, unemployment and limited accessibility to free
and compulsory education play key roles in exposing these children to unhealthy and
dangerous working conditions. The unorganized informal sector which is the biggest
child labour employer prefers child labour for low costs and flexibilities in hiring and
firing them. In India, millions of children are trafficked everyday to work in hazardous
occupations depriving them of their childhood and undermining their physical and mental
health. The outbreak of the COVID-19 pandemic has intensified the situation and
wreaked havoc on families putting the children at even greater risk. With the increase in
informal businesses exploiting workforce after the lockdown, job losses in the families ,
decline in living standards and insufficient social protection schemes, child labour is
likely to rise in leaps and bounds. India like other Countries have been hit hard by the
crisis and is also contemplating on various policy guidelines and strategies to dissuade
children from embracing child labour. The present paper focuses on the probable impact
of this crisis on the children and proposes measures to counter the threat of child labour.
 21 Jus Carta Edition 3 ISBN 978-81-951020-1-3

INTRODUCTION

Children are the future of tomorrow but it is ironic that violation of rights of children is
ubiquitous even in the 21 st century. Children have been exploited for various reasons
since time immemorial. Although various international and national laws are in place to
protect the rights of children but the victimisation of children still remains a stark reality.
Child labour is one such heinous crime that flourishes across boundaries. The perpetrators
of child labour can easily escape the punishment as the children seldom lodge complaints
against them. Although child labour is prohibited and regulated in many parts of the
world, the under developed countries are considered breeding grounds for child labour.
This dichotomy has given rise to age old practice of bonded labour and forced child
labour in these countries.On the other hand, the developed countries continue to import
things from these countries that involve exploitation of children. From gold to coffee,
from tobacco to the cosmetics, in everything there is engagement of children. A child
labour may be engaged in mining, agriculture industry, manufacturing and services which
may also include extreme forms of child labour including child slavery, sexual
exploitation, child soldiers and drug trafficking. The main factors contributing to it are
shortage of work opportunities for adults and poor implementation of laws. The
international organizations like ILO and UNICEF have been instrumental in securing
various rights for the children and have framed various policy framework for the
prevention of child labour. Despite such laudable conventions and regional instruments,
a large number of children are still deprived of their basic rights across the world.
Pressure from the families, denial from the society and lack of education have forced
more and more children into the dungeons of exploitation where they are enslaved,
underpaid and mercilessly left to die.
 22 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Meanwhile, the majority of the countries are hit by the horrific COVID-19 outbreak, for
the first time in centuries that has left people in an almost comatose state. The lethal
disease spreads through human contact and self isolation, social distancing and lockdown
are the only ways to contain the spread of the virus. While the adults are dealing with
their own uncertainties, the little children in their close habitat are struggling to decipher
the changes in their lifestyle across all sections and boundaries. Due to prevailing
lockdown and loss of income, there is little uncertainty about their future. Therefore it
becomes pertinent to introspect into the impact of the pandemic on child labour and the
strategies that may be adopted to deal with the grave situation.

CHILD LABOUR: CAUSES AND FORMS

The paramount grounds for the inception of child labour issues in bigger cities are
unwholesome family life, destitution, inability to surmount economic needs and security.
Such circumstances force parents to send their children to work and sometimes the
children take independent decisions to fend for themselves. Few crucial grounds for the
upsurge of child labour in a country too depends on its socio-economic state of affairs,
natural disasters, civil war, statelessness, migration, corruption, family disturbance,
appetite, disorder and impairment, local usages and traditions and gender prejudice 1.
There are diverse rural areas where children are unable to access education which leaves
them helpless and pushes them towards child labour.

Magnitude and Faces of Child Labour

The face of urban working children across the world is very complex. The issue stems
from reason of illiteracy. The facts and figures of ILO confirm that about 218 million

1
International Labour Organization, Causes (June, 20, 2020, 9 A.M), https://www.ilo.org/Moscow/areas-
of-work/child-labour/WCMS_248984/lang—en/index.htm.
 23 Jus Carta Edition 3 ISBN 978-81-951020-1-3

children between the age group of 5 and 17 years are in work, worldwide. Among them
152 million are sufferers of child labour and nearly half of all are between the age group
of 5-11 years. 42 million or 28% children are between 12 – 14 years, 37 million or 27 %
are between 15-17 years, of which 88 million are male and 64 million are female. And 73
million children are employed in hazardous occupation. Victims of hazardous child
labour are aged between 15-17 years. About 58 % and 62 % of victims of child labour
and hazardous employment accounts male children respectively. While many female
children engaged in domestic child labour goes un-reported. In total 71 % of the children
are employed in agriculture, involving forestry, fishery, livestock breeding, aquaculture
etc, 17% work in services, 12% in the field of industries involving mining 2. Concentration
of child labour are mostly for the purposes of domestic services, slavery, manufacturing
and trading of drugs, organ trafficking, conflict zones, bonded labours, begging,
pornography, sex trafficking and children are also employed in the sectors of informal
economy, construction work, recycling rubbish, shoe polishing, hotels and restaurants-
washing dishes, cars, match stick industries, brick kilns, industries such as carpet, cottage,
locks, processing stone jewelleries, where children are bared to chemicals, dangerous
machines, scorching sun rays, heavy work loads, unsanitized condition, industrial
accidents which aggravates their health, and well-being3.

CHILD LABOUR: INTERNATIONAL PERSPECTIVE

The scope and ambit of international legislations against child labour is far reaching.
The goal of international legislation are controlling and improving children’s working
2
International Labour Organization, Global Estimates of Child Labour: Results and trends, 2012-2016,
Geneva, 2017 (June 20 2020, 9: 12 A.M)
https://www.ilo.org/wcmsps5/groups/public/@dgreports/@dcomm/documents/publication/wcms_575499.
pdf.
3
Mahua Patra, Legal Control and Child Labour-A study in the District of Burdwan 359 (Dr. Nirmal Kanti
Chakrabarti, Prof. Dr. Manabendra Kumar Nag, et.al. eds, R Cambray & Co. Private ltd., 2004).
24 Jus Carta Edition 3 ISBN 978-81-951020-1-3

conditions. With the extending child labour issues across the world, the goal has made
headway from prohibition and minimal age necessities to get rid of the worst forms of
child labour issues4. Some of the significant international legislations curbing child
labour are discussed below:

International Convention on Child Rights, 1989

It acknowledges the right of children to be safeguarded from economic enslavement and

from carrying out employment that is dicey or dangerous to their safety, health, and
advancement or that impedes their right to education. This convention lays down
governments to put a minimum fixed age for work and also provides for pertinent hours
and conditions of work.5

Minimum Age Convention, 1973 (No. 138)

It lays down the global minimum age of 15 years for getting access to work and the
minimum years of age for perilous employment, dangerous for welfare and security at
18. It also furnishes for the probability to start with employment at the minimum age of
14 years the locales where pecuniary and educational resources are inadequately
advanced and also specifies that light employment which is not detrimental for heath
and school work is permitted for the children age group of 13 – 15 years. 6

4
David Weissbordt and Natalie W. Kohner, International law and Child labour (Anaclaudia Gastal Fassa,
David L. Parker et. al.eds, Oxford University Press 2010 (June 21, 2020, 11 A.M),
https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199558582.001.0001/acprof-
9780199558582-chapter-007.
5
Convention on Rights of the Child 1989 (June 22, 2020, 11: 15 A.M),
https://www.ohchr.org/en/professonalinterest/pages/crc.aspx.
6
Minimum Age Convention, 1973 (No. 138) (June 21, 2020 1 P.M),
https://www.un.org/ruleoflaw/files/Minimum%20Age%20Convention,%201973%20(No.%20138)%20.pd
f.
25 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Worst Forms of Child Labour Convention, 1999 (No. 182)

It provides member states to bring to an end to worst forms of child labour comprising
all modern forms of slavery in the 21st century which are parlous for the well-being,
life, moral standards, protection and health of children. This convention further
necessitates member states to furnish required pertinent strive for driving out children
from such worst forms of slavery and child labour practices and to adopt strategies for
their appropriate rehabilitation and reintegration services. This convention also entails
ratifying states to secure ingress to free basic or primary education and wherever
feasible to organize vocational training facilities for children pulled out from the worst
forms of child labour practices.7

Abolition of Forced Labour Convention, 1957 (No. 105)

It forbids the employment of any sort of coerced or forced labour as a mode of political
coercion or education, penalizing for the utterance of political ideas and outlook,
employees mobilization, work regulation, penalty for partaking in strikes or prejudicial
treatment8.

Forced Labour Convention, 1930 (No. 29)

It is one of the most primary International Labor Organization treaty. This Convention
requires Ratifying member states to forbid the employment of forced labour. Its aim and

7
Worst Form of Child Labour Convention, 1999 (No. 182) (June 21, 2020, 1:30 P.M),
https://www.ilo.org/wcmsp5/groups/public/---ed_norm--
declaration/documents/publication/wcms_decl_fs_46_en.pdf.
8
Abolition of forced labour Convention, 1957 (No.105) (June 21, 2020 1:30 P.M),
https://www.un.org/ruleoflaw/files/ABOLIT~1.PDF.
26 Jus Carta Edition 3 ISBN 978-81-951020-1-3

objective is to repress such employment in all its forms regardless of the sort or sphere
of work in which it may be conducted9.

Other important treaties and conventions which play a leading role for the elimination of
child labour and render special concern for child protection and care are as follows:
a) International Covenant on Civil and Political Rights.
b) International Covenant on Economic, Social and Cultural Rights.
c) Universal Declaration of Human Rights (1948).
d) The International Convention on the Elimination of All Forms of Racial
Discrimination 1965.
e) The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 1984.
f) The Declaration on the Right to Development 1986.
g) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power 1985.
h) Conventions Regarding Work at Night: Night work of Young Persons (Industry)
1919, recommendation no 14.
i) Convention no.79 Regarding Night Work of Young Persons (Non-Industrial
Occupation) 1946.
j) Convention no. 90 Regarding Night Work of Young Persons (Industry) 1948.
k) The United Nations Commission on Human Rights, 1994.
l) The United Nations Commission on Crime Prevention and Criminal Justice in
1994.
m) United Nations Millennium Declaration, 2002.
n) OECD Guidelines 1980

9
Forced Labour Convention, 1930 (No.29) (June 21, 2020 1:45 P.M),
https://www.ilo.org/wcmsp5/groups/public/@asia/@ro-
bangkok/documents/genericdocument/wcms_346435.pdf.
 27 Jus Carta Edition 3 ISBN 978-81-951020-1-3

o) UN Guiding Principles for Human Rights also known as Ruggie Principles 2011

CONSTITUTIONAL & STATUTORY PROVISIONS ON CHILD LABOUR IN INDIA

The Indian Constitution keeping in concern the “paediatric” issues has formulated special
provisions for the welfare of children such as compulsory and free education and
employment protection. Children have right to reap the benefits of all the fundamental
rights under Part III which are guaranteed to the Indian citizens because it is very crucial
for their real development. The Directive Principles of State Policy engrafted in Part IV of
the Indian Constitution specifies the obligation of the nation towards the education,
welfare, employment and development of children10. The constitutional provisions
dealing with the well-being of children are explicit and are classified into two forms 11.
The explicit provisions are Articles 15(3) 12, 2413, 39(e)14, 39(f) 15 and 4516. The implicit
provisions are Articles 14 17, 2318, 3819, 4120, 4221, 4622, 4723. Moreover the inclusion of

10
Prof Saleem Akhtar, Child Labour in India: Challenges and Remedies-An Analysis 288 (Dr. Nirmal
Kanti Chakrabarti, Prof. Dr. Manabendra Kumar Nag, et.al. eds., R.Cambray & Co.Private Ltd. 2004).
11
Shib Shankar Ghosh, Human Rights and Child labour: A case study in Hotel and Restaurant in Kolkata
315 (Dr. Nirmal Kanti Chakrabarti, Prof. Dr. Manabendra Kumar Nag, et.al. eds., R.Cambray & Co.
Private Ltd. 2004).
12
Article 15(3) of the Constitution of India authorizes the state to make special provision for women and
children.
13
Article 24 of the Constitution of India forbids employment of children in factories and hazardous
employments.
14
Article 39(e) of the Constitution of India provides that the health and strength of workers, men and
women, and the tender age of children are not exploited and that citizens are not coerced by economic
requirements to enter avocations unsuited to their age or strength.
15
Article 39(f) of the Constitution of India lays down that children are given chances and facility to
develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and moral and material abandonment.
16
Article 45 of the Constitution of India provides for free and compulsory education for children. The
State shall endeavour to furnish within a period of ten years from the commencement of the constitution
for free and compulsory education for all children until they complete the age of fourteen years.
17
Article 14 of the Constitution of India provides for equality before law and equal protection of laws.
18
Article 23 of the Constitution of India provides for Prohibition of traffic in human beings and forced
labour.
 28 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Article 21A of the constitution requires the State to render free and compulsory to all
children between the age group of 6 to 14 years. This strategy of providing free education
and including it as a fundamental right forms a well timed window of opportunity to
impede child labour problem in India. Additionally special concern may also be given to
Article 51(c) which requires the state to promote esteem for international treaties and
conventions.

NATIONAL LEGISLATIONS

The constitutional obligations for the welfare of children contemplated in various

legislations implemented at times deals with minimal age and wage, hazardous
occupation etc. A brief glance of some significant laws will be apt for the present study.

Child Labour (Prohibition and Regulation) Act, 1986 and The Child and Adolescent
Labour (Prohibition And Regulation) Amendment Act, 201624

This Central Legislation has made considerable changes in the provisions of the Child
labour (Prohibition and Regulation) Act, 1986. An absolute forbidding has been inflicted
on the employment of child labour below the age group of 14 years in any enterprises
regardless of hazardous or not. Moreover this Act requires the employment of a child only

19
Article 38 of the Constitution of India endeavours States to secure a social order for the protection of
welfare of the people.
20
Article 41 of the Constitution of India ensures Right to work, to education and to public assistances in
specified cases.
21
Article 42 of the Constitution of India provides for provisions for just and human conditions of work.
22
Article 46 of the Constitution of India requires State to provide for the promotion of educational and
economic interest of schedule caste, schedule tribes and other weaker sections.
23
Article 47 of the Constitution of India obligates the State to raise the level of nutrition and the standard
of living and to improve public health.
24
The Child and Adolescent Labour (Prohibition and Regulation) Amendment Act, 2016 (Act No.35 OF
2016).
 29 Jus Carta Edition 3 ISBN 978-81-951020-1-3

in certain conditions such as a child can allowed to work only in a family undertaking to
help the family or as an artist after school hours or throughout vacations.

The Juvenile Justice (Care and Protection of Children) Act, 201525

It lays down provisions for proper rehabilitation and social reintegration to redress the
plights of children in need of care and protection. Additionally this act penalizes any
employment of children below the age group of 14 years in any industry or work.

The Protection of Children from Sexual Offences Act, 201226

It enforce laws for the safeguarding of children from sexual enslavement or exploitation.
this legislation also forbids child sex labour.

Right to Education Act 200927

It has made obligatory for the State to make sure that all children aged 6-14 years are in
school and obtain free education. This legislation is an initiative by our government to
curb child labour as proper access to education will increase efficiencies of children thus
eliminating child labour.
Domestic Workers (Registration Social Security and Welfare) Act, 200828

It provides that a child shall not be taken into employment as a domestic worker or any
related work which is outlawed.

National Commission for Protection of Child Rights Act, 200529

It is enacted with a sole purpose of safeguarding or protection of Child Rights and

Children’s Courts for furnishing quick and speedy hearing of crimes against children or
25
The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.2 OF 2016).
26
The Protection of Children from Sexual Offences Act, 2012 (Act No.32 OF 2012).
27
The Right of Children to free and compulsory Education Act, 2009 (Act No.35 OF 2009).
28
Domestic Workers (Registration Social Security and Welfare) Act, 2008.
29
The Commission for Protection of Child Rights Act, 2005 (Act No. 4 of 2006).
 30 Jus Carta Edition 3 ISBN 978-81-951020-1-3

for infringement of child rights or related matters. National Commission for Protection
of Children (NCPR) established in the year 2007 under this Act is a statutory framework
to make sure that all legislations, plans, Schemes, Administrative strategies are in
compatibility with the Child Rights conferred in the Constitution of India and the UN
Convention on the Rights of the Child.

Other legislations that provides for protection of children include Beedi and Cigar
Workers (Condition of Employment) Act, 1966; the Mines Act, 1952; the Factories Act,
1948; Bonded Labour System (Abolition Act) 1976, Motor Transports Workers act, 1961,
Apprentice Act, 1961, Shops and Establishments act, 1953, Plantation Labour Act, 1951,
Merchant Shipping Act, 1948, Minimum Wages Act, 1948.

SCHEMES AND POLICIES FOR PREVENTING CHILD LABOUR

Pencil for Child Labour

It is an electronic portal which is a plan of action for effectual implementation of No

Child Labour that is to put an end to child labour. This Portal is set in motion by Union
Home Ministry that goals at including Centre, State, District Governments, Civil Society
and the public at large in accomplishing the goal of Child Labour free community and
additionally with a Sustainable Development Goal to eradicate Child Labour by the year
202530.

30
What are the features of Pencil Portal, (June 24, 2020, 12 P.M), https://www.jagranjosh.com/general-
knowledge/what-are-the-features-of-pencil-portal-1515751468-1.
 31 Jus Carta Edition 3 ISBN 978-81-951020-1-3

National Child Labour Project (NCLP)

It is a scheme that was started in the year 1988 focuses on rehabilitation of the victims of
child labour31.

Kanyashree

It has played a significant role in impeding crimes against children such as the modern
forms of slavery and other offences such as child marriage, the joint secretary of women
and child development and social welfare department and the government of West Bengal
has strive hard through this scheme by Conditional cash transfers with a view to put the
children in education and also to protect the vulnerable female children32.

Integrated Child Protection Scheme (ICPS)

It is a centrally promoted scheme focused at creating a secured ambience for children in

arduous situation as well children in pregnable condition. The main focus of the scheme is
to bring all the prevailing schemes under one extensive umbrella for the protection of
children and to curb future harm33.

Track Child Portal

It has been formulated cohering to the regulations furnishes in the earlier Juvenile Justice
( Care and Protection) Act, 2000 and Model Rules 2007 and the laws provided in ICPS.
The main aim and objectives of Track Child Portal includes well timed tracking of
missing children and absolute repatriation and rehabilitation of the missing children and

31
About National Child Labour Project, (June 24, 2020, 1 P.M), https://www.jagranjosh.com/general-
knowledge/what-are-the-features-of-pencil-portal-1515751468-1.
32
Kanyashree, (June 24, 2020, 1 P.M), https://wbkanyashree.gov.in/kp_4.0/index.php.
33
Integrated Child Protection Scheme, (June 24, 2020, 2 P.M), https://wcd.nic.in/integrated-child-
protection-scheme-ICPS.
 32 Jus Carta Edition 3 ISBN 978-81-951020-1-3

to make certain that pertinent care and advancement of the children of Child Care
Institutes34.

IMPACT OF COVID-19 ON CHILD LABOUR IN INDIA

The emergence of a disease as perilous as COVID-19 been significantly affected India

and crippled its economy. It has shaken people from all stratum but the section that is
worst affected are the poor and the impoverished class. The disease is likely to affect
children considerably in the long run. ILO and UNICEF anticipate a reverse situation
where the achievements made so far in regulating child labour will see a downturn. 35
Children are going through the toughest time and the pandemic is likely to put a large
number of children into further exploitation during and post the lockdown that deserves a
mention.36

Reduction of Collective Income

The pandemic has deprived people of their right to livelihood .With the closure of
establishments, both formal and informal, many have lost their source of income. A
research by King’s College London and the Australian National University reveal that
Asian countries like Phillipines, Pakistan, Indonesia, Bangladesh and India may reduce
the collective income by $500 million day and is likely to push global poverty above 1

34
National tracking system for missing and vulnerable children, (June 24, 2020, 2:30 P.M),
https://vikaspedia.in/social-welfare/women-and-child-development/child-development-1/handling-
missing-children/national-tracking-system-for-missing-and-vulnerable-children.
35
Coronavirus (COVID-19) Global Response, (June 24. 2020, 7 P.M),
https://www.unicef.org/appeals/covid-2019.html.
36
COVID-19: Protect children from child labour, now more than ever! (June 25, 2020 9 A.M),
https://www.ilo.org/ipec/Campaignandadvocacy/wdacl/lang--en/index.htm.
 33 Jus Carta Edition 3 ISBN 978-81-951020-1-3

billion people once again. 37 Similar assumption is made by the World Bank that predicts
that the first annual increase in net global poverty levels will rise in more than two
decades. 38 This will have a serious impact on the lives of children. UN Chief Antonio
Gueterras also made a comment that about 49 million more people are likely to fall into
extreme poverty this year due to the Covid-19 crisis, job losses in the family will force
children into informal sector to support the family income. These children will have to
make a choice between going to school or supporting the family. 39

Closure of Schools

One of the imperatives of the COVID-19 containment strategy was the closure of
educational institutions since mid March. This has severely impacted affected the
children especially from the marginalized section. Many families that depend on free
meals provided at schools for food and healthy nutrition shall be deprived and will be
forced to join the workforce and generate income for financially distressed families.
This will also highly effect the girl children and see more drop out rates and further
entrench gender gaps and may lead to early marriages and early pregnancy from forced
marriage. Many children will never return to school because of indefinite school
closures and family pressure.40

37
Extreme poverty could rise to one billion people globally due to covid-19 crisis: Report, (June 25,2020,
10 A.M), https://economictimes.indiatimes.com/news/international/world-news/extreme-poverty-could-
rise-to-over-one-billion-people-globally-due-to-covid-19-crisis-report/articleshow/76336754.cms.
38
Global Extreme Poverty, (June 25, 2020, 3 P.M), https://ourworldindata.org/extreme-poverty.
39
An additional 49 million people may fall into extreme poverty this year due to covid-19: UN Chief ,
(June 25, 2020, 3:30 P.M), https://www.thehindu.com/news/international/an-additional-49-million-
people-may-fall-into-extreme-poverty-this-year-due-to-covid-19-un-chief/article31792896.ece.
40
Future of 370 million children in jeopardy as school closure deprives them school meals-UNICEF and
WFP, (June 26, 2020, 9 A.M), https://www.unicef.org/press-releases/futures-370-million-children-
jeopardy-school-closures-deprive-them-school-meals.
34 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Decline in Living Standards

For human development, education, health and living standards is very significant. The
developing countries will be worst hit. UNDP has warned that global human
development could decline this year for the first time since 1990. 41This would result in
largest reversal in human development on record. The disease will also have a lasting
impact on the health living standard of people. Loss of saving in the family will force
children to quit schools and shoulder the responsibility of winning bread for the family.

Displacement of Migrant Workers

One of the serious implications of the pandemic is the mass exodus of migrant workers
from the cities to their native villages. Many families are still stranded at various places
with limited access to food and medical aid. These children are living in hazardous and
unhygienic conditions and are exposed to physical and mental abuse. 42

Poor Health Infrastructure

Within the constraints of our economic and healthcare challenges poor health
infrastructure has affected the children to a considerable extent. Because of the spread of
the disease and government hospitals focusing more on the COVID cases, there is acute
shortage of beds in the hospitals resulting in negligence of regular patients. 43

41
COVID-19:Human development on course to decline this year for the first time since 1990, (June 26,
2020, 10 A.M),https://www.undp.org/content/undp/en/home/news-
centre/news/2020/COVID19_Human_development_on_course_to_decline_for_the_first_time_since_199
0.html#:~:text=May%2020%2C%202020-
,COVID%2D19%3A%20Human%20development%20on%20course%20to%20decline%20this%20year,t
he%20first%20time%20since%201990&text=Each%20has%20hit%20human%20development,%E2%80
%93%20may%20change%20this%20trend.%E2%80%9D.
42
Understanding the Implications of the Covid-19 Lockdown on Migrant Worker’s Children, (June 26,
2020, 11 A.M), https://thewire.in/rights/covid-19-lockdown-migrant-workers-children-implications.
43
Covid-19, Is India’s health infrastructure equipped to handle an epidemic?, (June 26, 2020, 1 A.M),
https://www.brookings.edu/blog/up-front/2020/03/24/is-indias-health-infrastructure-equipped-to-handle-
an-epidemic/.
 35 Jus Carta Edition 3 ISBN 978-81-951020-1-3

STRATEGIES TO PREVENT CHILD LABOUR IN INDIA DURING COVID-19

The upshot of the lockdown with schools being shut and factories closed, the children in
their families have been encountering acute poverty and despair. In this period of crisis,
children become prone to further exploitation for sustenance and consequentially embrace
any menial work in the informal sector to earn their livelihood. Decline in income across
all sectors taking away livelihoods, failing businesses, closure of establishments may
result in the decline in demand for workers. Effective action against child labour must
address the full range of vulnerabilities that children face, and requires implementation of
policies and programmes that can contribute to the elimination of child labour through
sustainable solutions to address its root causes. Given the current reopening of many
activities, a safe and healthy return to work should be a priority. A voluntary organization,
M.V. Foundation that works for the cause of poor has urged the state government to take
strides to furnish appropriate meals to children during the lockdown period so as to forbid
them from work.44 The Apex Court is presently dealing with a case that involves
directions to ensure that child workers, who have set off their journey towards their
hometown amidst the lockdown, are rehabilitated and not trafficked into factories. 45
Therefore, the following measures may be adopted to deal with the issues relating to child
labour.

Upholding Children’s Rights and Fundamental Workplace Principles

Policies safeguarding families and their children child development protection policies
will safeguard families and their children during the immediate crisis and yield lasting

44
MV Foundation appeal to prevent child labour, (June 26, 2020, 1:30 P.M),
https://www.thehindu.com/news/cities/Hyderabad/mv-foundations-appeal-to-prevent-child-
labour/article31698155.ece.
45
Divya trivedi, Burden on Children, (June 27, 2020, 8 A.M), https://frontline.thehindu.com/cover-
story/article31869650.ece.
 36 Jus Carta Edition 3 ISBN 978-81-951020-1-3

benefits. Ensuring decent employment and safe return-to-work policies for adults, and
safe reopening of schools for children are of paramount importance. So are further
adapting and strengthening child protection systems and social services, and social
protection measures, such as cash transfers. For low-income families in particular, these
are the fundamentals to meet basic needs without resorting to child labour or other
harmful practices that put children at risk becomes imperative.

Ensuring Social Security for Children and Families

To deal with the economic crisis, the government should enact comprehensive social
protection policies to uplift the families .There should be cash transfer programmes and
extended health care programmes to ensure food security, regular income and
employment. The state must ensure the continuance of the health services such as
immunization and maternal healthcare needs to all households through the Integrated
Child Development Scheme. The Anganwadi centres in villages must extend services to
all households including the children who are not registered.

Provide Employment Opportunities for Adults

Layoffs have been the most common impact of the pandemic. Loss of jobs, closure of
factories, break in the global supply chains have affected families to a great extent. The
government should initiate policies to provide employment opportunities to the workers
to save the children from economic crisis. Therefore providing the adults with
employment opportunities would ensure a safe environment for the children and prevent
them from entering into child labour. The poor families will be forced to send their
children into child labour if their finances are not taken care of, Extension of credit
facilities will ensure them the ability to fight the situation and give them stability.
 37 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Implementation of Right to Education

So that the children do not fall prey to child labour, the duty of the state to provide
education should continue uninterruptedly. Monitoring the school children and tracking
the drop out children and bringing them back should be one of the key involvement post
the lockdown in compliance with the provisions of the Right to Education Act, 2009
becomes inoperative. The civil society organisations should join hands with the
government to reach out to the families and ensure that the children re enroll themselves.
The gap they suffered should be duly compensated. Mid-day meals play a crucial role in
pulling the students to school. These services should be resumed in compliance with the
guidelines issued by the health department. Vocational training should be imparted to
children to secure their lives.

Ensuring Health and Safety of Workers

Provision of safe workplaces protecting the workers from the spread of virus would
ensure safety to the children at home. Where children are employed, policy guidelines
should be introduced on the health and safety of children and workforce. Providing
relevant information to protect against the virus is the need of the hour. This will help in
containing the virus and also encourage the workers to rejoin their duties to prevent
financial crisis in families.

Reinforcement of Labour Administration

Proper monitoring in high risk sectors for child labour is significant. Community based
involvement, and pro active disclosure of information of business sectors and information
on the terms and labour codes and standards in public view involved in the employment
of children can set new standards for the regulation and prohibition of child labour.
 38 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Role of Citizens

Communities have always played significant roles in nurturing the children. As

responsible citizens it is their duty to remain vigilant and discourage employment of
children in houses, shops and other hazardous occupation. There should be greater
awareness about the existing laws, helpline numbers and agencies to prosecute the
offenders and protect the victims. Child helpline Numbers like 1098 or simply informing
the police at 100 can save the lives of children.

JUDICIAL INTERVENTION

Taking into consideration the plight of child labour across the country, recently a Public
Interest Litigation was filed in the Honorable Supreme Court by a Non-governmental
Organization – Bachpan Bachao Andolan. In response, the Apex Court has directed the
senior lawyers to prepare a report on the same. It has also issued notice to the Union
Government for framing guidelines to prevent child trafficking that was done primarily
to use the child as cheap labour. The court has also sought response from the National
Disaster Management Authority (NDMA), ministries of Home Affairs and Labour and
Empowerment and nine states including Assam, Bihar, Chattisgarh, Jharkhand,
Maharashtra, Rajasthan, West Bengal, Delhi and Telengana. 46 These states have seen
largest number of transfer of migrant workers and this is the time when children
trafficking can be effectively curbed.

It has been highlighted that the traffickers have already become active in various areas
of the country and are tapping vulnerabilities of poor families by coercing and inducing

46
Lockdown effected downturn to cause spike in child trafficking, SC told, (June 27, 2020, 9 A.M),
https://www.hindustantimes.com/india-news/lockdown-effected-downturn-to-cause-spike-in-child-
trafficking-sc-told/story-cYh4qgoP9aN2z4Qpyli6YM.html.
39 Jus Carta Edition 3 ISBN 978-81-951020-1-3

them into selling their children for child labour and sexual exploitation. A targeted
response to the pandemic in the form of formulating a policy can substantially decrease
the trafficking of children. If proactive steps are taken, the impending humanitarian
crisis in the aftermath of the ongoing global health crisis can be largely prevented.

CHALLENGES AHEAD

Children are our reflection and it is our duty as responsible citizens to give them a
congenial environment to grow. Child labour stunts all around growth of children and
pushes them to the dark world of violence and exploitation. The government has a larger
role to play in implementing the policies and regulations to combat child labour
especially when we are going through a national crisis. It is indeed a big challenge to
overcome the battle against the deadly disease and it will be greater challenge to
restore the lives of the children who are victims of child labour. Dissemination of
knowledge and action to eradicate child labour need to be expanded in line with relevant
international labour standards.

The government should join hands with the civil society organisations involving the
community members to benefit the most treasured possession of the nation – our
children. The legislations in India have proved ineffective in more than one ways but
through education we can certainly give them a meaningful life. As Kailash
Satyarthi,the nobel peace prize recipient , has quoted “I am positive that I would see the
end of child labour around the world in my lifetime, as the poorest of the poor have
realised that education is a tool that can empower them.”
40 Jus Carta Edition 3 ISBN 978-81-951020-1-3

CONCEPT OF RESERVATION SYSTEM IN INDIA

- NISHI SUTERI

ABSTRACT

Reservation is an age old concept which got incorporated under the constitution of India
after it got independence with the aim of providing certain rights to the the weaker
sections of the society including the scheduled castes and scheduled tribes. This article
gives an overview of the evolution of these rights and the judicial pronouncements made
so far in respect of these rights.

In a state of nature, all men are born equal, but they cannot continue in this equality,
society makes them lose it and they recover it only by the protection of the law.

-Montesquieu

INTRODUCTION

The role of state as we know of today is not merely confined to functions of defense and
administration of justice but has evolved into that of a welfare state, and it is this notion
of welfare state towards which state works to promote welfare of people through means
such as affording equality of opportunity, to afford basic standard of living etc. In doing
so it is guided by the principles enshrined in our constitution`s preamble, fundamental
rights, and directive principles of state policy. It is based on these principles that the
concept of reservation emerged for providing fair equality of opportunity.
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WHAT IS RESERVATION?

Reservation is an act of reserving something: such as (1) the act or fact of grantor’s
reserving some newly created thing out of the thing granted; (2) the right or interest so
reserved1. In the Indian context, reservation is a positive action on the part of state in
providing aid to the backward classes and disadvantaged group of people to represent
themselves in the society in various sectors such as in education, employment and
politics among the other group of people. Simply put, reservation, especially for socially
and educationally backward people, is a tool to help them get on par with others.

HISTORICAL BACKGROUND

Caste system is deep rooted in the Indian society, resulting in caste-based abuses, and
discrimination against marginalized sections of our society. It is with the aim of
uplifting their status and to provide them equal opportunities that the reservation system
was introduced. Reservation was provided even before independence in public services
by various princely states. Under Indian council act, 1909 reservation of seats in
legislative body was made for the first time. Under GOI act 1919 the politico-
constitutional existence of people from depressed classes was recognized. By Poona
pact reservation of seats in central and provincial legislatures, along with provisions for
education grant was also made. GOI act, 1935 fully implemented principles agreed in
Poona pact. Constitutional assembly also recognized equality of opportunity under
constitution.

1
Merriam webster’s Dictionary, www. merriam-webster.com/dictionary/reservation
42 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Dr. BR Ambedkar in constitutional assembly said that:-

“although theoretically it is good to have the principle that there shall be equality of
opportunity, there must at the same time be a provision made for the entry of certain
committees which have so far been outside the administration.”

He argued that the inclusion of A. 16(4) was a method of recognizing the demand that
mere formal equality in A. 16(1) would be insufficient and a balance between formal
equality of opportunity and the needs of the disadvantaged classes of society was
needed.

COMMISSIONS

Various commissions were also set up to determine criteria for reservation.

Kaka Kelkar Commission

It was appointed by president in 1953 and was directed to determine the criteria to be
adopted in considering whether any section of people should be treated as socially and
educationally backward. The commission considered caste as the sole criteria for
determining backwardness. Government of India rejected its recommendation.

Mandal Commission

It was set up in 1978. In its report it said that 27% reservation to be given for seats in
educational institutions as well as in jobs. Recommendations were accepted by
Government.

Further, in 2019 the government made an additional reservation for the people who were
socially backward and were not being represented in the society now the maximum of
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10% reservation in the educational institutions and government jobs will be provided,
this was done through The Constitution (103 Amendment) Act, 20192.

JURISPRUDENTIAL ASPECT

One of the main reasons for introducing a concept like reservation was to remove social-
economic inequalities in the society, to provide them distributive justice, compensatory
justice.

Compensatory justice refers to the extent to which people are fairly compensated for
injustices inflicted upon them in past. Here the state provides them with special benefits
like reservation of post in government services, seats in legislatures and so on to
compensate them for the oppressions they have been subjected to in the past.

From the view point of “John Rawls”, he says that social and economic differences in a
society could only be justified if they benefitted the worst off. He says that morally
arbitrary factors, for example the family one is born into shouldn’t determine one’s life
chances or opportunities. As per Rawls, Affirmative Action is justified. And since, in
India the lower caste people are still being discriminated against, and are under
repressed in the society, policies are required to ensure that they are able to develop
along with the society.

2
The Constitution (103 Amendment) Act, 2019, www.egazette.nic.in/WriteReadData/2019/195175.pdf
44 Jus Carta Edition 3 ISBN 978-81-951020-1-3

CONSTITUTIONAL PROVISIONS RELATING TO RESERVATION

Article 14

It says that state is under an obligation of not denying any person equality before law or
equal protection of laws in the territory of India. This right is not only provided to the
citizen of India but to any person who is in the territory of India shall be provided with
equality before law irrespective of religion, race, caste, sex or place of birth. This
section protects people from discrimination that people face on the basis of their caste
religion or other various reasons and ensures that when they come before law they will
be treated equally.

Article 15(4)

This Article prohibits any discrimination on the ground of religion, race, caste, sex or
place of birth. But right under this article is provided only to the citizens of India and not
every person who is in the territory of India. Clause (4) of this article provides that the
state has a liberty to make special provision for advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and Scheduled
Tribes.

Article 16(4)

The Article talks about equality of opportunity in matter of public employment. This
right is also provided to the citizens of India in all those matter which are in relation to
appointment to any officer under the State. This article prohibits any discrimination on
the basis of religion, race, sex, caste, descent, place of birth, residence or any of them, or
declares them as ineligible on these bases for any employment or office under the state.
Clause (4) of this article allows the state for making any special provision for the
45 Jus Carta Edition 3 ISBN 978-81-951020-1-3

reservation of appointment or posts in favour of any backward class of citizen which the
state is in the opinion that they are not being adequately represented in the services of
the state.

Article 16 (4A)

This Clause was inserted in the Constitution of India by the 77th Amendment where an
additional provision was made for the Schedule Caste and Schedule Tribes in regard
with promotion in the services under the state, where the state if in opinion that such
provision shall be made for such category.3

Article 16 (4B)

This clause was inserted by the 81st Amendment act, 2000, where the state is allowed
reserving for the Scheduled caste and Scheduled tribes in promotion to carry forward the
unfulfilled vacancies from previous years this was called as carry forward rule.4

Article 29(2)

This article focuses on protection of interest of the minorities, under Clause (2) of this
Article it was laid that no citizen shall be denied admission into any educational
institution which is being maintained by the state or those institutions which is receiving
aid out of the state funds on the ground of religion, race, sex, caste, language or any of
them. Article 46 – This article is focusing on promoting of educational and economic
interest of the backward class which includes the Scheduled Castes and Schedule tribe
and certain other weaker section of the society which are not being represented in the
society. This article mandates the state to promote with special care educational

3
The Constitution (Seventy-Seventh Amendment) Act, 1995, http://legislative.gov.in/constitution-
seventy-seventh-amendment-act-1995
4
The Constitution (eighty first Amendment) Act, 2000, www.legislative.gov.in/constitution-eighty-first-
amendment-act>
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institution for these weaker sections of the people, the state is also under an obligation to
protect these weaker sections from social injustice and all form of exploitation.

Article 335

In this article claim of Schedule Castes and Schedule Tribes to service and post shall be
taken into consideration with maintenance of efficiency of administration, in making of
appointment services and posts in connection with affairs of the State and Union
Territory.

JUDICIAL PRONOUNCEMENTS SO FAR

First case on reservation was State of Madras vs. Champakan Doirajan(AIR 1951)5,
wherein a communal GO of madras government was struck down by court and J. SR das
held that caste based reservations as per communal GO is violative of A.15 (1) and also
that directive principles of state policy have to confirm to and run as subsidiary to
fundamental rights.

This judgment led to first amendment, 1951 with insertion of Article 15(4).

In M.R Balaji v. state of Mysore (AIR 1963)6 wherein a government order giving
68% reservation in colleges admission was deemed excessive and considered
inconsistent with A.15(4), court held that social provision should be less than 50%, also
A.15(4) does not envisage classification between backward and more backward classes.

5
1951 AIR SC 226
6
1963 AIR SC 649
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T. Devdasan (AIR 1964)7 wherein carry forward rule was struck down by court as
unconstitutional, saying A.16(4) was an exception to A.16(1), following the verdict of
M.R Balaji case it declared that reservation cannot exceed 50% in a single year.

In Indra Swahney V UOI (AIR 1993)8, wherein the Court held that Article 16(4) does
not grant reservation in promotion because it pertains only to reservation in appointment
for the Schedule caste and Schedule Tribes. But this judgment allowed reservation in
promotion to continue for five years post 16th November, 1992. This judgment also
upheld that reservation also included reservation for other backward classes which are
also considered as weaker section and unrepresented part of the society, further, the
court overruled its earlier decision in MR Balaji’s case and Devdasan’s case. It stated
that reservation contemplated in clause (4) of A.16 should not exceed 50%, however in
extraordinary situation, this percentage may be exceeded. Also stated that carry forward
rule is not perse unconstitutional and must be within 50% cap.

But in General Manager Sothern Railway v. Rangachari 9 it was held that reservation
in promotion is constitutional by a five judge bench.

Rule laid down in Indra Swahney was modified by Seventy Seventh (77) amendment act
1995, which added a new clause (4A) to A.16 giving reservation in promotion.

Another issue that was with respect to consequential seniority was dealt with in the case
of UOI v. Virpal Singh10 and also Arjit Singh (II) v. State of Punjab11 wherein the
court denied consequential seniority in promotion and introduced the concept of “catch
up rule”.

7
1964 AIR SC 179
8
1993 AIR SC 477
9
1962 AIR SC 36
10
1996 AIR SC 448
11
1999 AIR 7 SCC 209
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To negate the effect of these two cases, 85th amendment act, 2001 amended A.16 (4A)
adding the word consequential seniority.

Also to bring carry forward rule, 81st amendment act, 2000 added clause (4B) to article
16.

Constitutional validity of 77th, 81st and 85th amendment was challenged in M. Nagraj V.
UOI12 case which upheld these amendments stating that it did not change the identity of
the constitutional also stated that there must exist compelling reasons of backwardness,
inadequacy of representation in a class of past(s) and keeping in mind the overall
administrative efficiency and also on the principle of creamy layer.

In Jarnail Singh V. Lachhmi Narain (2018)13, wherein the court declined to refer the
Nagraj verdict to larger bench and also held there was no necessity to visit Nagraj in so
far as it applied the creamy layer test and held Nagraj to be contrary to the extent it
insisted proof of backwardness of SC/STs to Indra Swahney case. Court said that data
showing backwardness is not a precondition for reservation in promotions for SC/STs.

In BK Pavitra I (2017)14 a two-judge bench of the Supreme Court had declared a 2002
legislation passed by Karnataka assembly invalid on the ground that Karnataka had not
collected quantifiable data on the three parameters – inadequacy of representation,
backwardness and the impact on overall efficiency – before making reservations in
promotions. The 2002 Act passed by the Karnataka assembly provided for consequential
seniority to roster-point promotees based on the length of service in a cadre.

After the decision of the Supreme Court in B.K. Pavitra I on March 22, 2017, the
Karnataka government set up the Ratna Prabha Committee, to submit a report on the

12
2007 AIR SC 71
13
2018 10 SCC 396
14
2017 AIR SC 820
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backwardness and inadequacy of representation of SCs and STs in the state civil
services and the impact of reservation on overall administrative efficiency in the state.
This committee submitted its report on May 5, 2017. On the basis of the Ratna Prabha
Committee report, the state assembly passed the Karnataka Extension of Consequential
Seniority to Government Servants Promoted on the Basis of Reservation Bill, 2017. The
Bill received president’s assent under Article 200 of the constitution, after the state
governor referred it for his consideration following a controversy that the state
legislature could not undo a Supreme Court’s judgment, declaring a similar law passed
in 2002 invalid. The 2018 Act was challenged in the Supreme Court in B.K. Pavitra II.

In BK Pavitra II15, the court held that the state legislature, by enacting the 2018 Act,
took care to remedy the underlying cause which led to a declaration of invalidity of the
2002 Act

In the latest case of Mukesh Kumar V. State of Uttarakhand (2020)16 The Supreme
Court ruled, "It is settled law that the state government cannot be directed to provide
reservations for appointment in public posts. Similarly, the state is not bound to make
reservation for Scheduled Castes and Scheduled Tribes in matters of promotions." Court
held that there is no fundamental right to reservation in promotion, stating that A.16 and
16(4A) are enabling provision.

CONCLUSION

A constant battle can be seen between the judiciary and the parliament wherein the
parliament negated many verdicts of the Supreme Court by bringing constitutional
amendments to the provision. Many interpretation were given by court with a view to

15
2019 AIR SC 2723
16
2020 AIR SC 113
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safeguard the interests of the backwardness classes but at the same time balancing those
interests with those of the advanced sections of the society, for instance what T
Devdasan case that there must be a balance between claim of backward class and those
of other, the Virpal Singh and Ajit Singh(II) cases which introduced catch up rule to
maintain efficiency and meritocracy as well but such interpretations were negated by
bringing constitutional amendments. It is true that reservation is given for elevation of
their status but even after such a long time the situation has not improved much since the
inception of reservation as was dreamt by our constitution`s framers. It is also true that it
will be only possible when such caste based prejudices are removed from the society
from its roof itself, only then will there be equality as enshrined in our preamble, not
only this, what is needed is fraternity amongst all, which is poignantly embedded
through the provisions of part III of the constitution, which assures true equality, where
the state treats all alike, assures the benefit of growth and prosperity to all, with equal
liberties to all and which guarantees that every citizen treats every other citizen alike.
51 Jus Carta Edition 3 ISBN 978-81-951020-1-3

POLITICS OF A PANDEMIC – AN ANALYTICAL OVERVIEW OF LEGAL REFORMS

ENFORCED IN INDIA DURING THE COVID-19 CRISIS

- C.C. CHENGAPPA

Coronavirus gave Indian citizens a lot to ponder over while in the comfort of their
homes. In the midst of the several lockdown extensions and multiple ‘Man Ki Batts’,
there is an interesting angle that looks into the separation of powers and the federal
structure of the country. These two aspects have played out in a plethora of ways since
the historic day of 24th March 2020. This research paper will analyse the legal and
administrative reforms that were put into place during the past 7 months and how they
played out in a detrimental and counter effective manner throughout the country.
Moreover, it will look at the framework and structure of certain legislations which was
outrightly disregarded by the Central government in their bid to assert authority in an
overriding manner.

When the Lok Sabha reopened on the first day of the Monsoon Session, the Centre was
evidently not braced for the barrage of questions that came their way. One topic that was
repeatedly questioned by the Opposition was about data available on the situation of
migrant workers, along with lives and jobs lost since lockdown. The reply given by the
Union Minister for Labour was “no such data is available”. 1 This statement is enough to
understand how the government handled the lives of its population during the
pandemic.

Lathi charges, dearth of ration and non-payment of wage dues were just some of the
problems faced by migrant workers who began a long walk home. The implementation
of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of
1
Response to GoI's Data on Migrant Workers' Deaths | Unemployment | Social Science. Scribd. (2020).
https://www.scribd.com/document/476246556/SWAN-Response-to-GoI-s-Data-on-Migrant-Workers-
Deaths
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Service) Act,2 by the Centre did not meet its intended aim. To give an overview, the act
specifies measures to be taken for the welfare of migrant workers, such as payment of a
travel allowance3, and the responsibility of payment of wages by the employer 4 amongst
many other specificities. The Centre specified that it catered to the several million
migrants who were left stranded post lockdown and made arrangements for their food,
shelter and transport.

However, one must go through the hundreds of photos and videos of migrant workers
walking down highways to understand how they were treated by employers, state and
central governments. Various reports of migrants being run over by trains 5 and dying
due to the excessive heat6 began pouring in after 24th March. The Migrant Workers Act
was one of the few legal recourses for the labourers but they were denied their basic
rights such as medical and residential facilities due to the incompetent and unprepared
administration. One could argue that the government was not prepared for the mass
exodus but then again, the delayed reaction and lack of data over labour assistance is
evidence of absolutely no initiative taken. It was the government apathy7 and
indifference that not only lead to untimely deaths of several of India’s hardest workers,
but also pushed them further into crevices of helplessness. This was just the beginning
of a series of ineffective implementation of laws during Covid.

The Epidemic Diseases Act 1897 dates back to the British Raj and was formulated in
the event of the bubonic plague in 1897. The Act was invoked for the first time during

2
Inter State Migrant Workmen Act- Section 16- Facilities
3
Inter State Migrant Workmen Act 1979- Section 15- Journey Allowance
4
Inter State Migrant Workmen Act1979- Section 17-Responsibility for Payment of Wages
5
Ibid (Page 1)
6
Ibid (Page 2)
7
Coronavirus lockdown | U.P. government locks horns with Congress over buses for migrant workers.
The Hindu. (2020)., from https://www.thehindu.com/news/national/other-states/coronavirus-lockdown-
up-government-locks-horns-with-congress-over-buses-for-migrant-workers/article31622653.ece
53 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Covid 19 by several state governments and certain sections like 2 8 and Section 39 were
the centre of focus for much of the initial stages of the pandemic. Another legislation
enacted was the National Disaster Management Act 2005. It ensures that there is an
effective implementation of laws by all forms of governance in the country(official
governments and municipal and rural authorities) during a National Disaster. Both
legislations acted as a form of guidance to governments and it was heartening to see
states coming together to counter the virus and enforcing lockdown rules.

However, the difference in implementation of the acts arose when the former(ED) was
enacted earlier by States and the latter(NDMA) was done by the Centre in different time
spans. In the midst of the spurt of solidarity during lockdown, the first fissures in the
federal framework with regards to separation and delegation of powers of the
governments began to be seen.

It was here that cooperative Federalism and separation of powers went amiss.

Section 11(2)10 of the NDMA specifies that state governments are to be consulted when
formulating a National Plan and is in consonance with Section 6 11 which talks about
issuance of guidelines by the Centre in furtherance of a National Plan. The Centre did no
adhere to this and State governments were intimated of the lockdown after the official
announcement was made. This ultimately brought out resentment in different regions
regarding the handling of the crisis. Chhattisgarh had already implemented a state
lockdown on 21st March 12
while Kerala had begun quarantining and social distancing

8
Epidemic Diseases Act 1897, Section 2- Powers of the Central Government
9
Epidemic Diseases Act 1897, Section 3 -Penalty under Section 188
10
NDMA -Section 11(2) - National Plan shall be prepared in Consultation with the State Governments
11
NDMA -Powers and Functions of National Authority
12
Circular Number- 200 / nis / c / 2020 http://gad.cg.gov.in/cgcorona/Circulars/2000051.pdf.
54 Jus Carta Edition 3 ISBN 978-81-951020-1-3

measures on March 10 th13 . The Centre reacted late and states which were initially
handling the situation well, were left reeling with the thought of restructuring their
Covid dealing mechanisms that were causing economic and social problems amongst
many others. The Government had inadvertently the Doctrine of Necessity to enforce
multiple executive decrees, thereby side lining existing laws.

The most glaring aspect that hurts the existence of separation of powers is that the
Centre acted in an arbitrary manner continuously. Amongst the three lists as per the 7th
Schedule of the Constitution, the State List contains the proviso for maintaining public
order14 and health15. The Centre is not the only authority with powers to delegate orders
in such scenarios of maintaining standards of public health. The Order given by
Ministry of Home Affairs16 expressly regulated the functioning of State Public
Services17 and hospitals/ medical care facilities 18 in States and was a clear encroachment
of the Centre upon the federal structure and exclusive powers of the State as conferred
by Article 162.19 No doubt the need of the hour was to counter the virus effectively and
was in the national interest of the country. However Article 249 20 permits the Centre to
legislate over subjects in the state list but with express consent of the Council of States.
This consent of states is clearly missing from the entire discourse of the lockdown and
hence goes against the Constitutional framework laid down.

The dearth of official declarations against the actions of the Centre by states could be
attributed to precedents set by the Supreme Court. An example could be cases such as
13
Circular Number- G.O(Rt) 1264-G.Edn https://kerala.gov.in/documents/10180/8984dbba-8f16-4b7b-
802a-b05142fb9c33
14
Constitution of India, 1950, Schedule VII, List II-Entry 1
15
Constitution of India, 1950, Schedule VII, List II-Entry 6
16
https://www.mha.gov.in/sites/default/files/PR_NationalLockdown_26032020_0.pdf
17
Constitution of India, 1950, Schedule VII, List II-Entry 41
18
Constitution of India, 1950, Schedule VII, List II- Entry 6
19
Constitution of India, 1950 Art. 162- Extent of Executive Powers of State
20
Constitution of India, 1950, Art. 249, Power of Parliament To Legislate with respect to a Matter in the
State List
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State of West Bengal v Union Of India 21 where it was declared that there is “greater
weightage in favour of the Union”. Ultimately there was a massive disproportionate
centralization of powers which did not prove to be effective in dealing with the spread
of the virus. Had the management of delegated powers been effectively utilised, there
could have been a more transparent and effectively dealt with plan in place.

The politics of the pandemic continue to play out recently with the BJP promising free
Covid vaccines in Bihar as part of its manifesto as well as a vaccine by 15 th August a
few months ago. Both the aforementioned facts are proof of the government’s
opportunistic management of the pandemic in India. Keeping aside the false promises
and lack of accurate data available, the reforms taken to curb the spread were ineffective
and have proved to be an absolutely chaotic and poorly administered set of laws. Life
goes on for Indian citizens, masks continue to be worn and sanitizers continue to be
sprayed. But until there is absolute clarity and an effective decision making process,
India shall continue to suffer at the hands of a quasi-federal structure led by a
government that is too indecisive and officially incompetent to be mitigating the effects
of a deadly virus.

21
State of West Bengal v Union of India- 1963 AIR 1241
56 Jus Carta Edition 3 ISBN 978-81-951020-1-3

CRIME AGAINST WOMEN IN INDIA IN THE GUISE OF TRADITIONS

- FALGU MUKATI & LISA COUTINHO

Violence against women is perhaps the most shameful human rights violation, and it is
perhaps the most pervasive. It knows no boundaries of geography, culture or wealth. As
long as it continues, we cannot claim to be making real progress towards equality,
development and peace.

- Kofi Annan

ABSTRACT

The Indian Society of patriarchy and male dominance has treated women as the inferior
or the weaker sex since time immemorial, thus subjecting them to harassment, abuse and
torture physically, emotionally, mentally, economically and sexually. Indian culture and
tradition have always treated women as a burden. These factors have led to a significant
increase in the rates of crimes committed against them. Right from the birth of the
woman, till her death, her sole obligation is to nurture the family and be constrained to
the four walls of the kitchen. Even in the 21st century of modernization and scientific
and technological advancements, this status of women has hardly changed. In their fight
for equal status, they have strived hard for conceptualizing feminism, however the
increasing crime rates have just been playing the role of a barrier and are a hindrance in
their struggle. In this research paper, the researchers have commented upon the different
types of crimes committed against women. According to the Annual National Crime
Record Bureau’s “Crime in India” 2019 report crimes against women increased 7.3%
from 2018 to 2019, and crimes against scheduled castes also increased 7.3% from 2018
to 2019. The researchers have further analysed the various initiatives taken by the law
57 Jus Carta Edition 3 ISBN 978-81-951020-1-3

making and law enforcement agencies in their efforts for curbing the crime rates
committed against women. Although there are several laws enacted to protect women
and young girls from the various crimes committed in the name of traditions, still every
year several women and young girls suffer from such traditions. Young girls are
deprived of education and robbed of their childhood by getting them married at an age
as low as 10 years. Even today in order to protect the chastity of girl’s female genital
mutilation is practiced. Today even in the 21 st century a male child is preferred, and girls
are killed either in the womb of the mother or upon birth. Despite the introduction of
many legislations to protect women from violence and deter crimes by introducing
stringent punishments, crimes against women still continue in large numbers even
though the Indian society has gotten rid of a large number of traditional crimes that were
prevalent in ancient times.

INTRODUCTION

Crime against women is direct or indirect physical or mental cruelty to women. Crimes
which are directed specifically against women and in which only ‘women are victims
are characterized as’ Crime Against Women.

The Indian society is patriarchal in nature. It is a male-dominated society. Since the

inception of the society, women are considered as the weaker sex. According to men,
women are bound to be dominated by them. The society considers and treats women as
slaves of men. From the time of their birth, till their death, women are dominated by
men in different forms. The very mentality that women are the weaker sex and that that
they must be dominated is the root cause of crimes committed to oppress them and quiet
them. The powerful, rich and upper caste men often expect women to serve them in
every manner, primarily as a sexual favour. When they deny or resist, they are sexually
58 Jus Carta Edition 3 ISBN 978-81-951020-1-3

exploited and harassed in various ways. However, whether rich or poor, infant or
adolescent, upper caste or lower caste, women are never safe. The common sentence
told to every woman is, ‘you must leave the house with a man and not alone’, ‘do not
leave the house at night’, come back home before 6 p.m., ‘do not wear short clothes’,
‘do not dress up well’, and many such stereotypical phrases, thus, chaining their dreams
and aspirations and hampering their freedom in every way.

In India, women are considered as Goddess Laxmi upon birth, but the moment she turns
18 the society keeps on pressurizing for marriage. In a country where goddesses such as
Parvati, Kali, Durga, Saraswati are worshipped, why are women considered as a burden
on the family? The society has always differentiated men and women on several
baseless facts. It has always portrayed women as the physically weaker sex, and men as
superior and strong. It is strange how society considers women as weak. Research states
that giving birth to a child is the second most painful thing, first being burnt alive. So,
are men stronger, or women?1

Different stages in a women’s life attracts different forms of crimes against her. Upon
being informed of the mother’s pregnancy sex determination tests are conducted in order
to inquire into the gender of the unborn child. Either before or after birth the girl is
killed. Reason? We do not want to bear the burden of a girl child. 2 At the age where a
child is supposed to be educated, girls are deprived of the same, rather confined towards
helping her mother in the kitchen. Education is considered as a privilege for boys,
something that is not of use for girls. During adolescence, girls become victims of
sexual exploitation - both online and otherwise, and abuse. Post marriage, women are

1
Chandan Mukherjee, Preet Rustagi and N. Krishnaji, “Crimes against Women in India: Analysis of
Official Statistics”, 36, Economic and Political Weekly, 4070-4072, 2001
2
Crimes against women, available at http://www.womenlawsindia.com/legal-awareness/crimes against-
women/ (last visited on November 22, 2020)
59 Jus Carta Edition 3 ISBN 978-81-951020-1-3

subjected to Domestic Violence at the hands of their husband and in-laws. During
pregnancy many women are denied proper medical facilities and healthy food. At
workplace women are subjected to unequal pay for equal work, sexual harassment, work
exploitation, lack of promotion on merit basis. In a patriarchal and male-dominated
society woman are subjected to harassment, abuse and torture at every phase of their
life. No matter what, women were, are, never treated equal to men. The society wants a
woman to be a puppet and follow the instructions of her father before marriage, to her
husband post marriage, and to her son in her old age. 3

TYPES OF CRIMES AGAINST WOMEN

According to the Annual National Crime Record Bureau’s “Crime in India” 2019 report
crimes against women increased 7.3% from 2018 to 2019, and crimes against scheduled
castes also increased 7.3% from 2018 to 2019. The crime rate registered per lakh women
population is 62.4 in 2019 as compared to 58.8 in 2018. These increasing crime rates in
India gave momentum to the introduction of stringent provisions in law with the aim to
punish the convicts of such horrendous acts and further deter future crimes against
women. Further, the Delhi Gang rape case pressurized the legal machineries to
formulate such provisions. In spite of these, crimes against women still continue. Some
crimes include:

Acid attack

Acid attack is considered as the most violent, cruel, inhuman and heinous act, yet it is a
common form of crime against women. The main aim is to disfigure, torture or kill the
victim. Long term consequences of such attacks may include blindness,

3
Awadhesh Kumar Singh and Jayanta Choudhury, Violence against Women and Children: Issues and
Concerns, 2, Serials Publication, New Delhi, 2012
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permanent scarring of the face and body, as well as social, psychological, and economic
difficulties. The alarming rates of acid attack cases, the demands put forth by the Law
Commission, the National Commission for Women and other Women Rights
Organisations for separate laws dealing with the crime of acid attack, and the
suggestions proposed by the 226th Law Commission Report and Justice J.S Verma
Committee led to the inclusion of sections 326A and 326B to the Indian Penal Code
(IPC) by virtue of the Criminal Law (Amendment) Act, 2013. These sections provide
punishment for those who voluntarily cause grievous hurt by throwing acid or attempt to
do so. The offences mentioned under these sections are cognizable, non-bailable and
non-compoundable in nature. In the landmark case of Laxmi v. Union of India4,
Supreme Court directed the state authorities to enforce necessary guidelines to regulate
the sale of acid.

Dowry death

Several families continuously demand dowry from the daughter-in-law. The common
misconception is that dowry torture and dowry death is very common only in rural
areas. However, it is common in both rural and urban areas. In India as many as 20
women die daily on account of harassment and ill treatment meted out to them by their
in-laws and husband. Dowry deaths rose from about 19 per day in 2001 to 21 per day in
2016. Dowry demanded by families of bridegroom only shows that men are sold under
the legal institution of marriage.5 To prohibit and punish the perpetrators of such violent
social evils, the Dowry Prohibition Act, 1861 was enacted by the Government.
However, the legislation failed in its implementation. Further, based on the

4
(2014) 4 SCC 427
5
20 Women Die A Day: Dowry Deaths Still A Threatening Reality In India? available at
https://www.shethepeople.tv/top-stories/opinion/dowry-deaths-reality-in-india-but-until-when/ (last
visited on November 22, 2020)
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recommendations of the 21st Law Commission, dowry death was made a criminal
offence. Sections 304-B and 498-A were added to the IPC. Section 304-B defines dowry
death and provides for a punishment of minimum seven years to life imprisonment;
while section 498-A provides for punishment up to three years of imprisonment and fine
for acts of cruelty and harassment committed on the woman by her husband or the
relatives. Further section 302 provides for punishment for intentionally causing the
death of the woman and section 306 provides for punishment for abetment to suicide
wherein the husband and the relatives create such a situation for the woman which
forces her to commit suicide.

Sexual harassment at work place

Sexual harassment of women at workplace is very common and increasing in today’s

times. It is an unwelcomed behaviour of sexual nature. The action outrightly
contravenes the fundamental rights enshrined under Articles 14, 15, 19(1)(g) and 21 of
the Constitution of India. The Supreme Court, in the landmark case of Vishaka and
others v. State of Rajasthan6 defined sexual harassment at workplace and laid down
certain guidelines to prevent such acts. Following these guidelines, the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
was passed with the objective to provide protection to women at workplace. 7

Marital rape

In the Indian society, women have always been entrusted with the duty to provide sexual
pleasure to their husbands. Once a woman is married, her husband is presumed to have
every right upon her, and could treat her just as he likes. This mindset has been

6
(1997) 6 SCC 241
7
Protection Of Women From Sexual Harassment At Workplace, available at
https://www.indialegallive.com/special-story/protection-of-women-from-sexual-harassment-at-workplace/
(last visited on November 22, 2020)
62 Jus Carta Edition 3 ISBN 978-81-951020-1-3

prevalent since ages, which many a times allow the husbands to take sexual advantage
of their wives by engaging in sexual acts even without her consent. Section 375 of the
Indian Penal Code (IPC) mentions the essential ingredients required to constitute the
criminal offence of rape, along with six exceptions. One such exception includes that the
act of sexual intercourse of a man with his wife who is above 18 years of age does not
constitute to the offence of rape. Thus, clearly excluding marital rape from the ambit of
the definition of “rape”.

In 1889, in the case of Queen-Empress vs Hurree Mohun Mythee8, famously known as

the Phulmoni Dasi case, a 10-year-old girl who was a victim of marital rape, died due to
vaginal rupture. Her husband was convicted under section 338 of the IPC for causing
grievous hurt, and was sentenced to only one year of imprisonment for such a grievous
act. He escaped the charge of rape as marital rape was excluded from the ambit of the
definition of rape, and at that time there was no age limitation as well.

In 2017, in the case of Independent Thought v. Union of India and Anr.9, the Supreme
Court upheld the exception provisions under section 375 pertaining to marital rape by
affirming that it is not rape if sexual intercourse is performed by a man with his wife
who is above 18 years of age. Thus, we notice the ineffectiveness of the legal system to
punish such a heinous crime. Even today, in the 21st century, marital assault is not
considered as a crime. The exception clause is blatantly violative of Articles 14 and 15
of the Constitution of India.

Acquaintance assault

Often it is assumed that a girl is safe in her house, and that assault does not happen when
the girl is amongst her family. However, this is not true. Most of the cases of assault

8
(1891) ILR 18 Cal 49
9
(2017) 10 SCC 800
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reported are where victim knows the accused. This is known acquaintance assault. It is a
sexual assault or rape committed by the person who knows the victim, for example, a
co-worker, friend, classmate, medical consultant or even a family member. It may be
committed by any known person Cases of acquaintance assault are on the rise. This
offence is punishable under different laws depending on the nature of assault and the
relation of the victim and the accused. The legal consequences are the same as those
committed by strangers. Section 375 deals with rape and 376 provides the punishment
for the same. Further, if a sexual act is committed at the place of work, it will be under
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013. Thus, the punishment varies depending on the facts and circumstances of
each case.

Domestic violence

Domestic violence can be described as where one adult in a relationship misuses power
in order to control another. Domestic violence can be in any form such as sexual, mental
and physical. Some relationships are abusive from the beginning whereas some become
abusive slowly over some times. Although it is easier to prove physical domestic
violence, it is difficult to prove mental or emotional violence. In the former the scars or
marks of beating can be shown as a form of evidence. However, the latter form of
violence includes name calling, demoralizing the partner, doubting of character,
decreasing your confidence. Thus, it is difficult to prove mental form of domestic
violence. 10

10
Domestic violence against women: Recognize patterns, seek help, available at
https://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/domestic-violence/art-20048397 (last
visited on November 22, 2020)
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The Protection of Women from Domestic Violence Act, 2005 was a commendable
endeavor in the right direction to deal with and protect the women from violence in the
domestic set up. Section 3 of the Act defines domestic violence. The purview of the
definition is very broad in nature and includes within its ambit not just physical
violence, but also mental, emotional, economic, sexual and verbal abuse. It includes any
act - threatened, committed or omitted not just by the husband but also the relatives. In
the case of Ajay Kumar v. Lata11, the Supreme Court held that the victim (i.e., the wife)
can not only sue the husband or the male partner, but also the family or relatives of the
husband. Apart from this, the Dowry Prohibition Act, 1861 and Section 498-A of the
IPC which provides punishment for cruelty and harassment can also be enforced to
punish the perpetrators.

CRIMES AGAINST WOMEN IN GUISE OF TRADITIONS

Women’s and girls’ rights are violated frequently in the name of culture, religion and
traditions. Several traditions are practiced in the name of religion, culture without the
consent of girls, women. These are known as harmful traditions, and violate the human
rights as set out in the Universal Declaration of Human Rights. The General Assembly
adopted the Universal Declaration of Human Rights, which includes guiding principles
on human rights and fundamental freedoms in the constitutions and laws. The Universal
Declaration prohibits all forms of discrimination based on sex and ensures the right to
life, liberty and security of person, it recognizes equality before the law and equal
protection against any discrimination in violation of the Declaration.

Every religion and social groups have some specific traditional cultural practices, some
are beneficial to the members while some are harmful for certain group of people, such

11
(2019) SCC OnLine SC 726
65 Jus Carta Edition 3 ISBN 978-81-951020-1-3

as women. Some harmful traditional practices practiced in the name of culture,

traditions are female genital mutilation, honour killing, forced feeding of women, early
marriage, various practices preventing women from controlling their own fertility,
nutritional taboos and traditional birth practices, son preference and its implications for
the status of the girl child, female infanticide, early pregnancy, and dowry price. 12

Some crimes against in the name of traditions are-

Female genital mutilation

Female genital mutilation (FGM) involves partial or total removal of the external female
genitalia for non-medical purposes. It interferes with the natural functioning of the body.
It has no health benefits. It is an age-old practice perpetuated in several communities in
the name of tradition. It is believed that this custom ensures a woman's virginity before
marriage and chastity. Female genital mutilation is carried out at a very young age,
generally before attaining 15 years. The average age of girls ranges from 7 years to 10
years. It is estimated that more than 200 million girls and women alive today have
undergone female genital mutilation. FGM is recognized as violation of human rights of
girl and women. Very often in rural areas the instruments used to carry out the operation
are not sterilized and unhygienic. Instruments such as sharp piece of glass, sharp finger
nail, razor blade, or a kitchen knife is used, and the operation is carried out by mothers
or grandmother who lacks medical knowledge. The wounds are quite often treated with
ash, cow dung, butter, earth, or herbs depending on the availability and the knowledge
of the person who carries out the operation. FGM is practiced in various countries such

12
NCRB data: 7% rise in crimes against women, available at https://indianexpress.com/article/india/ncrb-
data-7-rise-in-crimes-against-women-6636529/ (last visited on November 22, 2020)
66 Jus Carta Edition 3 ISBN 978-81-951020-1-3

as Indonesia, Malaysia, Yemen, some parts of European countries, India, and Africa. In
13
Africa it is practiced in as many as 25 countries.

FGM has several short-term and long-term implications. Short-term implications include
severe pain, excessive bleeding, haemorrhage, genital tissue swelling, fever, infections
for example tetanus, urinary problems, wound healing problems, injury surrounding
genital tissue, shock, death. Long-term complications include infertility, menstrual
problems, increased risk of complications during child birth, death of the new born,
urinary tract infection, anemia, chronic infections, psychological problems such as
depression, anxiety and much more. 14

Son preference and its implications for the status of the girl child

India being a patriarchal and male-dominated has always preferred male child over a girl
child. “ladka khandan ka naam roshan karega, ladki to paraya dhan hoti hai, ladka”,
these sentences have been said time and again by the society. Having a male child is
considered as prestige, whereas having a girl child is considered as a burden on the
family. A male child is considered as an investment, whereas girl is considered a
liability. One of the principal implications of discrimination between the two gender on
girl child is that girls are deprived of healthy and nutritional food, education, recreation,
right to choose her partner. It is believed that male child will be the bread earner in the
family, the son will take care of the parents in their old-age, whereas daughter post
marriage will go to her husband’s house and thus will not take care of her old parents.

13
Female Genital Mutilation, available at https://www.who.int/news-room/fact-sheets/detail/female-
genital-mutilation (last visited on November 23, 2020)
14
Harmful Traditional Practices Affecting the Health of Women and Children, available at
https://www.ohchr.org/Documents/Publications/FactSheet23en.pdf (last visited on November 23, 2020)
67 Jus Carta Edition 3 ISBN 978-81-951020-1-3

According to the Hindu tradition a son is necessity.15 It is believed that when the son
lights the funeral pyre of his parents, they attain moksha, the same would not be attained
if the daughter performs the last rites. Preference for son is universal and limited to any
one religion or community. It is believed in many societies that sons will carry the
family lineage ahead. Preference for son over girl is not restricted to rural societies but
also prevalent in the urban areas. In many households from the time a girl child is born
the family starts collecting money for her marriage and dowry, instead of providing her
good education. Instead of collecting money and marrying her of at 18 they should
educate her. When you educate a man you educate a man, when you educate a woman
you educate an entire generation. 16

Female foeticide and infanticide

Female foeticide is the abortion of female foetus illegally. Female infanticide is killing
of girl child post birth. In India the urge of having a son is so immense that several
uneducated as well as educated people either abort the female foetus or kill the girl child
upon birth. Sex determination tests are banned long back, however, there are several
clinics across the country where sex determination tests are conducted and female foetus
are aborted. The ancient Indian vedic texts refer women as “aamraajini”, which means
queen or mistress of the home. According to the recently released report by United
Nations Population Fund (UNFPA) nearly 4.6 crore females are missing in Indian
demography in the year 2020, mainly due to pre- and post-birth sex selection practices
stemming from son preference and gender inequality. India has the highest amount of

15
Of daughters and sons – Why Indians prefer a son as their first child? available at
https://timesofindia.indiatimes.com/readersblog/loveyourself/of-daughters-and-sons-why-indians-prefer-
sons-as-fist-child-3073/ (last visited on November 23)
16
About 4.6 crore females 'missing' in India due to son preference: UNFPA report, available at
https://www.theweek.in/news/india/2020/07/01/about-46-crore-females-missing-in-india-due-to-son-
preference-unfpa-report.html (last visited on November 23, 2020)
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female foeticide every year. 2011 census data shows that states such as Punjab, Haryana,
Gujarat and Maharashtra have a very bad child sex ratio, whereas some of the lesser
developed regions like Chhattisgarh and north eastern states have a much better child
sex ratio. Various bills enacted and passed by the parliament have failed to curb female
foeticide and infanticide. 17

Early and forced marriages

The Prohibition of Child Marriage Act, 2006, prohibits the practice of child marriage
across the country. However, child marriages are practiced even today. Girls as young as
10 years are married off. In India 27% of the girls are married before 18 years and 7%
are married before 15 years. India also has the highest number of women below the age
of 18 who are either married or in a union. Child marriages are more prevalent in the
rural areas. Child marriage robs the childhood of the girl. The patriarchal social norms,
chastity of her daughter, poverty, societal pressure are the prime reasons of child
marriage. Girls are considered as a burden on family and thus are married of at an early
age in order to get rid of her. Households that are poor and cannot afford to pay dowry
get their daughters married of at a young age as less dowry is required for young brides.
If the girls are not married at a younger age and are educated then it becomes difficult to
find a suitable bridegroom as people prefer uneducated girls who can be dominated and
which would do all the household chores and take care of the family. Moreover, a
daughter’s chastity is considered as her father’s honour, thus, they get their daughters
married off after they attain puberty.

Since girls are considered as the weaker sex, they are not given the right to choose their
own partner, quite a lot times they are forcibly married to without asking them of their

17
Female foeticide, available at https://timesofindia.indiatimes.com/readersblog/rightpath/female-
foeticide-2780/ (last visited on November 23, 2020)
69 Jus Carta Edition 3 ISBN 978-81-951020-1-3

choice. Many women do not wish to get married after attaining the age of 18 years, but
the societal pressure is much that many families even in the urban areas get their
daughters married after 18 years. However, who asks a woman? Majority times they are
forced in to marriages. 18

LAWS ENACTED AND PASSED FOR THE PROTECTION OF WOMEN’S RIGHTS

Over time various laws have been framed and enacted for the protection of women’s
19
rights, of which every woman must be aware of. Some of them being:

1) The Prohibition of Child Marriage Act, 2006

2) Special Marriage Act, 1954
3) Dowry Prohibition Act, 1961
4) Indian Divorce Act, 1969
5) Maternity Benefit Act,1861
6) Medical Termination of Pregnancy Act,1971
7) Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013
8) Indecent Representation of Women (Prevention) Act,1986
9) National Commission for Women Act, 1990
10) Equal Remuneration Act, 1976
11) The Immoral Traffic (Prevention) Act, 1956
12) The Commission of Sati (Prevention) Act, 1987
13) Protection of Women from Domestic Violence Act, 2005

18
Child Marriage, available at https://www.girlsnotbrides.org/child-marriage/india/ (last visited on
November 23, 2020)
19
Know your rights: 10 laws that protect women and their rights, available at
https://yourstory.com/2016/06/laws-that-protect-women-rights (last visited on November 23, 2020)
70 Jus Carta Edition 3 ISBN 978-81-951020-1-3

14) The Criminal Law (Amendment) Act, 2013

15) Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994
16) Hindu Succession Act, 1956, with amendment in 2005

CONCLUSION

Women have been oppressed and tortured since time immemorial. The nature and rates
of crime has only been increasing. It is pertinent to note that over the years the Indian
society has adapted to modernization and has willingly or unwillingly embraced change.
Dynamism in terms of education, conscience, intellect and legality has enabled the
society to understand the need to strive for an equal status of both genders. The evolving
concept of feminism too has contributed in the similar direction. Over the years, several
laws have significantly helped to prevent and eradicate many traditional crimes which
were deeply rooted in the Indian culture and Indian society; however, the modern era of
scientific and technological advancement has equally led to the introduction of many
other novel crimes against women like cyber stalking, sexual harassment at workplace,
pornography, etc. Thus, it becomes very important for the law enforcement agencies to
introduce stringent and comprehensive laws to punish the perpetrators. It is equally
important for the society too to change their conservative mind-sets while looking at
women and treat them as equal humans. The societal pressure, fear of tarnishing one's
reputation, delay in justice, lack of adequate awareness of the laws, etc. are contributing
factors which prevent women from getting justice.
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CRYPTOCURRENCY AND ITS REGULATIONS

- NAVYA ARORA

ABSTRACT

With increasing innovation and discoveries new technologies emerge each day, one of
them is ‘Cryptocurrency’. Cryptocurrency is a currency which is virtual or digital and is
meant to be a medium of exchange .This article identifies the understanding of
cryptocurrency and block chain technology. Past few years have observed a rapid
evolution of these currencies and these currencies have been making strides all across
the globe ever since. Although, there is no complete legal backing for cryptocurrencies
yet the legislatures of various countries have been rushing towards the creation of a
strong and sturdy framework to regulate the cryptocurrencies and crypto exchanges. On
one hand some countries have greeted them with a warm reception while on the other a
few countries have been ruthless in their pursuit to ban them. This article seeks to throw
light on the legal status of virtual currencies around the world with major emphasis on
India.

INTRODUCTION

Since man evolved currency has been a very important part of our life. In the caveman
era, Man used the barter system. Barter system involves exchange of goods and services
among each other. But the barter system fell out of use because it had some grave flaws
like double coincidence of want, no common measure of value, problem of storage of
value and transfer of value.
72 Jus Carta Edition 3 ISBN 978-81-951020-1-3

After realizing that the barter system didn’t work very well, currency went through a
few alterations and in 110 BC currency was officially minted. In 1250 AD gold plated
florins were introduced and from 1600 AD- 1900 AD paper currency gained widespread
popularity and were being used all over the globe. This is how modern currency, as we
know it, came into existence.

Today Modern currency includes paper currency and coins, credit cards debit cards and
digital wallets. All of transactions are controlled and regulated by the banks and
government which implies the existence of a centralized regulatory authority limiting
how paper currencies and various cards work.

Although this e-currency has been very convenient and easy to use, there were some
downsides to the transactions carried through them like- transaction could fail due to
technical issue at the bank, user’s account could have been hacked, the transaction could
fail if the transfer limits for the account were exceeded etc

In order to remove all the problems of modern banking, cryptocurrency was born.
Cryptocurrency is a currency which is virtual or digital and is meant to be a medium of
exchange. It is quite similar to real world currency except that it does not have any
physical embodiment. It uses cryptography to conduct financial transactions and
leverages blockchain technology to gain decentralization, transparency, and
immutability. There are no limits to the funds you can transfer, your accounts can not be
hacked and there is no central point of failure.

As of 2016 there are more than 1600 cryptocurrencies available. Popular

cryptocurrencies are Bitcoin, Litecoin, Ethereum, Z-cash. Considering the current
growth, there is going to be plenty more to come in future. Some salient features of
cryptocurrency are:
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1) There is a limit to how many units of the currency can exist.

2) Transfer of funds can be easily verified
3) They operate independent of a call or any central authority.
4) They work in a decentralised manner. New units can be added only after certain
conditions are met.
5) There is little to no transaction cost.
6) There are no limits on purchase or withdrawals
7) International transactions are faster.
8) Freedom for anyone to use it. For setting up an account in a bank a person needs
to submit certain documents but it isn’t so with cryptocurrency.

HOW DOES CRYPTOCURRENCY WORK?

A cryptocurrency is a digital medium of exchange which is encrypted and decentralized.

Its value is not maintained by a central authority, unlike Euro, rupees or dollars. Instead,
the task of central authorities is distributed among the users of cryptocurrency through
internet.

Satoshi Nakamoto, father of bitcoin, first outlined cryptocurrency principle in a 2008

paper titled “Bitcoin: A peer-to-peer Electronic Cash System” and described it as an
electronic payment system based on cryptographic proof instead of trust.

This cryptographic proof comes in the framework of transactions that are verified and
recorded in a program called a blockchain.

A blockchain is a ledger which is open and distributed and records transactions in codes.
It can be compared to a cheque-book which is distributed across a number of computers
74 Jus Carta Edition 3 ISBN 978-81-951020-1-3

across globe. All the transactions are recorded in “blocks” that are linked together on
“chain” of previous transactions over the internet.

In a blockchain technology, all the people who use a cryptocurrency have their own
copy of this chain which creates a unified transaction record. Each time a new
transaction occurs, the software updates every copy of the blockchain simultaneously
with the new transaction, hence maintaining an identical and accurate record always.

There are also techniques called proof of work and proof of stake which are used to
check each transaction in order to prevent fraud.

LEGAL STATUS IN INDIA

In India, cryptocurrencies as of now are unregulated. However, the Reserve Bank of

India and the Government of India banned dealing in cryptocurrency previously through
RBI’s notification dated 6 April 2018, titled ‘Prohibition on dealing in Virtual
Currencies’1 and banned all banks and financial institutions from providing services to
transactions related to virtual currencies. The government, namely, The Ministry of
Finance and the regulatory institution RBI have had very clear remarks on virtual
currency. In the past they have warned the public of the ill effects of cryptocurrency,
including money laundering, consumer protection, market integrity, volatility and
cybersecurity. It is a well - known fact that virtual currency can prove to be a threat to
the cyber security of a person. This very well proves that The Indian government and
Currency Regulatory authority had reserved views towards the usage and exchange of
cryptocurrency.

1
Reserve Bank of India, ‘Prohibition on dealing in Virtual Currencies (VCs)’, 6 April 2018
75 Jus Carta Edition 3 ISBN 978-81-951020-1-3

This ban attracted a lot of criticism and many Indian crypto companies like Unocoin and
Zebpay were forced to either wind up their business or to move abroad. But a few Indian
crypto companies and associations went to the apex court, challenging the RBI’s
announcement and as a result on 4 march 2020, supreme court set aside the crypto ban
notification through its judgement Internet and Mobile Association of India v Reserve
Bank of India2 and hence a new life was given to crypto companies and their dealers.

At present, buying cryptocurrency is completely legal in India, there is no law

prohibiting the buying or selling of cryptocurrencies in India.

Although, the Parliament intends to bring in the Cryptocurrency and Regulation of

Official Digital Currency Bill, 2021 ("Crypto Bill") in its current session which is
ongoing. The mentioned bill seeks to provide a framework for operation of digital
currency in India, backed by the government or RBI, ban all the private cryptocurrencies
while laying out certain exceptions to promote the underlying technology of
cryptocurrency.

HOW WILL CRYPTOCURRENCY BE REGULATED?

The stakeholders of cryptocurrency have been advocating for its regulation. As currency
is an inalienable element of any state and cryptocurrency falls within this ambit, it may
be subject to heavy regulations and supervision from authorities like:

1. The central bank, for regulating cryptocurrencies as a legal tender

2. The Directorate of Enforcement, for banning of use of cryptocurrency in
economic offences

2
Internet and Mobile Association of India v Reserve Bank of India, Supreme Court of India, 4 March
2020
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3. The Department of Economic Affairs, for interference of cryptocurrencies in

economic policies of state
4. The Securities and Exchange Board of India (SEBI), for use of cryptocurrencies
in security contracts
5. India’s tax authorities, for tax implications on trading in cryptocurrencies

Therefore, building a strong framework for the same can prove to be a laborious task for
the Indian government.

RBI may count on the blockchain infrastructure to regulate the crypto-space and in order
to minimize illicit use and ensure safety RBI may consider issuance of licenses to crypto
exchanges after proper scrutiny and introduce a framework through which the
transaction records are submitted to RBI within stipulated time.

Trading aspects of the virtual currency may be regulated by SEBI. This may decrease
the chances of embezzlement and also boost the confidence of traders.

A branch of Finance Ministry conducted a study of levying taxes like GST on virtual
currency and the proposal for same has been put forward to the Central Board of
Indirect Taxes & Customs. The income gained from buying and selling of
cryptocurrency can be treated as capital gains and through this an eye can be kept on
illegal transactions.

At present the Indian citizens have rifled themselves into the use, trade and sale of
cryptocurrencies and highly successful businesses and start-ups which are driven by
blockchain technology have been established through crypto exchanges and hence
crypto cannot be eradicated completely. The pandemic lockdown can be observed as a
very successful phase where trading of crypto increased in manifolds.
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While the stakeholders look forward to the government’s decisions regarding the virtual
currency and its ban, a clear notion among them is that like every banned activity, the
activity does not cease to exist but instead moves towards establishing jurisdictions that
permitting such activity. The introduction of Crypto bill can be a welcome step for the
industry. The citizens are in high anticipation and await the policy maker’s next move to
see if there will be a straight forward ban or a regulatory framework will come into
force.

CRYPTOCURRENCY REGULATIONS AROUND THE WORLD

Due to soaring rise in the popularity of the cryptocurrency, countries around the world
have been running about to build some regulatory framework for these virtual currencies
and non-fiat currencies. Various countries across the globe have taken varying
approaches for the same. Even though the outlook is still evolving here are a few
countries and their approaches towards regulating cryptocurrency.

The United States

Cryptocurrencies are legal in the united states but are not backed by consistent
legislatures. The laws differ from state to state and don’t seem to coincide with the
federal laws. For instance, cryptocurrencies are considered as money transmitters by the
Financial Crimes Enforcement Network (FinCEN) whereas it is regarded as property by
Internal Revenue Service (IRS). Cryptocurrency exchanges also experience uncertainty
as different regulators claim jurisdictions. Policies vary greatly and a consistent
approach is needed.
78 Jus Carta Edition 3 ISBN 978-81-951020-1-3

The US treasury has been vocal about the regulation of virtual currencies in order to
keep a check on criminal activities and the government is working on creating a robust
framework.

The European Union

While cryptocurrency is broadly considered as legal across the union, the rules for
exchanges vary across the member states. No specific legislation has been passed by the
EU parliament and as a result various policy like taxation vary, ranging anywhere
between 0-50% and crypto is subject to capital gains tax. Registration of the exchanges
with their local financial authorities is essential and from there they can carry their
operations across the entire EU. Crypto exchanges also have to follow the EU’s anti-
money laundering regulations as per the 5th AML Directive. Fortunately for a few, the
exchange of FIAT currency to crypto is not subjected to VAT.

Russia

It is complicated to decide the legal status of cryptocurrency in Russia as the virtual

currency here has been considered to be a money substitute and money substitutes are
illegal in the country as per recent laws of 2019. There is still unclarity about what
cryptocurrency is defined as and what all its uses can be. But new proposals which are
being made which if turned into law could allow confiscation of the cryptocurrency. It is
still hazy as to how the government plans to confiscate crypto as it is anonymous and
decentralised.
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China

Unlike most countries, cryptocurrency is completely illegal in china. In 2013, all the
financial institutions were barred from handling bitcoin transactions as per the orders of
People’s bank of china. The restrictions have gone even further banning ICOs and
domestic cryptocurrency exchanges in 2017. The government plans on banning bitcoin
mining as well, which was legal or at least in the grey area. The government has been
relentless in its pursuit of banning cryptocurrency and has some of the strictest anti-
cryptocurrency laws across globe.

Australia

Both cryptocurrencies as well as exchanges are considered as legal in Australia and

therefore Australia is among one of the most progressive countries when it comes to
crypto regulations. Virtual currencies like bitcoin and others with similar properties are
regarded as public property and are subject to capital gains tax. AUSTRAC, Australia’s
financial regulatory body, has constructed very sturdy regulations for crypto exchanges
to limit the criminal activities like laundering and terrorist financing, making the
exchanges subject to rules that are similar to that of financial institutions.

Japan

When it comes to cryptocurrency Japan is considered as the most progressive country in

the world. The country was regarded as world’s biggest bitcoin market in 2017. The
cryptocurrency is observed as a legal property and is taxed under miscellaneous income
and the exchange regulations happen to be progressive as well. However, in the past few
years, a number of high-profile crypto exchange hacks taken place resulting into stricter
laws. In the aims to find a balance between progress and regulation Japan now has its
own regulatory body specifically for cryptocurrency exchanges.
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CONCLUSION

The legislations regarding the regulation of cryptocurrencies widely vary all across the
globe. On one hand some countries welcome this innovation with warmth while on the
other hand others ruthlessly ban all kinds of dealings in virtual currencies. Despite all
the efforts to eliminate crypto, its popularity continues to thrive all over the world.

Cryptocurrency has been gaining an upper hand over the others because it is protected
from inflation as only a certain amount of it can be released at a time, this leads to
increase in its demand which will prevent inflation in a long run. In addition to that, it is
self-governed and managed which maintains crypto’s integrity. All the transactions are
more private and secure as compared to other electronic transactions. Since virtual
currencies can be bought using a number of global currencies it makes currency
exchange easier and also offers quick transfer of funds.

But every coin has two sides, numerous concerns arise when it comes to cryptocurrency
and they revolve around potential uses for terrorist funding, money laundering and for
other illegal transactions. As the privacy and security of cryptocurrency transactions are
high, it is really difficult for the government to trace a user through their wallet address
or keep tabs on their data. As a consequence, currencies like bitcoins are used as a mode
of payment in a number of illegal deals on the dark web. Not only that, cryptocurrencies
are also being used to convert illegally obtained money through a clean intermediary in
order to hide its source. Furthermore, transactions once done can’t be cancelled and
therefore there is no provision for refunds.

Even though crypto does present a risk, cryptocurrency isn’t used by criminals as much
as conventional fiat currencies are. In my opinion, total ban is not a solution rather
government should focus on channelising its benefits and capitalize on the underlying
81 Jus Carta Edition 3 ISBN 978-81-951020-1-3

technology. A framework regulating issues regarding the acceptance of cryptocurrency

as legal tender, tax, security contracts , trading of crypto etc should be developed
keeping in mind the interests of all the stakeholders and market participants. Such a
framework should be implemented in phases for practical ease.

With time the regulations will develop and it is unknown whether Financial Action Task
Force (FATF) will introduce some guidelines for regulating crypto on an international
level.

However, cryptocurrency should be viewed as an asset as the benefits provided by its

use outweigh its cons and as a consequence it keeps gaining grounds all around the
world despite consistent attempts of the government to eradicate it. If a robust
framework for its regulation becomes a reality, cryptocurrency will make a bright future
in India, and will continue to evolve and advance over the years.
82 Jus Carta Edition 3 ISBN 978-81-951020-1-3

HONOUR KILLINGS AND ITS LEGAL VARIABLES

-NIKITHA SURESH & LUCY SARA GEORGE

Violence in all matters especially in matters of sexuality and marriage is one of India’s
tenacious forms of gender violence. It is a form of violence that hides in plain sight.
Caste, as Dr. B.R. Ambedkar once said, “is a mental state, therefore it cannot be
eradicated through constitutional measures alone”. Centuries-old abomination was
legally overturned by the Hindu Marriage Act, defended in the Hindu Code Bill debates
in 1951 by Dr.Babasaheb Ambedkar. The Bill removed the condition that the couple
must belong to the same caste to make the marriage a legal Hindu marriage.
Ambedkar’s proposal was met with the rage and fury of the entire Hindu orthodoxy who
accused him.

Honour based violence (HBV) can be described as a set of practices used to control the
behaviour of individuals – within families or other social groups – in order to protect
perceived beliefs related to honour.

The Caste councils or Panchayats popularly known as ‘Khap Panchayats’ try to adopt
the chosen course of ‘moral vigilantism’ and enforce their diktats by assuming to
themselves the role of social or community guardians.”

Incidents of murder and other grave offences committed against persons marrying or
proposing to marry sagotras or outside their castes/religions are periodically reported. It
is learnt that number of cases goes unreported for fear of reprisals or cascading effects.
The intervention of caste/community assemblies in the name of ‘KhapPanchayats’,
‘KattaPanchayats’ etc. in the occurrence of these offences and other related incidents
involving serious life and liberty consequences, are frequently noticed. Such assemblies
gathered on caste lines assume to themselves the power and authority to declare on and
83 Jus Carta Edition 3 ISBN 978-81-951020-1-3

deal with ‘objectionable’ matrimonies and exhibit least regard for life and liberty and
are not deterred by the processes of administration of justice. The penal law lacks direct
application to the illegal acts of such caste assemblies and needs to be amended.
Meanwhile innocent youth are harassed and victimized while such assemblies continue
to wield unhindered authority and also seem to resist any suggestion of being subjected
to any social control.. The pernicious practice of Khap Panchayats and the like taking
law into their own hands and pronouncing on the invalidity and impropriety of Sagotra
and inter-caste marriages and handing over punishment to the couple and pressurizing
the family members to execute their verdict by any means amounts to flagrant violation
of rule of law and invasion of personal liberty of the persons affected. Sagotra
marriages are not prohibited by law, whatever may be the view in olden times. The
Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispel any
doubts in this regard.

In a very recent case – ArumugamServai vs. State of Tamil Nadu 1the Supreme Court
strongly deprecated the practice of khap/kattapanchayats taking law into their own
hands and indulging in offensive activities which endanger the personal lives of the
persons marrying according to their choice. . Some proposals are being mooted
proposing amendments to Section 300 I.P.C. by way of including what is called
‘Honour Killing’ as murder and shifting the burden of proof to the accused. These
proposals have been studied. The views from various quarters at an informal level have
also been ascertained. After a preliminary examination of these and certain other models
of law, a broad framework of proposed law to deal with the situation has been prepared
and annexed herewith.

1
ArumugamServai vs. State of Tamil Nadu (2011) 6 SCC 405
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It is set forth that the actions which are found to be linked with honour based crimes are-
(i) loss of virginity outside marriage; (ii) pre-marital pregnancy; (iii) infidelity; (iv)
having unapproved relationships; (v) refusing an arranged marriage; (vi) asking for
divorce; (vii) demanding custody of children after divorce; (viii) leaving the family or
marital home without permission; (ix) causing scandal or gossip in the community, and
(x) falling victim to rape. Expanding the aforesaid aspect, it is stated that some of the
facets relate to inappropriate relationship by a woman some of which lead to refusal of
arranged marriages.

A Bill titled ‘The Prohibition of Interference with the Freedom of Matrimonial Alliances
Bill’ has been recommended by the Law Commission of India vide the 242nd Law
Commission Report. The idea underlying the provisions in the draft Bill is that there
must be a threshold bar against congregation or assembly for the purpose of objecting to
and condemning the conduct of young persons of marriageable age marrying according
to their choice, the ground of objection being that they belong to the same gotra or to
different castes or communities.2

In 2000, the United Nations (UN) estimated that there are around 5,000 honour killings
every year worldwide. According to the Human Rights Watch, the mere perception that
“a woman has behaved in a way that ‘dishonours’” her family is sufficient to trigger an
attack on her life3.So far, there is no specific law to deal with honour killing. Suck
murderers usually come under homicide or manslaughter. Honour killings are against
International law on Human Rights and UN agenda.

The Supreme Court has delivered conflicting judgements on the issue of honour killings.

2
https://oratorslawacademy.com/prohibition-interference-freedom-matrimonial-alliances-bill/
3
https://www.epw.in/journal/2013/50/notes/human-rights-honour-killings-and-indian-law.html
85 Jus Carta Edition 3 ISBN 978-81-951020-1-3

A bench headed by Justice Markandey Katju in Lata Singh's case had said, ''Honour
killings are nothing but barbaric cold blooded murder and no honour is involved in such
killings.'' The Supreme Court while dropping all criminal proceedings against Singh's
husband and her in-laws had gone to the extent of observing that ''inter-caste and inter-
religious marriages should be encouraged to strengthen the social fabric of society.'' But
the new National Human Rights Commission (NHRC) chief, Justice K G Balakrishnan,
has described khappanchayats as social organisations though he has disapproved the
killings ordered by these panchayats.

In one of the judgements, another bench of the Supreme Court headed by Justice
Deepak Verma commuted the death sentence to life imprisonment of a man who killed
five members of the family of his brother-in-law as his sister married outside her caste.

Justice Verma in the judgement said, ''Such killings do not fall in the category of the rare
of the rarest as the family of the girl has to face lot of taunts and humiliation in the
society for the acts of the girl.'' In this case the brother of the girl, who belonged to Uttar
Pradesh, had killed five members including his brother-in-law who was a Scheduled
Caste. Judiciary has progressed from here Five men have been sentenced to death and
one jailed for life over the 2007 murder of a couple who married against the wishes of
village elders.4

In India, Honour killings are homicide and murder which are serious crimes under the
Indian Penal Code. The preparators can be punished as per Section 302 of the IPC. The
members, as well as the community, can also be prosecuted. It also violates Article 14,
15 (1) and (3), 19, 21 and 39 (f) of the constitution of India.

4
https://news.webindia123.com/news/articles/India/20100613/1525659.html
86 Jus Carta Edition 3 ISBN 978-81-951020-1-3

EXISTING PENALTIES UNDER INDIAN PENAL CODE

1. Sections 299-304: Penalises any person guilty of murder and culpable homicide
not amounting to murder. The punishment for murder is life sentence or death
and fine. The punishment for culpable homicide not amounting to murder is life
imprisonment or imprisonment for up to 10 years and fine.
2. Section 307: Penalises attempt to murder with imprisonment for up to 10 years
and a fine. If a person is hurt, the penalty can extend to life imprisonment.
3. Section 308: Penalises attempt to commit culpable homicide by imprisonment
for up to 3 years or with fine or with both. If it causes hurt, the person shall be
imprisoned for up to 7 years or fined or both.
4. Section 120A and B: Penalises any person who is a party to a criminal
conspiracy.
5. Sections 107-116: Penalises persons for abetment of offences including murder
and culpable homicide.
6. Section 34 and 35: Penalises criminal acts are done by several persons in
furtherance of common intention

The Khap Panchayat also play a key role in an honour killing. These panchayats are
self-driven setups that have gained wicked popularity for having paved a way for honour
killing. Boycotting families from villages that chose to allow their children to get
married by their choice and supporting the families in honour killing are some of the
naive activities of these panchayats. All these inhumane activities are done in the name
of brotherhood and honour of the community. Love marriages are considered a taboo in
these areas.
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In the State of Maharashtra v Eknath Kisan Kumbharkar 5, it was held that honour
killings have become commonplace in many parts of the country, particularly in
Haryana, western Uttar Pradesh and Rajasthan. Often young couples who fall in love
have to seek shelter in the police lines or protection homes, to avoid the wrath of
kangaroo courts.

“We have held in Lata Singh case that there is nothing “honourable” in honour killings,
and they are nothing but barbaric and brutal murders by bigoted persons with feudal
minds. In our opinion honour killings, for whatever reason, come within the category of
the rarest of rare cases deserving death punishment. It is time to stamp out these
barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent
for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate
“honour” killings should know that the gallows await them”.

The Supreme Court delivered a scathing judgement against khap panchayats or

communal assemblies that target inter-caste and inter-religious couples and put in place
a slew of preventive, remedial and punitive guidelines to tackle the menace of so-called
honour crimes.

In a 54-page judgement authored by Chief Justice of India DipakMisra, the court said
“the act of honour killing puts the rule of law in a catastrophic crisis” and said it was the
duty of the government to protect the life and dignity of those harassed by the
assemblies. No individual or group has the right to interfere in a consensual and legal
relationship between two adults, the court asserted.

“It can be stated without any fear of contradiction that any kind of torture or torment or
ill-treatment in the name of honour that tantamounts to atrophy of choice of an

5
State of Maharashtra v Eknath Kisan Kumbharkar 2019
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individual relating to love and marriage by any assembly, whatsoever nomenclature it

assumes, is illegal and cannot be allowed a moment of existence.”

The eradication of honour killing requires a serious intervention in the status quo. Equal
gender relations have not been yet achieved and violence still exists in the name of
honour. Therefore, it is the state and the society responsibility to protect human rights of
its citizens and avoid honour killings, to create possibilities and opportunities for the
people concerned to break free and to find the protection, support and aid. It also
suggested that the honour killing like social evil cannot be eliminated through Law
alone, rather almost every substitution social, economic, cultural, political, will have to
be sensitized against this crime, no doubt Law could be the only tool to fight this
heinous practice. The violence will only be reduced when this patriarchal mindset is
challenged.

Until 2013, the National Crime Records Bureau (NCRB) had 12 causes/motives of
murder, and honour killing was not one of them. It was only from 2014 that honour
killing was recognised as a separate cause/motive for murder, one of another six added
to the records.NCRB reports show that in 2014, there were a total of 28 cases of honour
killing reported, while in 2015, the number shot up to 192, which is almost
an 800% increase.6

The following suggestions are made in order to ensure the efficacy and efficiency of the
state. If these recommendations are admit to be true so that everyone can live with
human dignity and honour in society. It is easy to process to curb the customary evil
practices from society.

6
https://www.thenewsminute.com/article/india-needs-separate-law-tackle-honour-crimes-activists-
demand-govt-listening-62382
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The Central and State Government should take initiative to ensure an adequate new
stringent legislation on honour killing and religion-based crimes and to impose serious
penal sanctions against community leaders who approve or tolerate such honour crimes.

The Government has enacted many laws however it does not mean that it will give
justice and protect discrimination in the society. It requires seeing that better
implementation of laws for developing the status of women hood and elimination of
unauthorized institution in the society like KhapPanchayat is also necessary. Laws are
meaningless without there being a proper implementation of such laws in society.

There is an urgent need for a specific legislation like Prevention and Control of Honour
killing Act on the equal footing of Sati Prevention Act, 1987 and Dowry Prohibition
Act, 1961 etc.

All forms of violence against women and men committed in the name of honour should
be criminalised and those deliberately participating in facilitating, encouraging or
threatening any type of violence against women and men in the name of honour should
be punished.

Awareness should be created in the minds of people passing on a message that there is
no honour in honour killing and the incidents of sex-selective abortions, female
infanticides, genital cutting, rape, physical assault and forced marriage will be treated as
honour killing cases.

Now it is time to take stringent action against honour killings at International and
national levels. This study reveals that the state, central government and judiciary has
played its role quite effectively and has always upheld the basic principles of human
dignity. It has investigated a several cases involving serious violations of human dignity
of citizens.
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NEED FOR CRIMINALISATION OF MARITAL RAPE

- APARNA BARPANDA

ABSTRACT

This article aims at defining marital rape and its relevance in India in the contemporary
times. It also brings to forth the present stance of the Indian Legal system on this issue
and the attitude of the lawmakers towards criminalizing it. An analysis with regard to
the fallacy of these reasons has also been identified and a number of reasons for
criminalizing it have also been made. A few suggestions/ recommendations with respect
to the reforms required have also been mentioned. The article aims at bringing home the
idea that marital rape should be criminalized and has worked to justify it.

INTRODUCTION

Marital rape also known as statutory refers to sexual intercourse with one’s spouse
without his/her consent. The particular victims of this are the women. Marital rape has
not been criminalized in India, rather it stands as an exception 1 meaning a man shall not
be held liable for having sexual intercourse with his wife despite the fact that his wife is
neither willing to nor consenting to such an act. This issue has been raised multiple
times over multiple platforms and by multiple agencies but without yielding any
significant results. This might also indicate the indifference of the system to make a
progressive change towards women and the differential treatment meted out to them
only because of their relationship status. This paper aims at highlighting the reasons for
such reluctance to bring about a change and also suggests certain solutions that might be

1
Section 375, exception 2, IPC
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helpful in moving the way forward to creating better and safer spaces for women not
only in the public but also in their private and personal lives.

REASONS FOR NON-CRIMINALISATION OF MARITAL RAPE

The history of prejudice against women militates against a freer future. This is true not
only in the Indian context but across the globe and its evidence lies in the fact that only
52 countries out of the hundreds of countries that exist recognize the existence of marital
rapes and the need to have laws to prevent it. In the Indian context there are several
reasons justifying the dispensable nature of the marital rape laws. A further analysis may
make things clearer.

The first argument that is advanced to exonerate a husband of any liability towards the
commission of such a heinous act is that a woman is considered a chattel of her husband
and has no identity of her own. This creates an impression in the minds of such
perpetrators that they own a woman and can do whatever they please to. In a country
like that of India it is unimaginable that women are the persons that are worshipped and
are the same persons who are subservient to the men they are married to. However this
particular argument does not hold any water anymore because with the
decriminalization of adultery2 a new phase was unleashed in the Indian jurisprudential
history defining clear and specific identity and personality of women. However, in
certain conservative non-progressive societies the fact that women are lesser of beings
than their husbands still holds true.

One of the most popular argument for not criminalizing marital rape is the “implied
consent doctrine”. In the case of a married couple, it is presumed, that there is a consent
for sexual intimacy. However, such a line of reasoning is not only absurd but also lacks
2
Joseph Shine v Union of India, 2018 SCC Online SC 1676
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rationale. Presumption of consent only on the basis of existing spousal relationship

between the accused and the victim is preposterous. For instance, if a stranger attempts
to have sexual intercourse with a married woman and succeeds in doing so, then he shall
be convicted under Section 375, Indian Penal Code. But if the same is done by the
woman’s husband, he shall not be held liable. Granting immunity to an individual only
on the basis of him having a special kind of relationship with the victim indicates an
orthodox mentality and lack of reasoning.

Another contention made by persons advocating the status quo is that it would destroy
the sanctity of marriage and thereby undermine its institutional status. The idea that
marriage is considered sacrosanct in the Indian society and that any such law shall
undermine this status and would tarnish the identity of faith in which the institution of
marriage is built.

The next justification advanced was the non-interference by the courts of law into the
private realm of individuals. There is reluctance on the part of the judiciary to intervene
in the private matters of a husband and wife.

The additional arguments that are advanced is the availability of alternative remedies.
This idea is interwoven with the typical methodical mindset justifying the existence of
other remedies such as cruelty to women3 as an adequate measure to the wrong to which
women have been subjected. The legislators at the highest level of governance in the
country believe it is enough to put such a grave and inhuman act under the purview of a
common not to mention a very wide provision. They do not attach the necessary
significance that an act of such a gravity should be given.

The last argument advanced is the “implied consent” doctrine. This doctrine
presupposes the existence of consent by virtue of the status accorded due to marriage.

3
Section 498A, IPC
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The fact that a person is agreeing to be married is considered to be a valid consent to

have sexual relations.

FALLACY OF THE REASONS

The reasons aforementioned seem to have some inherent fallacy and are at the base
erroneous. This shall be discussed here onward.

Despite the fact that women have, on pen and paper, been given equal status assuming
that they are on an equal footing to that of the other superior gender i.e. men is super
fallacious. In this regard a problem of a completely different dimension arises. Here
married women are given a position inferior to that of unmarried women. In that the
indignation of a woman unmarried has the right to proceed under Section 375 of the IPC
4
but a married woman cannot resort to the same procedure. Article 14 of the Indian
Constitution ensures “equality before law and equal protection of law”. And there shall
be a deviation to this if and only if there is a special class that needs special attention
and protection. But this class shall be based on “intelligible differentia” which connotes
that the classification and the chiseling out of a particular class shall be based on
reasonable and prudent grounds. Any haphazard classification shall not adhere to the
constitutional principles. Thus treating married women differently only because of their
relationship with their partners is not a valid ground of classification. Thus this goes
directly against Article 14 and thus is violating in nature.

The implied consent doctrine was given by lawyers and law makers in the ancient era. It
has become redundant in the contemporary times. It is indeed a sorry affair that there
has been no attempt at amending this law which does greater harm than it benefits. The

4
Defines “rape”
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only goal that this exception fulfills is giving a free pass to the offenders committing
heinous crimes under the garb of marriage.

Another erroneous judgement by the courts of not interfering in the private matters of
couple is grossly inaccurate. It is indeed true that unnecessary interference by the courts
is not desirable but the fact that the courts refuse to interfere in situations that demand
their utmost attention is inappropriate. When a woman is forced into sex against her
whim her, body is violated. This connotes the infringement of Article 21 of the
Constitution which guarantees an individual “Right to Life and Personal Liberty”. This
right has been given the widest possible ambit so as to ensure that the word “life” as
mentioned in the article does not mean a mere animal existence rather a life where one
has the basic necessities in addition to what is required to fulfill his developemental
goals and help him in leading a dignified life. The apex court in one of the landmark
judgements5 recognized the “right to privacy” as a direct extension of Article 21. Thus
when a woman is raped by her own husband, apart from the mental trauma that she
undergoes her basic right to life has been infringed in addition to her right to bodily
privacy. Thus clearly this exception under section 375 exonerating a husband of raping
his wife attacks the fundamentals of the Constitution.

The argument that there are alternative remedies available is egregious on the lines that
they do not adequately address the problem at hand. Cruelty to women is wrong but rape
is something that goes against the basic morality of the society at large.

In addition to the contentions made above it also denies a woman of legal redress that
should otherwise have been available to her. These are some good enough reasons to
criminalize marital rape and grant women their rights that they have long been deprived
off and put the perpetrators behind the bars for the act that they have committed.

5
Justice K Puttuswamy v Union of India
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NEED FOR CRIMINALISATION OF MARITAL RAPE

It is high time marital rape is criminalized. It is true that mankind has made stellar
progress in the past centuries. But the subjugation hidden within the fabric of patriarchy
is still prevalent in almost all major societies. It is difficult to establish marital rape is all
the more reason why it should be criminalized. The courts must take into cognizance the
gravity of the offence and the trauma that a woman undergoes when she is forced into
sexual intercourse by her own spouse. The fact that there are other remedies available
does not invalidate this offence. In fact it is an aggravated form of cruelty that unleashes
the devilish ideas and manifests itself through rapes.

Though this happens behind closed doors, nonetheless the courts should not discard the
crime completely. If marital rape is not criminalized, the domestic violence that is
already on rise shall take the form of unwanted physical contact and sexual intercourse
and would further put women on the receiving end. The courts should prevent this
invasion of spatial, and bodily privacy of women by their spouses.

REFORMS PROPOSED

The arguments above stated have undisputably refuted the contention that women are at
equal footing especially the married women and they can be done no wrong by their
spouse. However, it is important to not only identify the lacunae in the system but to
suggest measures to correct these and establish a system that not only protects women
but respects them as equal beings, if not superior.

The major advancements that can be made towards ensuring this equality of status is by
the deletion of exception 2 of section 375 of the IPC and by drafting a legal framework
96 Jus Carta Edition 3 ISBN 978-81-951020-1-3

to deal with marital rape cases. This framework should focus on uplifting women by
giving them the proper counsel, should negate the idea that marriage is ground for
exoneration from any liability, and to do away with the “implied consent” doctrine
which is one of the deciding factors in such cases. This framework shall contain the
definition of marital rape and elaborate details with regard to what shall constitute as
marital rape. A little change on the procedural front shall also aid in improving the
plight of such women. For example, reversing the burden of proof and putting the onus
on the husband to disprove that he not committed the rape rather than for the woman to
prove that her body had been violated. This framework should also have in place a
strong mechanism of punishment for the wrong-doers.

CONCLUSION

It is of utmost significance that our lawmakers chose equality over patriarchy and break
through the structural forces that establish such conditions of inequality and shred every
bit of societal behavior that treats women as inferior. India as a progressive country
should not create an environment that is conducive to the breeding of discrimination and
injustice. The very promising constitution that our founding fathers have left behind
should not be wronged come whatever be the situation. The onus lies of the leaders of
the nation to help it reach the same stature that the founding fathers envisaged it to. And
denigrating women was not one of them.

The debate of marital rape is crucial in establishing substantive equality for married
women who are otherwise relegated in public and legal discourse to the confines of their
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home. 6 Therefore this debate should form a part of the of the realm of public discussion
and the reforms should be implemented as early as possible.

6
Criminalisation of Marital Rape in India, Rao. Raveena, Soni. Pradumnya, NUJS Law Reviw, Vol II
98 Jus Carta Edition 3 ISBN 978-81-951020-1-3

RAPE MYTHS AND STEREOTYPES: MARRIED BLOT UPON JUSTICE FOR RAPE VICTIMS

- VEDANT SAXENA

ABSTRACT

India has lately witnessed a number of legislative reforms concerning rape and other
sexual crimes against women. However, rape myths and stereotypes continue to plague
the Indian judiciary in reaching their conclusions. Rape stereotypes are “prejudicial,
stereotyped, or false beliefs about rape, rape victims and rapists” 1. This paper focuses on
these very stereotypical visions of raped women, and determines how such notions
affect the smooth functioning of justice. The author discusses certain trends observed in
the Supreme Court judgements over the years, and explains how the Court has routinely
focused upon injuries on the body of the woman, vaginal injuries, and neighbors hearing
the women’s cries for help, in deciding cases.

INTRODUCTION

The role of a judge is extremely important in rape trials. Since rape is not a mere
physical assault, judges not just have to focus on punishing the offender, but rather look
into the interests of the victim and others alike. Conservative and sexist attitudes could
not only lead to the denial of justice, but could also be employed as precedents leading
to further injustice. India may have come a long way since its independence from
colonial domination, but it's judiciary still remains a male-dominated hub, with many of
its members possessing chauvinistic ideals. Past sexual history and a lack of resistance
by the woman have routinely been focused upon in reaching conclusions. Moreover,
1
Martha R. Burt, Cultural Myths and Supports for Rape 217, 218 (Urban Institute 1980).
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even in cases which went in favour of the victim, certain stereotypical remarks passed
by the judges went on to be employed against rape victims in future trials. It is pitiful to
know that at the dawn of an era of equity and female empowerment, the apex court of
our country still lingers behind.

Rape stereotypes and myths are not just restricted to India, but have been documented
across the globe. Zsuzsanna Adler, after conducting an in-depth analysis of rape cases at
the Old Bailey Courts in London, reached a conclusion that in order to be categorized as
a typical “rape victim”, i.e., a victim who is bound to get justice, certain prerequisites
must have to be satisfied- the victim must have resisted the assault with utmost strength
and thereby incurred injuries, must have been raped by a stranger, must have been
sexually inexperienced, and must also have led a “respectable lifestyle”. 2 With regards
to the position in India, Ratna Kapoor has observed that a typical rape victim is
“honorable, monogamous, pure, chaste, and confined to the domestic sphere”. The most
likely women to fit into this category are orthodox Hindus, loyal wives, or virgin
daughters.3 In comparison to others, such women are way more likely to secure justice.

ANALYSIS OF LEGAL FRAMEWORK

Judgements and remarks made by the Supreme Court continued to be ridden with
sexism, misogyny and conservatism, until the passing of the Criminal Law
(Amendment) Act, 19834. The Act was an outcome of the infamous Mathura rape case,
wherein the Supreme Court’s verdict had led to large scale public outcry and protests.
The court stated that since the victim had been used to sex, and there were no injury

2
Zsuzsanna Adler, Rape on Trial 102 (Routledge & Kegan Paul Publishers 1987).
3
Ratna Kapur, Erotic Justice: Law and the new politics of Post colonialism 33 (Routledge-Cavendish
Publishers 2005).
4
Criminal Law (Amendment) Act, 1983, No. 10, Acts of Parliament, 1983 (India).
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marks on her body, it could be the case that the victim herself incited the police officers.
Thereby, the accused police officers were acquitted. The new Act brought major
amendments to the substantial and procedural aspects of rape. For instance, it added
Section 114A into the Indian Evidence Act 5. This Section says that in certain cases
enlisted under Section 376(2) of the IPC6, if the victim testifies that she did not consent,
it shall be presumed that she had not consented to the sexual act. Therefore, this acted as
an exception to the general rule: "innocent until proven guilty". In 2003, the parliament
repealed Section 155A of the Indian Evidence Act. This Section permitted the defendant
to furnish evidence on the victim's past sexual conduct. This had led to the development
of a stereotypical vision of a rape victim, and consequently the denial of relief to a
number of rape victims over the years. In 2013, the 2-finger test, which had been
routinely exercised to determine the virginity of the victim, was finally banned.
According to the Supreme Court, the test not just violated the victim's privacy, but was
also unscientific and allowed the judges to make remarks on the victim's past sexual
history.7 While past sexual conduct of the victim has been deemed irrelevant, the
medical examination report gives the defendants a chance to raise unnecessary points
under the garb of "expert testimony". The very nature of the medical tests used in India
introduces gender stereotypes around women’s honor and chastity into the trial as
“objective” scientific and expert evidence.

After the occurrence of the horrific Nirbhaya rape case8, which involved the gang rape
of young medical student aboard a bus in Delhi, the Parliament was compelled to focus
primarily on the safety of women. This led to the passing of the Criminal Law

5
Indian Evidence Act, 1872, No. 1, Acts of The Governor-General in Council, 1872 (India).
6
Indian Penal Code, 1860, No. 45, Acts of Imperial Legislative Council, 1860 (India).
7
Lilu @ Rajesh & Anr. v. State of Haryana, (2013) 14 SCC 643.
8
Mukesh & Anr vs State For Nct Of Delhi & Ors, (2017) 6 SCC 1.
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(Amendment) Act, 20139, which widened the ambit of rape and increased the severity of
the punishment to be awarded to the offender. For instance, rape is now considered to be
any form of penetration in any part of the body. In the event of rape causing death, or
leaving the victim in a vegetative state, the offenders could be awarded death penalty. 10
However, this Act was heavily criticized for not materializing some important
recommendations made by the Justice Verma committee. For instance, it does not
criminalize marital rape. It is still mandatory to obtain a sanction in order to prosecute
an armed force personnel accused of rape. 11

Following the events of the infamous 2018 Kathua case12, which involved the
abduction, gangrape, and murder of a minor girl of Jammu and Kashmir, the Parliament
passed the Criminal Law (Amendment) Act, 201813. This Act increased the stringency
of the rape laws. For instance, in the event of the victim being under 16 years of age, the
minimum punishment to be awarded is 20 years, up from 10 years previously. Gangrape
of a girl less than 12 years of age would invite a maximum punishment of death penalty.

ATTITUDE OF THE JUDICIARY

India witnessed a conservative and narrow-minded Supreme Court in the post-

independence era. Even though the apex court had recognized the need for convicting
the accused based solely on the victim’s testimony, it did incorporate methods to
determine the truth in the victim’s statement. This is the very reason why Section 155(4)
of the Indian Evidence Act remained in force for more than 50 years in independent
India. This Section permitted the accused to produce evidence showcasing the victim to

9
Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013 (India).
10
Indian Penal Code, 1860, § 376A, No. 45, Acts of Imperial Legislative Council, 1860 (India).
11
Armed Forces (Special Powers) Act, No. 28, Acts of Parliament, 1958 (India).
12
Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SCC OnLine SC 494.
13
Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliament, 2018 (India).
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be of “immoral character”. This evidence could involve past sexual history, lack of
resistance, etc. Based on such evidence, the Court would often declare the victim’s
testimony to be false.

Up until the case of Tukaram v. State of Maharashtra 14, most judgements of the
Supreme Court, which were clear outcomes of stereotyped notions of rape and consent,
went in favor of the accused. A girl was expected to defend her chastity at all times.
Once lost, she was no longer considered trustworthy. The slightest lack of resistance
against the accused was used as evidence for proving consent. Consent was
automatically proven if the accused was the victim’s husband. Therefore, the victim
usually had to produce an unreasonably high degree of evidence to tilt the case in her
favor.

Although the Supreme Court has passed a number of progressive judgements over the
years, it still seems to be riddled with the ‘honor and chastity’ belief. It is still believed
that a woman would employ the “greatest amount of resistance” in defending her honor,
which is lost once the victim loses her virginity. Analyzing various case laws, there were
certain trends observed in the judgements of the Supreme Court, which are listed as
follows:

Rigid image of a stereotypical rape victim

On account of their personal beliefs and notions, judges have often ended up focusing
on illogical facts in deciding cases. This led to the creation of a stereotype of a rape
victim, which has been employed by the court in deciding most cases. Most rape
victims, who failed to align themselves with this stereotype, ended up losing their cases.
One of the most striking features of this stereotype is that the victim must necessarily

14
Tuka Ram And Anr vs State Of Maharashtra, 1979 AIR 185.
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have undergone agony and emotional trauma, on account of the act of rape. In the case
of Kamalanantha v. State of Tamil Nadu15, the judge stated that on account of the fact
that the victim had broken down several times, the victim’s testimony inspired his
confidence.

Therefore, there are certain fixed norms which the Supreme Court expects the victim to
adhere to, both during the act of rape and while testifying in court. This made it
extremely tough and distressing for the victim, for she not just had to prove that the
accused had committed the act, but also had to satisfy certain prerequisites 16 framed on
account of the conservative and misogynistic notions of judges. They fail to
acknowledge the fact that no 2 persons have the same psyche, and different people could
feel equally distressed in different ways. Such notions were clearly reverberated in Raja
v. State of Karnataka17. The judges stated that the modus operandi of the victim in the
aftermath of the alleged rape was fairly unusual. For instance, instead of leaving for her
home in a devastated, humiliated and distressed state, she stayed back at the place of the
incident and inquired about the offenders from a few people she claimed to have met.
Further, she also returned back to the place of occurrence to look at the discarded litter,
and confidently walked alone past midnight. Based on these events, the judges stated
that such conduct had likely been bolstered by "a feeling of frustration stoked by an
intense feeling of deprivation of something expected, desired or promised". The
defendants were thereby absolved of all charges.

Therefore, even when judges feel the need to empower women by being sensitive to
their needs, their prejudiced notions would come into the picture. For instance, in

15
Kamalanantha And Ors vs State Of Tamil Nadu, (2005) 5 SCC 194.
16
Rayburn Corey, To Catch A Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials
437, 460 (Colum. K. Gender and L. 2006).
17
Raja & Ors v. State of Karnataka, (2016) 10 SCC 506.
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Bharwada v. State of Gujarat18, while the judges felt that they were delivering an
unbiased and victim-friendly judgement, they were actually framing a stereotype of a
rape victim which would go on to be adopted by many judges henceforth. While
delivering the judgement, they stated that it is seldom the case when a girl lies about
being raped, for her own reputation lies at stake. In the Indian society, honor and
reputation are highly valued, and if such news were to be circulated, not just would the
victim’s social stature diminish, but also her future prospects of getting married.
Therefore, based on such beliefs, they concluded that it is highly improbable that a girl
lies about being raped. The judgement may have gone in favor of the victim, but it gave
other judges a ground to distinguish between a virgin and a sexually active woman.
While it is readily accepted that the virgin did not consent to the sexual act, there are
doubts cast over the accusations made by a woman with past sexual history.

Even in Om Prakash v. State of Uttar Pradesh19, the judges held that it is highly
unlikely that a girl lies about being raped, for her family's social stature hangs in the
balance. They held that rape is not merely a physical assault on the victim, but an entire
degradation of the victim's name and reputation.

The amount of resistance put up by the victim is another important organ of the
stereotyped vision of a rape victim. In Pratap Mishra v. State of Orissa20, the accusation
made by a woman against three N.C.C students was turned down by the judges. They
based their judgement on the grounds that there were no marks of injury on the
accused’s body. They stated that since there were no bruise marks both on the victim’s
body and the accused’s body, it could be presumed that the victim had consented to the
sexual act, which was a peaceful affair between the two. Therefore, this stereotyped

18
Bharwada Bhoginbhai Hirjibhai v. State Of Gujarat, 1983 AIR 753.
19
Om Prakash vs State Of U. P., AIR 1960 SC 409.
20
Pratap Misra And Ors. vs State Of Orissa, AIR 1977 SC 1307.
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vision of a rape victim misled the judges into confusing passive resistance with
consent.21

Deep rooted sexist

Most Supreme Court judgements involving rape reverberate the sexist notions of judges.
Such notions reflect the pre-colonial era belief that women were merely commodities of
their husbands. For instance, in the case of Jagannivasan v. State of Kerala22, the 2-
judge bench comprising Justice MM Punchhi and Justice K J Reddy stated that since the
accused, a bachelor, had mastered a better income than most people working in his
home state, he was naturally a man whom girls would want to associate themselves
with. Bolstered by such baseless remarks, the bench held that since it could be presumed
that the victim had consented to the sexual act, the accused was not guilty.

In Sudhanshu Sekhar v. State of Orissa23, the judges stated that although past sexual
conduct is no longer relevant in determining consent, it is still important to note that the
victim seemed to have lied about this fact. While she claimed to be a virgin, medical
examination proved that she was habituated to sex. According to them, this cast a
serious doubt over the victim’s honesty in her testimony. They also stated that although
there did not seem to be any apparent reason for the victim to lie about the incident, she
may have changed her mind on realizing that others it might have come to the
knowledge of others.

In State of Maharashtra v. Madhukar Mardikar24, the Supreme Court, while delivering

its judgement, recalled the statements made by the High Court against the victim. The
High Court had stated that since the victim had been a sexually active woman, and did
21
Pratiksha Baxi, Public Secrets of Law: Rape Trials in India 14 (Oxford University Press 2014).
22
Jagannivasan vs State Of Kerala, 1995 CriLJ 3229.
23
Sudhansu Sekhar Sahoo v. State of Orissa, (2002) 10 SCC 743.
24
State of Maharashtra v. Madhukar Mardikar, (1991) AIR 1991 SC 207.
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not find it inappropriate in opening up about her past conduct, it would be highly risky
to convict the accused based on such uncorroborated evidence. The Supreme Court, in
turn, stated that although the victim was of easy virtue, she still has authority over her
body and nobody is entitled to violate her privacy without her consent. Although the
judges decided in favor of the victim, their sexist notions were evident in certain
remarks.

Tendency to undermine the gravity of the incident

In many cases, judges seem to overlook the severity of the trauma undergone by the
victim. In Baldev Singh v. State of Punjab25, the judges, relying on Section 376(2)26,
stated that since the parties had decided to end the dispute by entering into a
compromise, the accused could be acquitted. Through this statement, the judges equated
the term "dispute" with the incomprehensible distress undergone by a woman on being
raped. Such remarks help undermine the seriousness of the offence, and could easily
prevent the victim from getting the justice she deserves.

In the previously discussed case of Bharwada v. State of Gujarat, the court reduced the
term of punishment from 24 years rigorous imprisonment to an already served 15
months rigorous punishment. The judges based their decision on the fact that on account
of the incident, the accused had lost his job, faced an immense loss of reputation, and
was left in no condition to get his daughter married off. Such remarks easily undermine
the gravity of the incident, especially in this case, where the accused had been charged
of raping minor girls not more than 10-12 years old.

25
Baldev Singh v. State of Punjab (2011) 13 SCC 705.
26
Indian Penal Code, 1860, § 376(2), No. 45, Acts of Imperial Legislative Council, 1860 (India).
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Sensitive comments, though few and far apart

In State of Uttar Pradesh v. Pappu27, the judges stated that past conduct of the victim
was irrelevant in determining consent. Even if it were to be shown that the victim was
habituated to sex, such evidence would not act as proof that the victim had consented to
the sexual act. A woman, just like any human being, exercises complete dominion over
her body, and therefore, even if she is of easy virtue, no person is entitled to invade her
privacy without her consent. They also stated that the crime of rape is way more heinous
than a normal physical assault, since the former involves injury only to the body, while
the latter involves injury to the victim’s psyche as well.

In the case of Madan Kakkad v. Naval Dubey28, the court emphasized on the ever-
increasing crimes against children. The judges stated that although not every pedophilic
crime comes in the limelight, there are still thousands of deranged people who commit
unthinkable acts on innocent children. This is due to the fact that children are mostly
ignorant of rape, and therefore, they do not offer much resistance for they do not
understand the gravity of the act. This view again dented the stereotypical notions of
rape victims which equate lack of resistance with consent.

In Puran Chand v. State of Himachal Pradesh 29, the judges stated that it would be
impossible to ignore the severity of trauma and distress undergone by the victim,
particularly during the first few days when she wasn't even able to share her story with
somebody. They stated that if the victim's testimony were to be doubted, it would not
only be unjust to the victim, but the efforts of the wise legislators in framing and
incorporating Section 114A into the Indian Evidence Act would also be wasted.
Therefore, there must be utmost efforts made in brining justice to the rape victim.

27
Uttar Pradesh v. Pappu, (2005) 3 SCC 594.
28
Madan Gopal Kakkad vs Naval Dubey And Anr, 1992 SCR (2) 921.
29
Puran Chand v. State of HP, (2014) 5 SCC 689.
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CONCLUSION

The aim of this paper was to focus on the injustice caused to rape victims as a result of
the conservative and sexist notions of the Supreme Court. It not just focuses on the
instances when the judgement went against the victim, but general statements made by
the apex court that highlight the conservative notions of the judges. Additionally, it also
highlights the stereotypical notions of rape victims which came to be established over
the years. Although Section 114A of the Indian Evidence Act, which was incorporated
by the Criminal Law (Amendment) Act, 1983, did act as a relief against such baseless
notions, the issues of sexism and misogyny continue to linger on in the Court's remarks.
On account of a number of judgements, a stereotypical vision of a rape victim came to
be established, which unfortunately still haunts our country. Utmost resistance, virginity,
marital status, etc. are all features of the stereotypical notion. Additionally, the judges
displayed a tendency to use improper and verbose language, made remarks which
ignored the gravity of the trauma experienced by the victim. While on a few occasions
some learned judges made victim-friendly statements empowering women, such
comments were few and far apart.

Even in the cases when the victim was given justice, the judges made certain remarks
highlighting their sexist notions, which went on to be used against the victim in cases
henceforth.

In conclusion, the way society perceives rape is diametrically opposite to the way it
perceives the rape victim. 30 Even in the present day, many innocent girls are seen
differently after being raped. Such conservative notions are often reiterated by the
judges. It is often considered that the woman herself incited the offenders. On account of

30
Lorenne Clark & Debra Lewis, Rape - The Price Of Coercive Sexuality 24 (Women’s Press 1977).
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the conservative notions still existing in various parts of the country, rape victims often
end up paying a double price-apart from undergoing severe physical and emotional
trauma, they also have to live through the distress of defending the legitimacy of their
suffering. 31 In the midst of heavy patriarchy, raped women are often subject to sexist
and misogynistic notions, which start right from the way the police treat them, and
continue up to the male-dominated legal system. More often than not, such
circumstances bolster the acquittal of de-facto guilty rapists.32

It is not the girl who needs to be questioned. It is the judge who needs to be. As long as
such conservative and sexist notions continue to plague the Indian judiciary, no matter
how stringent the laws may be, women are bound to end up as scapegoats.

31
Majority Staff of the Senate Judiciary Committee, The Response to Rape: Detours on the Road to Equal
Justice (1993).
32
Robin GD. Forcible Rape: Institutionalized Sexism in the Criminal Justice System, Crime &
Delinquency, 136-153 (1977).
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REFORMATIVE THEORY OF PUNISHMENT: ANALYSING THE STATUS IN INDIA

- KIRTI LAL

ABSTRACT

The object of punishment has been considerably under the process of changes from the
last centuries because of welfare state concept. Reformist are of the view that a criminal
is not born but made by the environment of the society. A criminal act is against the
society it establishes a sense of threat and fear among the members. It is the
responsibility of the society to reform him by adopting certain suitable methods.
Reformative theory helps an individual to bring a change and get them into the
mainstream society. Reformative approach on simple idea that, ‘we must cure our
criminal, not kill them’. Reformative approach to punishment as a measure to reclaim
the offender emphasis rehabilitation so that the offender can transform into a good
citizen and get back to the society.

The present paper will be dealing on the concept of punishment, different theories of
punishment, comparing and contrasting each one of them, existing laws supporting the
reformative theory in India, jurisprudential aspect of penology, reformative technique of
treatment and rehabilitation of offenders, the modern reformative techniques of
punishment are essentially devised for the treatment of offenders according to their
psychological traits this technique includes Probation, parole, admonition and pardon.
Reformative theory applying in juvenile justice and the reforms in prison and inmates
and the laws supporting reformative theory in India.
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INTRODUCTION

Punishment is a means of social control. The philosophy behind the concept of

punishment is not only to provide justice to the aggrieved but also to maintain and
establish a peaceful society. It is inevitable to control some violation and the society is
never free from the problem of crime. Crime in society is universal and is inseparable.
But to keep a check on it, to control its frequent occurrence punishment needs to be
prescribed. Lack of punishment creates a society which is incapable of maintaining civil
order and citizen’s safety. It is the duty of the state to provide a peaceful environment to
its people and avoid any kind of chaos and havoc. The practice of punishment is
necessary for the maintenance of social cohesion. With Change in the social structure,
the society has witnessed various theory of punishment. In the words of Sir John
Salmond, ‘The end of criminal justice are four in number and in respect to the purpose
served by them punishment can be divided as-

1. Deterrent theory of punishment

2. Retributive theory of punishment
3. Preventive theory of punishment
4. Reformative theory of punishment.

Deterrent Theory of Punishment

One of the primitive methods of punishment. This theory believes in the fact that if
severe punishment were inflicted on the offender would deter him from repeating that
crime. Those who commit a crime, it is assumed that they derive a mental satisfaction or
a feeling of enjoyment in the act. To neutralize this inclination of the mind, punishment
inflicts equal quantum of suffering on the offender so that it is no longer attractive for
him to carry out such criminal act.
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Retributive Theory of Punishment

The most stringent and harsh of all the theories. Retributive theory believes to end the
crime in itself. It underlines the idea of vengeance and revenge rather than that of social
welfare and security. Vengeance is not expected in a civilized society, this theory has
been severely criticized by modern day penologists and is redundant in the present
punishment.

Preventive Theory of Punishment

Unlike the former theories, this theory aims to prevent the crime rather than avenging it.
Looking at punishment from a more humane perspective. The theory gets its importance
from the notion that society must be protected from criminals. 1

Reformative Theory of Punishment

The most recent and the most humane of all. This theory is based on the principle of
reforming the legal offender through individual treatment. This theory aims at
rehabilitating the offender to the norms of the society. This theory condemns all kinds of
corporal punishment. It is based on the humanistic principle that even if an offender
commits a crime, he does not cease to be human being.

Punishments such as the retributive and deterrence though the use of fear as an
instrument to curb the occurrence of crime helps in controlling the criminals up to a
certain extent. As these employ the idea of revenge and vengeance these are much more
harsher than others. Preventive and reformative theory talks more of a humanitarian
modes of punishment. In the present context the trend is towards the treatment of the
offenders. Criminologists all over the world profess that criminals are as good or rather
as bad as patients and they need to be treated, not punished.

1
Shaswat Dutta, Theories Of Punishment http://www.legalserviceindia.com/articles/pun_theo.htm.
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REFORMATIVE THEORY – NATURE & SCOPE

Since the time the concept of welfare state came into existence, there has been
considerable change in the object of punishment. The brutality of punishment has
undergone a change by giving a human touch to the criminal law. Even if the human
commits a crime be it a heinous one, he does not cease to be a human being. The
offender may have committed a crime under unavoidable circumstances which might
never occur again. This should be taken into due consideration and reform in
punishment should be brought. Reformative theory gives a chance to the offender to
improve himself, to give them a proper guidance and provide a proper room to make
them aware about the nature of the crime committed by them.

It is evidently seen that most of the crime takes place due to the social and psychological
thought and influence. Keeping these factors in mind, reformative should be given an
upper hand and preference over other theories of punishment. There are evidences and
data which shows that how unskilled, uneducated criminals have transformed and
developed certain skills in prison which have transformed them into highly useful and a
better person from what they were before. The main objective of this theory is to bring
back the moral reform of the offender. It is very important to study the character, age,
education and the environment to which the offender belongs. These factors are to be
considered as it is very important to understand the psychology of the offender. Under
what circumstance was he/she compelled to commit the offence.

Reformative theory is also known as rehabilitation theory. According to which the

purpose of punishment is to bring reform and positive changes in the offender as a
persona and with his changes, bring them back into the mainstream society. It tries to
bring about a fundamental change in an offender and their behaviour. This can be done
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be educating them, teaching them moral ethic and values, providing them better
counselling and psychological treatment. This process of change is adopted to prevent
the likelihood of future criminality. Rehabilitation theory regards crime as the symptom
of the social disease and sees the aim of rehabilitation as curing that disease. 2

EXISTING LAWS SUPPORTING REFORMATIVE THEORY IN INDIA

The legislative provisions which deal with reformative concept are as follows:

⮚ Reformative schools Act, 1897

⮚ Juvenile Justice act, 2000 (amended)
⮚ Probation offender Act, 1958
⮚ Parole Rules3

Reformative schools Act, 1897

It is one the earliest outcome of the reformative theory of punishment. The kind of
approach reformative school act provides is a curative one. This act deals with the
offences and act of children. The primary focus of this act is to prevent children from
sentence which could ignite a flare of fear in the child offender and make them a
hardened or habitual offender. This is the reason why this is approach is more of a
curative one and imposing any harsher punishment. The first youth offenders are sent to
reformative school. This reformative school is run by the government and all the
facilities of food, clothing and education is provided under the governmental
supervision.

2
Gopal Singh, Reformative Theory and Contemporary Pearl Provision (November 10, 2016)
http://www.legalserviceindia.com/articles/Reformatory.htm.
3
Tanu Priya, Reformative theory of Punishment ( September 2, 2014)
https://www.lawctopus.com/academike/reformative-theory-of-punishment/
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Juvenile Justice (Care and Protection of Children) Act, 2000

A ‘Juvenile’ or ‘child’ is a person who has not complete the age of 18 years. The main
concern of the Juvenile Justice Act, 2000 was the rehabilitation of the minor. It did not
support the adversarial procedure to deal with minor offender. The Juvenile Justice Act
held the non- applicability of any other act for the time being in force. Regardless of the
nature of the offence committed, juvenile justice should prevail in juvenile cases. This
notion was held in Raj Singh Vs State Of Haryana 4.

The age for juvenile was raised and bought to uniformity which is 18 years for both boy
and girl in accordance with the UN CRC. Juvenile Justice Act deals separately with two
categories of children- Child who are in need of care and protection and Juvenile in
conflict with law. The first one includes those categories of child who are found in
difficult circumstances and their life is in danger of survival and growth. Some such
situations are, children found begging on the streets, children rescued from the brothel.
There has to be a competent authority to look after them. That competent authority is the
child welfare committee. The second category deals with the situation where the child
has alleged to have committed an offence. These children are not to be tried in a regular
court but by the juvenile justice board. Juvenile Justice board comprised up of
Metropolitan Magistrate or a Judicial Magistrate of 1 st Class, two social workers, at least
one of whom should be a woman. These three people form a bench and act as a single
and functional unit while dealing with juvenile cases. Juvenile Justice Act, 2000 prohibit
the offender encounter with the media and the media houses and the magazines are not
permitted to release the information about juvenile. There is punishment of 3 years of
imprisonment if they do any such act which is prohibited in relation to juvenile.

4
CRIMINAL APPEAL NOS. 701-702 /2015
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The Honourable Supreme Court while hearing a case related to juvenile crime, observe
that the present act need to be reviewed and changes are to be brought. This was
initiated by seeing and examining the increasing heinous offences by the juvenile. It
emphasis that the juvenile need to know the nature of the offence and actions against
such offence should be taken as per the severity of the crime. For crime like rape and
murder it is hard to conceive that the juvenile is not aware of the consequences.

Juvenile Justice (Care and Protection of Children) Act, 2015

A bill was proposed by the Ministry of women and child development in 2014. The bill
was proposed in the backdrop of Delhi gang rape case in 2012. Among the many
offenders involved in 2012 gang rape, one was a minor of 17 years. The Ministry of
women and child development held that the bill is proposed keeping in view the increase
in heinous offences committed by person aged between 16-18 years. Subsequently, the
Juvenile Justice Act, 2000 was amended in 2015 and a provision was laid down which
allowed children in conflict with law to be tried as an adult under certain circumstances.

Justice Verma Committee was constituted to recommend amendment to the Juvenile

Justice Act. This committee recommendation stated that it was not inclined to reduce the
age of Juvenile from 18-16 years. But for heinous offences a special category of 16-18
years could be consider and under some special circumstances they can be tried as
adults. Section 15 Of Juvenile Justice Act laid down certain criteria under which minor
can be treated and tried as an adult. The following are the criteria-

⮚ Mental and physical capacity of the alleged person.

⮚ Ability of the alleged person to understand consequences of the crime.
⮚ Circumstances in which the offence were committed.
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If the Juvenile Justice board finds that the child can tried as an adult, the case is again
transferred to a designated Children’s court. In the second stage the children court has to
decide whether the board decision is correct.

Probation of Offender Act, 1958

The criminal law in India in more into reforming offender rather than punishing them.
The Probation of offender Act has more of a reformative approach. Probation is a period
of time when a criminal must behave well and not commit any more crime in order to
avoid being sent to jail. Section 3 of Probation of offender Act lays down that when any
person is found guilty of having committed an offence punishable or any offence
punishable with imprisonment of not more than 2 years or with fine or both under the
IPC or any other law and no previous conviction is proved against him and the court by
which the person is found guilty is of the opinion that, having regard to the
circumstances of the case including the nature of the offence, and the character of the
offender, it is expedient so to do, then, notwithstanding anything contained in any other
law for the time being in force, the court may instead of sentencing him to any
punishment or releasing him on probation of good conduct under section 4 release him
after due admonition.

Admonition is a firm warning or reprimand a piece of advice that is also a warning to

someone about their behaviour. Basikesan Vs State of Orissa 5 in this case, a 20 year old
boy was charged under section 380 of the Indian penal code which is theft indwelling
houses. It was held that the youth did not commit the offence deliberately and appealed
to apply section 3 of the Probation of the offender act and the accused can be released
after admonition.

5
AIR 1967 Ori 4
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The aim of the Act is to bring a reform in the offender and show them the right path.
Along with the Juvenile Justice System, Probation has taken the human Interest. The
Act provide convenient and useful way to treat the offender and also to some extent
ensure that the crime should not be committed again. It has built a positive view towards
prisoners.

Parole

Parole is a temporary release of prisoner who agree to certain condition before the
completion of the maximum sentence period. It is a kind of reward granted to the
prisoner based on their good behaviour. At the starting time, parole was granted to the
offender to reduce overcrowding of prisoner. There was concept of ticket of leave. Later
on it was changed and it was granted as reward in lieu of good behaviour. The grant of
parole is a quasi- judicial function performed by the parole board. The Supreme Court
has ruled that a convict’s nature and not the nature of his crime was the determining
factor for grant of parole, which formed part of the reformative scheme to help convicts
maintain links with family and society. The famous case law related to parole is Manu
Sharma vs NCT of Delhi6 also known as Jessica Lal murder case, Manu Sharma was son
of influential politician got the parole on wrong basis later he was arrested by the Delhi
police. Sanjay Dutt case, he was released on parole several times in Bombay Blast case.

JUDICIAL REFORM AND INTERPRETATIONS

The Government of India in the year 1957, appointed the All India Jail Manual
Committee. In the words of Oscar Wilde- “It is not the prisoners that need reformation,
it is the prisons”. The committee was appointed to prepare a modern prison manual. The
committee laid down in its reports certain reforms which are latest methods relating to
6
Criminal Appeal No. 193 of 2006
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jail administration, remand homes, aftercares etc. Realizing the significance of Mahatma
Gandhi dictum that “Criminals should be treated as patients in hospitals and jails should
be hospital admitting such patients for treatment and cure”.

In Narotam Singh vs State of Punjab7 the Supreme Court said that reformative theory
should be the object of criminal law. The Reformative approach promotes rehabilitation
of the offender without affecting any community conscience.

So far the positive aspect of reformative are highlighted and projected, but there are
number of objections against the reformative theory. Reformative theory fails for the
habitual offenders. These offenders cannot be put in the right track even by the human
agencies. Any kind of rehabilitation, care homes would not work for them. They will
come out as the same person with the same kind of intention and no change in their
nature and behaviour.

In Dhanraj Saini and Anr. Vs State of Rajasthan8 a programme of reformative theory

was violated. The accused misused and violated his parole period. The court ordered
that in these cases of violation of judicial order, the state could re- arrest the accused and
require them to undergo the remaining part of their life- imprisonment.

These are the loopholes of the reformative theory which are exploited by the offenders.
Where the offenders are so stubborn and hardened criminal, the reformative approach
tends to fail there. It is not the theory is incapable of curing the offenders or is vague, it
is the nature of the offender. The nature which could not be changed even practicing
these rehabilitation, parole, probation etc.

7
(1974)4 SCC 505
8
2012(4) WLN 144
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CONCLUSION

The main purpose and objective of law is to maintain peace and stability in the society.
It aims to prevent chaos and conflicts in the society. Crime is an act which a reasonable
apprehension of fear in the mind of the people. People fear when they see any criminal
activity and criminals. But every crime comes with punishment. Punishment for the
wrongdoing of the offenders. These punishments are attributed to prevent any further
crime or criminal activity. One such form of punishment is the reformative theory of
punishment which is discussed in the paper.9 The approach of reformist is to rehabilitate
the offender. Rehabilitation seeks to bring about fundamental changes in the offender
and their behaviour. The offenders are provided with psychological treatment, therapy
sessions, counselling. The theory main aim is to transform the criminal minds of the
offenders. The Psychological aspect studies the nature, circumstances, environment in
which the crime was committed and tries to analyse it and bring out the solution for this.
This is the approach of reformative theory. This theory is more of curing the offender
with psychological and rehabilitation approach rather than using any physical violence.
A recent increased public awareness of alternatives to the classic prison system, Juvenile
Justice System, Jail reforms has created a favourable social climate for the growth of
reformative justice in India.

9
https://www.jstor.org/stable/2379535?seq=1#metadata_info_tab_contents
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REVIEW OF INTERNATIONAL ENVIRONMENTAL LAW DURING ARMED CONFLICT

- SAGNIK SENGUPTA

ABSTRACT

Despite the protection provided by several important legal means, the environment is
quietly affected by armed conflict around the world. The United Nations Environmental
Program (UNEP) has conducted more than 20 post-conflict assessments since 1999 with
the latest scientific advances in determining the environmental impact of war. UNEP has
found that armed conflict is causing serious damage to the environment and
communities that depend on natural resources from Kosovo to Afghanistan, Sudan and
Gaza. The direct and indirect environmental damage, along with the collapse of the
institution, poses environmental risks that can threaten human health, livelihood and
safety and ultimately impede peace building after conflict.

The results of these assessments also show that the exploitation and illegal trade of
natural resources often encourages and prolongs armed conflict, especially in countries
where laws and institutions are weakened or collapsed. Since peacebuilding often
involves the allocation, access and ownership of natural resources, safety must be
strengthened during armed conflict. There can be no lasting peace if the natural
resources that support livelihoods are damaged, depleted and destroyed.

Current international environmental legislation contains many provisions governing the

use of natural resources and protecting the environment directly or indirectly in case of
armed conflict. However, in practice these provisions have not always been effectively
implemented or applied. Where the international community seeks to hold states and
individuals accountable for environmental damage resulting from armed conflict, the
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consequences are generally poor, with one notable exception being the liability of Iraq
for damage incurred during the 1990-1991 Gulf War. This paper focuses on the
international environmental legal framework that applies directly or indirectly to the
protection and preservation of the environment in case of armed conflict.

INTRODUCTION

International Environmental Law (IEL) covers several cases of environmental damage.

This refers to the responsibilities and liabilities possible during peacetime. The question
is whether these liability principles can be applied to similar damages resulting from
armed conflict. For example, if a power plant was destroyed by war or other military
operation, should an international agreement on the suspension of the system of offshore
oil liability due to subsequent oil spills be implemented? The Barcelona Convention for
the Protection of the Marine Environment and the Agreement on Regional Seas, such as
the Mediterranean Coast, will be implemented, and if so, how? In another example, will
the Trail Smelter principle apply when rebels blow up a pipeline that spills oil into a
river and then spreads to neighbouring countries? Does the country affected in this
scenario have a practical way to use the IEL against the forces of responsible internal
rebels? Likewise, the World Heritage Convention protects cultural and natural heritage,
but does it apply during war? Does this Convention forbid the burning of World
Heritage Sites with hostility? Or consider the forbidden deal of endangered species such
as ivory, which is said to have used rebels to finance the purchase of artillery and
supplies. The Convention on International Trade in Endangered Wild Animals and
Plants (CITES) prohibits unauthorized trade, but has not yet applied to rebels. Can it be
used or should it be used? And does the request depend on whether the rebels or
sovereign units were involved in illegal trade? The potential application of the IEL
during armed conflict is complicated by the fact that environmental laws are still
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evolving at the national and international level, and countries are in the process of
determining how to link them with the IHL (and other agencies). Instead of formal
measures such as international trade law, the recent change in the international approach
to the application of IELs in armed conflict has been largely driven by scientific
research and commentary on the issue, referring to changes in articles analysing this
topic. From the historical belief that laws for peacetime and martial law are mutually
exclusive and applicable to anyone, it has been widely accepted that this is not a strict
choice between the two legal systems, but rather that there are areas in which they
apply. Martial law and some peace laws overlap. Several international environmental
agreements, in particular, states that they remain relevant even during war. Therefore,
this paper provides an overview and analysis of the laws and opinions on the
applicability of the IELs during armed conflict. There are three main parts.

a) Multilateral Environmental Agreements and IEL Principles which analyses relevant

provisions of relevant international environmental law, including the Multilateral
Environmental Agreement (MEA) providing direct or indirect application or repeal
during armed conflict.

(b) General international environmental law and soft law documents which analyses
relevant provisions of custom international environmental law and important binding
documents such as Rio Declaration.

c) Comments on the applicability of the IEL in armed conflict which analyses a new
scientific comment seeking a solution to when and to what extent certain IEL provisions
will continue to apply at the start of military operations.
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MULTILATERAL ENVIRONMENTAL AGREEMENTS AND PRINCIPLES OF IEL

There are significant differences in how International Environmental Law (IEL) deals
with the applicability of armed conflict. Some MEAs determine the continuation of an
action directly or indirectly under hostility through imprisonment or direct explanation.
Other MEAs specifically state that when an armed conflict begins, it is automatically
stopped, terminated or applied. Others are silent about this. A few of the MEAs analysed
below clearly indicate that they ceased to operate during armed conflict. The remaining
is distributed evenly between having nothing mentioned and those that contain
languages that can directly or indirectly affect continuity and those that do not.
However, it is important to note that in most cases the application of these provisions
will depend largely on the method adopted to determine when the IEL remains active
during armed conflict.

International Convention for the Prevention of Pollution of the Sea by Oil

(OILPOL) (1954)

The International Convention for the Prevention of Pollution of the Sea by Oil
(OILPOL), signed in 1954, prohibits ships from dumping oil within 50 miles (50 km) of
shore. OILPOL deals directly with issues of applicability in armed conflict. Article XIX
says that in case of war or other hostilities, the governments of the Contracting States
who believes that they themselves will be affected, whether eminent or being neutral,
cease operations of all or part of this Convention with respect to all or part of its
territory.1 There are no disputes on this provision. So the standard terms seem to

1
OILPOL, Article XIX, 12 May 1954, 327 UNTS 3.
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continue to apply during armed conflict, even if the affected parties have to decide it in
certain circumstances.2

International Convention for the Prevention of Pollution from Ships (MARPOL)

(1973/1978)

The International Convention for the Prevention of Pollution from Ships signed in 1973
(MARPOL) and modified to its final form five years later. 3 MARPOL expands on oil
spills found in OILPOL to include other hazardous substances. The agreement aims to
eliminate all deliberate pollution and reduce unintended emissions of hazardous
substances.4 Regulations on oil, chemicals and other hazardous substances, wastewater,
debris, air pollutants are contained in a separate annexes, only the acceptance of the oil
pollution annex is required for ratification.

For the purpose of implementing the convention during war, MARPOL excludes only
state warships and aircraft in accordance with its sovereign disclaimer. Ships, aircrafts
or other vessels owned and operated by the government only working for non-
commercial government services. 5 This article also requires the parties to ensure that
such ships and aircraft fulfil their obligations in accordance with the agreement to the
greatest possible extent. This language has been practically adopted by UNCLOS.
Therefore, this convention is made for all ships except military vessels and aircraft
during armed conflicts.6

2
Vöneky (2000b); Tarasofsky (1993:61).
3
MARPOL, 2 November 1973, 1340 UNTS 184, as amended by the Protocol of 1978 Relating to the
International Convention for the Prevention of Pollution from Ships, 17 February 1978, 1340 UNTS 61.
4
Id., Preamble.
5
Id., Article 3(3).
6
Id., Article 3(3).
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Convention on Wetlands of International Importance especially as Waterfowl

Habitat (Ramsar Convention) (1971)

The Convention on Wetlands of International Importance especially as Waterfowl

Habitat was adopted in 1971.7 Often referred to as the "Ramsar Convention", the
Convention was amended by the Protocol in 1982 and many amendments were made in
1987. UNESCO serves as its depository. The Convention requires States parties to
include at least one wetland in the List of Wetlands of International Importance and then
promote the conservation of the wetlands inside their territory mentioned in the List. 8
The Ramsar Convention does not explicitly describe its application to during wars and
armed conflicts. From the language of the convention, it can be concluded that the
parties to the agreement are eligible due to the urgent national interest to remove or limit
the boundaries of wetlands already included in the List. 9 Urgent national interest
situations may include national security and armed conflict, but it specifies that the
Convention was drafted and is changing to a form intended to remain relevant for such a
period.10

Convention Concerning the Protection of the World Cultural and Natural Heritage
(World Heritage Convention) (1972)

Member States of UNESCO adopted the World Heritage Convention in 1972. Within
the framework of this Convention, States Parties recognize their responsibility to

7
Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971,
996
UNTS 245.
8
Id., Article 2.
9
Id., Article 3(1).
10
Id., Article 3. Article IV then requires that when urgent national interests cause a Party to make such a
deletion or restriction, they should attempt to compensate for that loss of wetlands. Id., Article 4.
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identify and protect certain human heritage sites for present and future generations.11
The Convention states that any sign or threat of armed conflict alone is sufficient to
include an endangered world heritage site. Since 2007, at-risk properties can benefit
from improved monitoring mechanisms if they are at risk of losing the value identified
on the World Heritage List.12 In particular, the introduction of the provisions related to
armed conflict shows that this Convention continues to be applied under such
situations.13

Convention on Long-Range Transboundary Air Pollution (LRTAP) (1979)

The Convention on Long-Range Transboundary Air Pollution (LRTAP) was designed to

reduce air pollution across borders when the source of pollution cannot be separated. 14
Therefore, the spectrum of pollutants covered by LRTAP is wider than that covered by
the Trail Smelter principle. 15 In a narrow sense, Trail Smelter's principles deal with
situations in which states behave in ways that harm their neighbours. LRTAP, on the
other hand, includes situations where it is not possible to determine the contribution of
individual countries and the scope of their responsibilities. 16 Despite more attention,
LRTAP's mission often consists of ambitious terms and relies on tactics such as
negotiation without imposing any responsibility. LRTAP's provisions are difficult to
comply with because there is no direct conviction and responsibility. 17 For example, the
state should "endeavour to limit and, as far as possible, gradually reduce and prevent air

11
Convention Concerning the Protection of the World Cultural and Natural Heritage Convention,
Preamble, 23
November 1972, 1037 UNTS 151.
12
Id., Article 11(4).
13
Decision of the World Heritage Committee 31COM 5.2 (New Zealand, 2007).
14
Convention on Long-Range Transboundary Air Pollution (1979), Article 1(b), 13 November 1979,
1302 UNTS 217.
15
Id., definition in its Part 5.2.ii.1.a.
16
Schmitt (1977:49-50).
17
LRTAP, supra note 153, Article 2.
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pollution." These descriptive standards make it difficult to determine national

responsibility in any given situation. This limitation is mainly due to the fact that
LRTAP is a framework convention.

Convention on Civil Liability for Damage Resulting from Activities Dangerous to

the Environment (1993)

This Convention expressly disclaims liability for damage caused by war, hostility, civil
war, rebellion or a unique, inevitable and irresistible natural phenomenon. 18

Convention on Third Party Liability in the Field of Nuclear Energy (1960)

This agreement waives the operator's liability for damages arising directly from armed
conflict or similar activities. 19 However, Austria and Germany made reservations to this
provision and have specifically stated their right to hold operators liable for these
damages.20

Vienna Convention on Civil Liability for Nuclear Damage (1963)

The Convention exempts any operator from liability for nuclear damage resulting from
armed conflict, hostilities, civil war or insurrection.21

18
Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment,
Article 8(a), 1993, 32 I.L.M. 1228.
19
Convention on Third Party Liability in the Field of Nuclear Energy, Article 9, 29 July 1960, amended
28
January 1964, 956 UNTS 264.
20
Id., Annex I, Paragraph 4.
21
Vienna Convention on Civil Liability for Nuclear Damage, Article IV(3)(a), 21 May 1963, 1063 UNTS
266.
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CUSTOMARY INTERNATIONAL ENVIRONMENTAL LAW AND SOFT LAW INSTRUMENTS

A much larger proportion of the IEL Principles and soft law documents mentioned in
this section discuss armed conflict more directly than the MEAs discussed above. In
fact, most of them contain principles directly related to the actions of the state during
armed conflict or the protection of the environment during armed conflict. However, this
framework is not legally binding, not even during periods of peace unless it reaches the
level of customary international law. While researchers continue to discuss the scope of
customary IELs, many argue that the precautionary principle, the principle of pollution
prevention and the right to a healthy environment either are or are emerging as
principles of customary international law. 22

Declaration of the UN Conference on the Human Environment (Stockholm

Declaration) (1972)

In 1972, the United Nations Conference on the Human Environment was held in
Stockholm, where 26 human and environmental principles were adopted.23 Two of these
principles can be applied to the question of whether the IEL applies in case of armed
conflict. First, Principle 21 sets out the basic principles of the conference that the State
has the sovereign right to develop its own resources in accordance with the Charter of
the United Nations and the principles of international law, in accordance with its own
environmental policies, etc. and ensure that activities within jurisdiction or control do
not damage the environment of other States or territories outside the jurisdiction of the
22
A potential complication when analysing what may constitute customary IEL is that there have been
few
State-by-State assessments to ascertain State practice and opinio juris; most assessments rely on
international declarations and on isolated samples of practice.
23
Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 16
June
1972, UN Document A/CONF.48/14/Rev. 1 (1973).
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State.24 The final point is to reform and extend the Trail Smelter principle within the
framework of environmental protection as well as the law of neutrality. However, one
author argued that the Trail Smelter Principle came from a quantum context and that
Principle 21 was extended in the Declaration and the question of the common promise to
all. 25 But the applicability to hostile actions more directly related to armed conflict,
remains Principle 26. This is relevant to States to protect the world from nuclear
weapons and other forms of mass destruction. It instructs States to finalise agreement as
soon as possible on international organs for the complete abolition and destruction of
such weapons. 26 The principle relates to weapons of mass destruction, but does not
apply to other combat activities of a more targeted or limited nature.

Declaration on Environment and Development (Rio Declaration) (1992)

The United Nations Conference on Environment and Development was held in Rio de
Janeiro, Brazil in 1992, shortly after the 1990-1991 Gulf War, which renewed
international concerns about environmental handling during armed conflict.27 Among
the many outcomes of the meeting was the Rio Declaration, which explains the
principles of sustainable development and recognizes that environmental protection is an
integral part of long-term socio-economic well-being. 28 It reviewed and revised
Stockholm's Rio Declaration on Principle 21, and altering the focus from sovereign right
to develop in accordance with its own environmental policy as a limited right in its own
environmental and development policy. This right is not openly restricted in times of
peace. In addition, the Rio Declaration raised awareness of the relative importance of

24
Id., Principle 21 (emphasis added).
25
Tarasofsky (1993:67-68).
26
Stockholm Declaration, supra note 214, Principle 26.
27
Rio Declaration on Environment and Development, UN Document A/CONF.151/26, vol. I, 13 June
1992.
28
Id., Principles 1 and 2.
131 Jus Carta Edition 3 ISBN 978-81-951020-1-3

this principle by making it Principle 2 in the Declaration just before the declaration that
human health and productivity were the main drivers of sustainable development. 29
Commentators noted that the direct interpretation of the principle implied that even if
such damage is justified under the law of armed conflict and humanitarian law, it still
imposes liability for environmental damage during armed conflict and also imposes
responsibility for damage off the territory or country or jurisdiction.

Programme of Action for Sustainable Development (Agenda 21) (1992)

Another important document adopted at the 1992 Rio de Janeiro conference was Agenda
21, an action plan for sustainable development at all levels of national and international
governance. Most of the documents are on peacetime issues and do not mention
environmental protection during armed conflict. However, in the section on detailed
procedures, Article 39.6 stipulates that in the event of an armed conflict, in order to
resolve a large-scale unlawful environmental destruction, measures in accordance with
international law should be considered. This article explains that, taking into account the
ICRC's experience and responsibilities, the United Nations General Assembly and the
6th UN Committee should be involved in such efforts.30

World Summit on Sustainable Development (2002)

In 2002, the World Summit on Sustainable Development was held in Johannesburg,

South Africa. The Summit affirmed the principles of the Rio Declaration and Agenda

29
Parsons (1998:441-456).
30
Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th Session, Article 39.6,
Agenda Item 21, UN Doc A/Conf.151/26, 14 June 1992.
132 Jus Carta Edition 3 ISBN 978-81-951020-1-3

21, but did not issue any additional recommendations, resolutions or declarations
directly related to environmental protection during armed conflict.31

UNEP Governing Council Decision 23/1/IV (2005)

At UNEP’s 23rd Governing Council, it was recommended that the organization

strengthen its capacity to address post-conflict environmental concerns, particularly by
undertaking post-conflict assessments, promoting clean-up of environmental hotspots
and mainstreaming environmental concerns into the humanitarian and recovery
assistance of the UN.

COMMENTARY ON THE APPLICABILITY OF IEL DURING ARMED CONFLICT

Public International Law, International Environmental Law (IEL) and International

Humanitarian Law's (IHL) many prominent researchers have written about how and
when at least some IELs can remain in power during armed conflict. However, it is
important to take into account two preliminary factors regarding the nature of armed
conflict. First, it is important to note the difference between an IEL applied to
international conflicts and an IEL applied to internal conflicts. Countries experiencing
internal armed conflict are bound by the IEL. Failure to fulfil these obligations raises the
question of whether this condition justifies rejection. There is also the issue of fair
obligations. A country is bound by the applicable IHL rules, but is generally not bound
by IEL. It may be useful to apply an IEL to domestic conflict or wars, but it is unclear

31
Report of the World Summit on Sustainable Development, UN Document A/CONF.199/20, 26 August-
4
September 2002.
133 Jus Carta Edition 3 ISBN 978-81-951020-1-3

whether this will be possible or whether the IEL can only be applied to international
disputes.32

Second, there may be differences in the application of international law in the event of
armed conflict between two aggressive parties that are not a member or a neutral party.
Bothe investigated these differences in the early 1990s and suggested that the impact of
the IEL is largely affected by whether the environmental damage caused by the conflict
to the hostile party is caused by another belligerent party or a neutral party. With respect
to the neutral State’s environment, Bothe argued that the relations between the
aggressive or hostile and neutral States are governed by common rules of peace time,
while international environmental laws do not apply to belligerent States, leaving only
the right to environmental protection in war. 33

International Law Commission findings on the effects of armed conflict on treaties

In 2000, the International Law Commission, with the support of the General Assembly,
proposed to add work relating to the impact of armed conflicts on treaties to its long-
term programme. 34 In 2004, the General Assembly approved the International Law
Committee's decision to include it on the current agenda. Since then, the Committee has
reviewed several reports prepared on this subject, and has reviewed and commented on
several draft documents prepared by the Drafting Committee on the impact of armed

32
Gasser (1995:637-640), noting an ICRC report that mentioned the “the unsatisfactory state of the law
relative to the protection of the natural environment in non-international armed conflicts.” Hourcle
(2000:653-681) argued that outside of IHL, the only environmental protections applicable to internal
armed conflicts are those found in domestic law. Hourcle raised an additional line of inquiry by
questioning whether the deployment of peacekeeping forces was enough to make a conflict international
and thus trigger both the law of war and other international law.
33
Bothe (1991: 54, 60).
34
Report of the International Law Commission, 59th Session, 7 May-5 June 2007 and 9 July-10 August
2007,
UNGA Supp. A/62/10.
134 Jus Carta Edition 3 ISBN 978-81-951020-1-3

conflict on treaties.35 The draft article is an attempt to code the application of the treaty
in case of armed conflict. The current draft article states that encouraging armed
conflicts between hostile parties or between belligerents and neutral States does not
necessarily terminate or interfere with the treaties. 36 The possibility of termination,
withdrawal or revocation of validity should be determined with reference to Articles 31
and 32 of the Vienna Convention on Treaty Law, the nature of the armed conflict, the
extent of the armed conflict and the consequences of armed conflict. Disputes over the
contract, the subject of the contract and the number of parties to the contract should also
be taken into account.37 Treaties in which the subject proposes to continue working will
continue to work during armed conflict. The list of common targets includes, among
other things, IHL, treaties relating to permanent order or condition, and agreements on
environmental protection.38 The general category discussion included a discussion of
whether or not a treaty involving the compelling law should be added, but ultimately
this was not done and it was decided to allow the compelling legal principles and norms
by nature to remain unaffected.39

Contemporary customary IEL

Some observers have noted the possibility that particular international environmental
principles may already, or may soon, constitute customary IEL. One article on the Trail
Smelter Principle argues that although the “prohibition of trans frontier pollution” is not
35
International Law Commission, Effects of Armed Conflicts on Treaties, UNGA Document
A/CN.4/L.727/
Rev.1, 6 June 2008; International Law Commission, Effects of Armed Conflicts on Treaties, Addendum,
UNGA
Document A/CN.4/L.727/Rev.1/Add.1, 11 July 2008.
36
Intenational Law Commission, Effects of Armed Conflict on Treaties, supra note 277, Article 3.
37
Id. Article 4.
38
Id. Article 5.
39
International Law Commission, Statement of the Chairman of the Drafting Committee, Pedro
Comissário
Afonso, Effects of Armed Conflicts on Treaties, 17 July 2008.
135 Jus Carta Edition 3 ISBN 978-81-951020-1-3

part of international agreements, through references in declarations and decisions it has

become “generally acknowledged as part of customary law.” 40 Another notes that the
United States was the only State actively opposed to the passage of the World Charter
for Nature when the resolution was brought before the United Nations, 41 and proposes
that “since it was adopted by a significant number of States, at the very least the Charter
is incorporated in customary international law.” 42 This reasoning on the World Charter
for Nature suggests that resolutions passed by the UN General Assembly may constitute
customary international law. Indeed, as one article has noted, “several law theorists are
concluding that the unanimous or near-unanimous passage of resolutions and
declarations by an international organization such as the UN General Assembly
constitutes a basis for customary international law.”43 The impact of such an approach
could be quite significant, as it could convert provisions contained within documents
currently considered non-binding soft law into hard law.

CONCLUSION

Scholarship has provided a range of approaches to determine when and how IEL might
continue to apply during armed conflict. However, the majority of the commentary
occurred in the 1990s, following the 1990-1991 Gulf War. There has been less
commentary on the subject in recent years, even though IEL has continued to grow and

40
Von Heinegg and Donner (1994: 300) (discussing the sic utere tuo principle in the context of
UNCLOS).
41
See Ross (1992:515–534), citing the UN documents and the results of the General Assembly vote. The
results
of the General Assembly vote were 103 in favour, 18 abstentions and one vote against (provided by the
United
States). Id. Every UN Member State has a seat in the General Assembly, and in 1982 the UN had 157
members.
42
Id. at 534.
43
Anderson and Grewell (2000:11).
136 Jus Carta Edition 3 ISBN 978-81-951020-1-3

become more robust and easier to enforce. In addition, many countries have elaborated
or updated military manuals to incorporate environmental provisions. It would thus be
useful for the international community to provide further research, analysis and
clarification regarding which, if any, of the various approaches should be used.
Clarifying when and how IEL applies during armed conflict could have far-reaching
consequences. One potentially significant implication would be the clear application of
IEL to non-international armed conflicts. As noted above, most provisions of IHL apply
only to international armed conflicts; to the extent that they apply to internal armed
conflicts, those provisions – including the environmental provisions – are fewer and
weaker. IEL, however, makes no such overt distinction, and could potentially be applied
to all situations regardless of the type of conflict involved. Alternatively, depending on
the theory of application, IEL may continue to apply with the same or greater force
during internal conflicts than during international conflicts. Establishing a foundational
methodology for determining if IEL continues to apply during armed conflict is a
substantial first step. Nevertheless, there are other complexities that likewise warrant
consideration by the international community.

First, there are similar but distinct approaches to assessing the extent to which MEAs
apply as compared to customary IEL. The primary differences stem from difficulties in
determining which provisions constitute customary IEL, and then answering questions
such as which of those customary provisions are comparable to those contained in
MEAs.

Second, it should be considered whether it is desirable to attach liability for violations of

IEL to State Parties and/or to individuals. Applying international law directly to
individuals often increases the efficacy and deterrence effect of a given provision. Such
direct application may apply in a couple of circumstances – for example, when a norm
137 Jus Carta Edition 3 ISBN 978-81-951020-1-3

of IEL is self-executing and when a non-State actor has reached the point where it can
be considered a subject of international law.

Third, the relationship between related international environmental treaties should be

clarified. For instance, the Convention on Biological Diversity is an overarching
conservation agreement that encompasses resources that are also more specifically
addressed by other instruments. Thus, if the Convention on Biological Diversity is
deemed not to apply, does the more specific agreement regulating the resource at issue
(e.g. CITES or CMS) automatically apply in its place?

And fourth, it should be decided whether military operations are to be included in global
attainment standards and requirements under MEAs. For example, should carbon
dioxide emissions from military activities be added to national emission limits under the
Kyoto Protocol? The international legal community should provide more details and
explanations in such matters.
138 Jus Carta Edition 3 ISBN 978-81-951020-1-3

CYBER SECURITY AND PROCEDURAL ASPECT UNDER INDIAN FRAMEWORK: A CRITICAL

ANALSYIS

- SONU CHOUDHARY

INTRODUCTION

The evolution of Information Technology gave birth to the cyber space wherein internet
provides equal opportunities to all the people to access any information, data storage,
analyze etc. with the use of high technology1. Due to increase in the use of technology and
internet and anonymous nature of the internet, misuse in the cyberspace grown up which
gave birth to cybercrimes at the domestic and international level as well 2. The discussed
cybercrimes and their harassment signalled the beginning of the rise of new and complex
legal issue.

According to the survey conducted by Freedom of the Net in 2016, it has been
ascertained that there was decline in Internet Freedom Score of India. The country
scores 41 out of 100 and the report further suggested that there is partial freedom of
speech on internet of India. This report also highlighted the issue of harassing women
on cyberspace3.

In India, Japleen Pasricha conducted a survey of 500 social media users and interviewed ten
of the respondents to highlight harassment of women on social media. The study found 4:

1
Dhawesh Pahuja, Cyber Crimes and the law, Legal India Portal. Available at
https://www.legalindia.com/cyber-crimes-and-the-law ( last visited on January 2021)
2
Ibid
3
Available at https://feminisminindia.com (last visited on January 2021)
4
Harriet Taylor, “Mary Meeker: India now has more internet users than US”, CNBC, June 1,
2016,http://www.cnbc. com/2016/06/01/mary-meeker-india-now-has-more-internet-users-that-us.html;
Vlad Savov, “India rises past the US to become the internet’s second biggest user”, The Verge, June 2,
2016, http://www.theverge.com/2016/6/2/11837898/india-internet-userpopulation-stats-mary-meeker-
139 Jus Carta Edition 3 ISBN 978-81-951020-1-3

(i) Online abuse is a serious issue in India, affecting more than half of survey
respondents, yet women and other targets lack support and understanding to
respond effectively.
(ii) Thirty-six percent of respondents who had experienced harassment online took no
action at all. Twenty-eight percent reported that they had intentionally reduced their
online presence after suffering online abuse.
(iii) Some respondents found it hard to think of online harassment on par with violence,
even though 30 percent of those who had experienced it found it “extremely
upsetting” and 15 percent reported that it lead to mental health issues like
depression, stress, and insomnia.
(iv) Though avid users of social media, respondents lose trust in popular platforms
because of harassment against them or someone they know. Over half want stricter
community standards for content, and the ability to escalate reports of abuse.
(v) Mechanisms to report abuse on social media platforms fall short. Victims are more
likely to block abuse than to report it, yet blocking is ineffective against organized,
sustained campaigns using multiple accounts. Assailants readily exploit
mechanisms to report abuse, alleging their victims have violated platform
guidelines to disable their accounts.
(vi) Thirty percent of survey respondents said they were not aware of laws to protect
them from online harassment. Only a third of respondents had reported harassment
to law enforcement; among them, 38 percent characterized the response as not at all
helpful.

2016; “India Pips US in Number of Internet Users”, Huffington Post India, June 2, 2016, http://
www.huffingtonpost.in/2016/06/02/india-internet-usage_n_10259450.html.
140 Jus Carta Edition 3 ISBN 978-81-951020-1-3

In the recent judgment of R. Mahalakshmi Vs. Commissioner of Police, Greater

Chennai & others, 5 Madras High Court observed the true nature of social media and held
that To spoil our culture and tradition the cyber criminals have started more than 3 million
pornography websites which are making our young society to fallen in wrong direction.
This may lead to unacceptable things like Rape and Sexual Harassment, etc. All these
internet search engines and social media give alternative to regular method of calling and
messaging. The data stores in private environment and government has no control over
these companies. It is easy to organize any event which creates more disaster to our Nation.
Informing the same to be grossly abusive and menacing in nature and intended to cause
annoyance, inconvenience, obstruction, insult, injury, enmity, hatred by persistent use of
computer resources and misuse of photographs of women6.

LEGISLATIONS AND THE PRESCRIBED RULES

Information Technology Act, 2000

The Information Technology Act, 2000 (“IT Act”) widely regulates the
interception, monitoring, decryption and collection of information of digital
communications in India. More specifically, section 69 7 of the IT Act empowers the Central
Government and the State Governments to issue directions for the monitoring,
interception or decryption of any information transmitted, received or stored through a
computer resource. Section 69 of the IT Act expands the grounds upon which

5
2016(4) MLJ (Crl)184
6
The court observes:
“Social Media has become the Danger to our Nation. Terrorist are using the Social Media effectively for
their activities starting from recruitment to execution. Social Media has to be viewed very seriously. We
come to know that to block any website in India it is taking more than 10 days and which has to come
down to 1 day to reduce the damage. The ISP's are facing technical difficulties to block certain websites”.
7
The Information Technology Act, 2000 ( Act No 21 of 2000)
141 Jus Carta Edition 3 ISBN 978-81-951020-1-3

interception can take place as compared to the Telegraph Act 8. As such, the
interception of communications under Section 69 is carried out in the interest of:

● The sovereignty or integrity of India;

● Defence of India;
● Security of the State;
● Friendly relations with foreign States;
● Public order;
● Preventing incitement to the commission of any cognizable offense relating to the
above; and
● For the investigation of any offense.

It must be noted that although the grounds for interception are roughly the
same as the Telegraph Act (except for the condition of prevention of incitement of
only cognizable offences, defence of India and the addition of investigation of any
offence) the IT Act does not have the overarching condition that interception can only
occur in the case of public emergency or in the interest of public safety. Additionally,
section 69 of the IT Act mandates that any person or intermediary who fails to assist
the specified agency with the interception, monitoring, decryption or provision of
information stored in a computer resource shall be punished with an imprisonment for
a term which may extend to seven years and shall be liable for a fine.
Section 69 Powers to Issue Directions for Interception or Monitoring or Decryption of Any
Information through Any Computer Resource9, Section 69 a Power to Issue Directions for
Blocking for Public Access of Any Information through Any Computer Resource and
section 69B Power to Authorize To Monitor and Collect Traffic Data or Information
through Any Computer Resource for Cyber Security.

8
The Indian Telegraph Act, 1885 (Act No. XIII OF 1885)
9
Substituted Vide ITAA 2008
142 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Information Technology (Procedure and Safeguards for Interception, Monitoring and

Decryption of Information) Rules, 2009

Just like with Rule 419A of the Indian Telegraph Rules, the Information
Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009 (“IT Interception Rules”) framed under Section 69 and
69B stipulate as to who may issue directions of interception and monitoring, how such
directions are to be executed, the duration they remain in operation, to whom data
may be disclosed, confidentiality obligations of intermediaries, periodic oversight of
interception directions by a Review Committee under the Telegraph Act, the retention
of records of interception by intermediaries and to the mandatory destruction of
information in appropriate cases.

According to the IT Interception Rules, the secretary of the Ministry of Home

Affairs has been designated as the "competent authority" to issue directions
permitting the interception, monitoring, and decryption of communications. At the
State and Union Territory level, the State Secretaries respectively in charge of the
Home Departments are designated as "competent authorities" to issue interception
direction10. In unavoidable circumstances the Joint Secretary to the Government of
India, when so authorised by the Competent Authority, may issue an order.
Interception may also be carried out with the prior approval of the Head or the second
senior most officer of the authorised security agency at the Central Level and at the
State Level with the approval of officers authorised in this behalf not below the rank
of Inspector General of Police, in the below mentioned emergent cases; in remote
areas, where obtaining of prior directions for interception of messages or class of

10
Secretary in the Ministry of Home Affairs in case of the Central Government, Secretary in charge of the
Home Department in case of a State Govt. or Union territory; Rule 2(d), Information Technology
(Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
143 Jus Carta Edition 3 ISBN 978-81-951020-1-3

messages is not feasible; or for operational reasons, where obtaining of prior

directions for interception of message or class of messages is not feasible; however, in the
above circumstances the officer would have to inform the competent authority in
writing within three working days about the emergency and of the interception,
monitoring or decryption and obtain the approval of the competent authority within a
period of seven working days. If the approval of the competent authority is not
obtained within the said period of seven working days, such interception or
monitoring or decryption shall cease and the information shall not be intercepted or
monitored or decrypted thereafter without the prior approval of the competent
authority11.

If a state wishes to intercept information that is beyond its jurisdiction, it must

request permission to issue the direction from the Secretary in the Ministry of Home
Affairs12.

If authorised by the competent authority, any agency of the government may intercept,
monitor, or decrypt information transmitted, received, or stored in any computer resource
only for the purposes specified in section 69(1) of the IT Act 13 .The IT Interception Rules
further provide that the competent authority may give any decryption direction to the
decryption key holder 14.

11
Rule 3 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009.
12
Rule 6, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009
13
Rule 4, Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009.
14
Rule 5, Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009.
144 Jus Carta Edition 3 ISBN 978-81-951020-1-3

The officer issuing an order for interception is required to issue requests in

writing to designated nodal officers of the service provider 15. Upon receiving an order for
interception, service providers are required to provide all facilities, co-operation, and
assistance for interception, monitoring, and decryption. This includes assisting with: the
installation of the authorised agency's equipment, the maintenance, testing, or use of such
equipment, the removal of such equipment, and any action required for
accessing stored information under the direction16. Additionally, decryption key holders are
required to disclose the decryption key and provide assistance in decrypting
information for authorized agencies 17. Any direction issued by the competent authority
must contain the reasons for direction, and must be forwarded to the review committee
seven days after being issued 18. In the case of issuing or approving an interception order, in
arriving at its decision the competent authority must consider all alternate means of
acquiring the information19. The order must relate to information sent or likely to be sent
from one or more particular computer resources to another (or many) computer resources20.

The reasons for ordering interceptions must be recorded in writing, and must
specify the name and designation of the officer to whom the information obtained is
to be disclosed, and also specify the uses to which the information is to be put 21.

15
Rule 13, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009
16
Rule 19, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009.
17
Rule 17, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009
18
Rule 7, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009
19
Rule 8, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009.
20
Rule 9, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009
21
Rule 10, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009.
145 Jus Carta Edition 3 ISBN 978-81-951020-1-3

The directions for interception will remain in force for a period of 60 days,
unless renewed. If the orders are renewed they cannot be in force for longer than 180
days22.

Authorized agencies are prohibited from using or disclosing contents of intercepted

communications for any purpose other than investigation, but they are permitted to share
the contents with other security agencies for the purpose of investigation or in judicial
proceedings. Furthermore, security agencies at the union territory and state level will share
any information obtained by following interception orders with any security agency at the
centre23.

All records, including electronic records pertaining to interception are to be

destroyed by the government agency “every six months, except in cases where such
information is required or likely to be required for functional purposes” 24. In addition,
all records pertaining to directions for interception and monitoring are to be destroyed
by the service provider within a period of two months following discontinuance of
interception or monitoring, unless they are required for any ongoing investigation or
legal proceedings25. The contents of intercepted, monitored, or decrypted information
will not be used or disclosed by any agency, competent authority, or nodal officer for
any purpose other than its intended purpose26.

22
Rule 11, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009.
23
Rule 25(2) & (6), Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009
24
Rule 23(2), Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009
25
Rule 23(2), Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009
26
Rule 25, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009.
146 Jus Carta Edition 3 ISBN 978-81-951020-1-3

The agency authorised by the Secretary of Home Affairs is required to appoint

a nodal officer (not below the rank of superintendent of police or equivalent) to
authenticate and send directions to service providers or decryption key holders 27.
Every fifteen days the officers designated by the intermediaries are required to
forward to the nodal officer incharge a list of interceptions orders received by them.
The list must include the details such as reference and date of orders of the competent
authority28.

The service provider is required to put in place adequate internal checks to

ensure that unauthorised interception does not take place, and to ensure the extreme
secrecy of intercepted information is maintained 29. The contents of intercepted
communications are not allowed to be disclosed or used by any person other than the
intended recipient 30. Additionally, the service provider is required to put in place
internal checks to ensure that unauthorized interception of information does not take place
and extreme secrecy is maintained. This includes ensuring that the interception
and related information are handled only by the designated officers of the service
provider31.

Apart from the above two statues, a number of criminal statues provide for
interception of communications and how such intercepted communications may be
used. The Unlawful Activities Prevention Act, 1967 allows for information collected

27
Rule 12, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules,2009
28
Rule 18, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009
29
Rule 20& 21, Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009.
30
Rule 25, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009.
31
Rule 20, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009
147 Jus Carta Edition 3 ISBN 978-81-951020-1-3

through interception of communications (under the IT Act or the Telegraph Act) to be

produced as evidence for an offence under the Act 32.

PROCEDURAL ASPECT

Cyber crime in general need a special procedure for investigation and prosecution
due to the intangible data involved in it. When a cyber crime is reported when the victim is
an individual, there can be three types of cases:

1. Cases of interpersonal harassment;

2. Financial crimes where the victim is targeted with phishing, job scam types of attacks or
his/her ATM/debit/credit card is unauthorisedly scanned or accessed and used and
3. Online harassment including cyber assisted offline crimes.

In all these cases, the procedure for filing the report, investigation, collection of evidences,
storing the evidences and so on may be quite similar to general procedure practices as are
followed in other cyber crime cases including website hacking, phishing attack or even
cyber terrorism cases; for example, the police needs to look for the chain of custody, time
stamp, digital data, source code, communication transactions and so on. But, when it comes
to women the entire procedure takes a different turn due to privacy issues of the victims.

Investigation in Cyber Crime

No special procedure to conduct investigation, trial etc is provided in IT Act

so the general procedure laid down in CrPc would apply with respect to
investigation, charge sheet, trial, decision, sentencing and appeal of cyber crimes.

32
Section 46, Unlawful Activities Prevention Act, 1967
148 Jus Carta Edition 3 ISBN 978-81-951020-1-3

According to judicial interpretation, investigation consists generally of the following

steps:

1. Proceeding to the spot;

2. Ascertainment of the facts and circumstances of the cases;

3. Discovery and arrest of the suspected offender;

4. Collection of evidence relating to the commission of the offence which may consist
of:

a) The examination of various persons (including the accused) and

the reduction of the statements into writing, if the officer thinks fit;

b) The search of places or seizure of things considered necessary for the

investigation are to be produced at the trial; and

5. Formation of the opinion as to whether on the material collected there is a case to

place the accused before a Magistrate for trial, and if so taking the necessary steps
for the same by the filing of a charge-sheet under Section 173 of Code of Criminal
Procedure.

However Section 7833 of the IT Act empowers police officers of the rank of Inspectors and
above to investigate offences under the IT Act. Many states have set up dedicated cyber
crime police stations to investigate offences under this Act. Thus, for example, the State of
Karnataka and State of Andhra Pradesh has set up a special cyber crime police station
responsible for investigating all offences under the IT Act with respect to the entire territory
of Karnataka or Andhra Pradesh.

33
78 Power to investigate offences. -Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), a police officer not below the rank of [Inspector] shall investigate any offence under this Act.
149 Jus Carta Edition 3 ISBN 978-81-951020-1-3

Powers of Police Officers in investigating Cyber Crimes

Power to Confiscate: Section 7634 lays down the conditions under which
documents or things which contain any information about the cyber crime or were
used in committing the crime can be confiscated by police or investigating officer.

Power of Arrest: In India, sec 80 35 of the IT Act, 2000 (Amended in 2008) states that
notwithstanding anything contained in the CrPc 1973, any police officer not below the rank
of an inspector or any other officer of the central government or a state government
authorized by the central government in this behalf may enter any public place and search
and arrest without warrant any person found therein who is reasonably suspected of having
committed or of committing or of being about to commit any offence under this Act 36.

It may be noted that this provision specifically speaks about cognizable

offences and as per s. 77B of the Act, any offences which is punishable with
imprisonment for a period of three year and above is cognizable offence. The Act itself
does not mention about any special police station where the victim can report the crimes. A
plain reading of this section may say that the crimes can be reported to the police in the
same procedure as has been mentioned in the CrPC S.154.

34
76. Confiscation
35
80. Power of police officer and other officers to enter, search, etc
36
Explanation added to s.80 states, that
(1) For the purpose of this section, the expression ‘Public Place’ includes any public conveyance, any hotel,
any shop or any other place intended for use by, or accessible to the public.
(2) Where any person is arrested under subsection(1) by an officer other than a police officer, such officer
shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in
the case or before the officer-in-charge of a police station.
(3) The provisions of the Code of Criminal Procedure, 1973 shall, subject to the provisions of this section,
apply, so far as may be, in relation to any entry, search or arrest , made under this section.
150 Jus Carta Edition 3 ISBN 978-81-951020-1-3

The Criminal Law Amendment Act, 2013 amended S.154 of the CrPc by
adding some new provisions after this paragraph and the first of these new provision
states;

Provided that if the information is given by the women against whom an offence under
section 326A, section 326B, sections 354, 354A, 354B, 354C, 354D, sections 376, 376A,
376B, 376C, 376D, 376E, or section509 of Indian Penal Code is alleged to have been
committed or attempted, then such information shall be recorded by women police
officer, or any women officer.

Search to arrest the accused: Section 47 CrPC: A Police officer is empowered to search
anywhere in India outside his jurisdiction if necessary. In general they take the help of local
police.

Power to Search persons: Section 156 CrPC: Power to investigate cognizable offences. On
mere suspicion that a person is involved in committing a crime or is potential to commit a
crime police can arrest under this provision.

Power to investigate non cognizable offences: Section 155 CrPC: In case

of cognizable offence police can immediately go to the scene of offence arrest all
suspected accused without a warrant, collect evidence and record statements of
witnesses.

Power to issue summons: Section 91 CrPC: Summon to produce

documents. If a police officer has information that a person is in possession of some
incriminating material such as floppy drives or pen drives etc. he can send summons
to that person and ask him to produce the document or a thing to the police officer
for the purposes of investigation. Summons is written orders addressed to a person
151 Jus Carta Edition 3 ISBN 978-81-951020-1-3

in whose possession the required document or a thing is available. Summons is police

officer is arrest without warrant. All cyber crimes are recognized as
cognizable offences. Sec 41 of Code of Criminal Procedure (CrPC) confers powers
generally served in person, and if he or she is not available they can be served to any other
family member. In case if the house is locked summons would be pasted to a conspicuous
portion of the house.

Power to require attendance of witnesses: Section 160 CrPC: As per this

provision the Investigating Officer can summon persons who are acquainted with the
facts of the case or can give some information about the offence could be
summoned to come to the police station and give statements. These statements shall
be recorded by Police officer and need not be signed by the maker of statement.
These statements are called as 161 statements, which can be used during trial.

Power to issue Search Warrant: Section 93 CrPC: General provision as to search warrants.
If a person doesn‘t respond to summons or refuses to receive summons the next coercive
method available in criminal procedure is issuing of search warrant. In this process a police
officer is entitles to enter any premises and search it and seize documents, which are useful
for the investigation.

Procedure for research: Sec 100 of CrPC: Search: A police officer can enter
the premises and has to prepare a seizure memo which contains a list of things seized
in the said house. The search process shall be conducted in the presence of two
respectable inhabitants of the same locality. They have to sign the seizure memo.

BAIL IN CYBER CRIMES

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There are two classes of offences, bailable and non bailable recognized by Code of
Criminal Procedure. Bailable offences are petty offences whereas non bailable offences are
serious offences. When an accused is arrested for the alleged commission of a cyber crime
he can apply for bail. If the offence is bailable, court grants bail to him under sec 436 of
CrPC. If the offence alleged is non-bailable, court grants bail Sec 437 or 439 of CrPC.

There is another classification on the basis of power of police to arrest the accused, i.e.,
cognizable and non-cognizable offences, for a cognizable offence police officer can arrest
the accused without a warrant and for a non-cognizable offence he cannot do so without a
warrant. Information regarding the fact that “whether a particular offence is bailable or not”
is available in the first schedule of CrPC. However, Section 77-B has been inserted under
2008 IT Amendment Act as per which the offence punishable with imprisonment of three
years and above shall be cognizable and the offence punishable with imprisonment of
three years shall be bailable.

CYBER CRIME AND LAW OF EVIDENCE

Accordingly, since Cyber crimes are committed in a virtual space, the evidence would be
intangible and does not exist in a permanent form. Collecting Cyber Evidence without any
causing damage to it is a big task and requires good skill. The second difficulty in this
process is getting the evidence admissible in court of law. Evidence act deals with all kinds
of tangible evidence and it is not of much relevance to cyber crimes. To meet the
requirement some amendments are made in Evidence Act. The confluence of two legal
paradigms, i.e., the law of evidence and that of information technology has made the legal
domain at par with the contemporary challenges of the cyber space.
Firstly, the traditional law defining the term “Evidence” has been amended to include
electronic evidence in Section 3, The Evidence Act, 1872. The Indian Evidence Act has
153 Jus Carta Edition 3 ISBN 978-81-951020-1-3

been amended by virtue of Section 92 of Information Technology Act, 2000 (Before

amendment). Section 3 of the Act was amended and the phrase “All documents produced
for the inspection of the Court” was substituted by “All documents including electronic
records produced for the inspection of the Court”. The other parallel legal recognition
appeared in Section 4, The Information Technology (Amendment) Act, 2008, with the
provision for acceptance of matter in electronic form to be treated as “written” if the need
arises. These show a prima facie acceptability of digital evidence in any trial 37.

In documentary evidence, in Section 59, for the words “Content of documents” the words
“Content of documents or electronic records” have been substituted and Section 65A & 65B
were inserted to incorporate the admissibility of electronic evidence.

The other most crucial question in cybercrime investigation regarding the reliability of
digital evidence has also been clarified by Section 79A of the IT (Amendment) Act, 2008,
which empowers the Central government to appoint any department or agency of Central or
State government as Examiner of Electronic Evidence. This agency will play a crucial role
in providing expert opinion on electronic form of evidence 38.

The Indian Evidence Act has been amended by virtue of Section 92 of Information
Technology Act, 2000 (Before amendment). Section 3 of the Act was amended and the
phrase “All documents produced for the inspection of the Court” was substituted by “All
documents including electronic records produced for the inspection of the Court”.
In Section 61 to 65, the word “Document or content of documents” have not been
replaced by the word “Electronic documents or content of electronic documents”.
Thus, the intention of the legislature is explicitly clear i.e. not to extend the
applicability of section 61 to 65 to the electronic record. It is the cardinal principle
37
Arindam Datta, Forensic Evidence: The Legal Scenario. Available at
http://www.legalserviceindia.com/article/l153-Forensic-Evidence.html (last visited on January 2021)
38
Ibid
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of interpretation that if the legislature has omitted to use any word, the
presumption is that the omission is intentional. It is well settled that the
Legislature does not use any word unnecessarily. In this regard, the Apex Court in
Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa 39 held that

“Parliament is also not expected to express itself unnecessarily. Even as Parliament does
not use any word without meaning something, Parliament does not legislate where no
legislation is called for. Parliament may not be assumed to
legislate unnecessarily”40.

The main objective to introduce the specific provision has its origin to the technical nature
of the evidence particularly as the evidence in the electronic form cannot be produced in the
court of law owing to the size of computer/server, residing in the machine language and
thus, requiring the interpreter to read the same 41.

CONCLUSION

In lack of any proper procedure to be followed, we take the help of provisions

of Cr.P.C if any sort of cyber crime occurs. In practice we have seen that if the victim
delays the reporting or the police delays in their initial investigation, the
intermediaries may not cooperate owing to the delay in time. It is only when police
approaches the intermediaries within a time period (in general one week to three
months), that this provision can be attracted to attach liability to the intermediaries.But
how far theoretical provisions are beneficial to the women victims in practice? It must
be remembered that unless there is general sensitisation about the gravity of the issues

39
AIR 1454, 1987 SCR(3) 317
40
Ibid
41
Arindam Datta, Supra note 37.
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and availability of the legal remedial measures, no victim, especially women and their
families, may feel comfortable and confident about reporting the cases. There should be
awareness among police, victims, lawyers and judges in order to tackle with the cyber
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PANDEMIC AND POLITICS – SINGAPORE’S DUAL TRACK COVID-19 RESPONSE

- SPANDANA SUDEEP

ABSTRACT

This paper reviews how Singapore has responded to the COVID-19 pandemic. Given
the unique nature of Singapore’s political system and government, the measures taken to
curb the spread of the virus and the role of the nature of the government has been
elaborated on. An attempt is made to show whether the Singaporean regime was
completely successful in their handling of the pandemic or whether there were
drawbacks in their approach towards it. This paper also gives a brief on the
parliamentary elections held in the midst of the pandemic and the existing political
system in the city-state.

INTRODUCTION

Singapore, officially the Republic of Singapore, is a sovereign island city-state in South

East Asia. In the aftermath of world war II, Singapore became a separate crown colony,
but after struggling for independence from the British for a considerable period, they
established a self-governing system in 1959. Singapore subsequently joined the
federation of Malaysia in 1963. However, in 1965, Singapore separated from Malaysia
due to differences in political and economic outlooks and emerged as a fully
independent and sovereign land.

The country is a constitutional republic and has a multi-party system. Nonetheless, the
People’s Action Party (PAP) has been the ruling political party in Singapore since 1959
and continues to hold an overwhelming majority in the Parliament. This party was
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established by Lee Kuan Yew who proceeded to be the Prime Minister of the nation
from 1959 to 1990, a good period of 31 years. The founding member of the Party is
credited with bringing Singapore to the stature it stands at currently, from a poor nation
freshly out of the shadow of a federation to being one of the most developed and
technologically advanced countries in the world.

Internationally, Singapore has the reputation of being a soft authoritarian state. Its
political system is described as paternalistic, hierarchical and elitist in nature (Leong
2000, 438). The latter part of it can be proved by the manner in which people are
recruited for being a part of the higher ranks in the political sphere. There exists a
cohesive, close-knit network due to the relatively small size of the country. Elite
relations were and continue to be influenced by Lee Kuan Yew and his family's
partisanship. Moreover, emphasis is placed on the existence of a military career and a
Chinese background for being a part of the top-ranking political circles. The subtle
authoritarian nature of the government is brought out in The Ruling Elite of Singapore
(Barr 2014, 19), a book written by Michael D. Barr. In this book, the people in authority
and their networks of power are mapped out. It goes on to describe the workings of
former prime minister and founder of PAP, Lee Kuan Yew who paved the path for
elitism and Chinese dominance in the Singaporean political system which subsequently
resulted in the generation of stable authoritarianism.

To give more insight into the political workings and framework of the country, a deeper
understanding of the Singaporean government’s stance on citizen participation and
public opinion is required. The government in question believes that politics is solely
about leadership. According to their elitist ideology, they are the best to ascertain the
fate and destiny of the country. As a result of this manner of thinking, they don’t place a
great deal of importance on public opinion. Furthermore, the ruling party PAP has a
tight political hold and control because of which there are few openings for dissent. The
158 Jus Carta Edition 3 ISBN 978-81-951020-1-3

existence of certain specific procedures and laws (i.e., legislative measures, and policies
concerning central issues) thwart political resistance and opposition.

Over the past few months, the world has battled with the flare-up of a pandemic. The
Coronavirus disease 2019 (COVID-19) has caused wide spread damage in terms of
health, economy, finance, political and social spheres. Lockdowns, restraints on social
gatherings and travel restrictions have been imposed on people in multiple countries to
help contain the spread of the virus, causing a drop in their economy.

COVID-19 is a novel encounter for the entire world. Since it’s new, there is no
definitive way to tackle the disease. Countries had to resort to several months of
extensive research and study to assess the means of transmission, relevant symptoms,
and methods of containing the transmission. Along with linking political concepts such
as stealth authoritarianism (Varol 2015, 1678), this paper will highlight the measures
taken by Singapore to contain the virus, their areas and reasons of success as well as
certain factors that they overlooked which brought down their overall efficiency.

INITIAL ACTIONS TAKEN BY SINGAPORE

When the news of the disease in Wuhan broke out, Singapore’s Ministry of Health
(MOH) declared that it is aware of the news and will keep a cautionary eye on travellers
from Wuhan visiting Singapore. A task force with members of the Health ministry and
the Development ministry was formed. The first case of COVID in Singapore was
reported on January 23rd. The Singaporean government immediately began contact
tracing and announced that they would begin temperature screening and at all land and
sea checkpoints. When the fourth case of the virus was reported, the task force, on
January 27th, announced that it was modifying security measures. They were
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incorporating more rigorous border checks and initiating compulsory leave of absence
for people returning from China.

As the cases began to increase, the people began to feel the tension in the air. By the
first week of February, there were 33 cases in Singapore. People started indulging in
panic buying to bulk up their resources. Subsequently, the Trade and Industry Minister
reassured the people that there was enough stock and asked them to stop panic buying.
With the increase in time, Singapore started becoming more stringent with the measures.
Action was being taken against people who breached the rules. They had deported and
permanently banned foreign workers breaching rules and 89 work passes were cancelled
as a result of a breach of stay home notices. On March 21 st, the country announced its
first 2 deaths. The prime Minister announces a circuit breaker from April 7 th onwards
because of which everyone is urged to stay at home as much as possible and only
essential services are allowed to remain open.

The graph below describes the corona virus cases with respect to 4 different groups i.e.,
people from foreign countries who have visited Singapore, residents of the community
(Singaporean citizens), foreign workers not residing in dorms and foreign workers
residing in dorms. The x-axis displays the timeline of the cases reported and the y-axis
displays the number of cases. As depicted in the graph, the number of COVID-19 cases
were almost negligible in the month of January. It can be seen that the cases reported in
January were all of non-residents of Singapore, and thus can be categorised under the
‘imported’ group. The transmission of the virus to the natives of Singapore was seen
from February onwards. On February 7 th, The Disease Outbreak Response System
Condition (DORSCON) level was raised from yellow to orange. DORSCON is a colour
coded outline used by the government to show the current status of the disease. It also
establishes the steps needed to prevent and reduce the effect of the transmission.
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Source: Ministry of Health

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Source: Ministry of Health

The above given chart establishes a link between the Life Church and Missions and the
Grace Assembly of God clusters via serological testing, which was a first in the world.
This discovery is credited to a research team at Duke-NUS Medical School.
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UNDERSTANDING SINGAPORE’S POLITICAL SYSTEM

It is important to understand the political system of Singapore to gauge the decisions and
responses of the government in relation to the pandemic. The political system in
Singapore has been termed as a competitive authoritarian system (Levitsky and Way
2010, 34). In this type of system, formal democratic establishments exist and they are
the chief means of obtaining power but the playing field isn’t levelled. The opposition is
at a disadvantage as all chances are tilted in favour of the ruling party due to actions
taken by the latter to keep it that way. Therefore, competition is real but imbalanced and
unfair. As in the case of an authoritarian regime, in Singapore where PAP is in power, it
has a clear advantage over the opposition. Real power lies in the hands of few people
and the elite are closely linked to the rulers. In addition to this, the government levies
restrictions on political and individual liberties and freedom of press in the name of
maintaining societal order and communal harmony.

Critics of PAP and the opposition party often find themselves as a target of retribution
from the party when they speak out against the government. This is carried out in the
form of libel lawsuits, which are essentially deemed as effective tools of stealth
authoritarianism (Varol 2015, 1679). They don’t take criticism lightly. To corroborate
this, the Minister for Information and the Arts George Yeo, in 1995, had once
commented on the same asking Singaporeans to be respectful of authority and the
hierarchy in place.

In matters related to politics, Singaporeans are only allowed to talk about the matters
which the government deems fit. There are OB markers that label certain issues as
sensitive matters that cannot be discussed in public in order to maintain peace and order.
When the people flout these rules, they can expect retribution from the government.
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This makes the participation of the public in political issues very limited and reflects the
autonomy of the ruling party.

Singapore’s lack of a confrontational media and stimulating civil society has played a
role in the pandemic too. Due to the lack of focus and importance given to public
opinion and suggestions, certain aspects of the pandemic were overlooked by the
government, which could have possibly been avoided if the government had given the
media and civil societies its due standing.

Source:
CoesioNet

The above given graph depicts indicators of governance in Singapore. It displays a drop
in government effectiveness and regulatory quality, although marginally. Voice and
accountability have fallen as well, and it’s more than a marginal drop. The other
indicators have risen from its previous position in 1996. Rule of Law has increased from
90 to 94. Harsh penalties have been imposed on people who break the law.

TOP-DOWN METHOD USED BY GOVERNMENT DURING THE PANDEMIC

The top-down approach to deal with policy decisions is a clear-cut system of command
and control --- from public authority to the undertaking which concerns the individuals.
This stresses on a clear hierarchy of authority and hints of autocratic leadership.
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Due to the centralised nature of authority, as well as the absolute dominance of PAP,
passing laws and implementing them during a crisis does not pose as an issue. In fact,
such political centralisation is largely attributable to Singapore’s single party-rule.
Making amendments to existing laws and getting them passed without delay can be
carried out easily, which acts as a significant advantage during the pandemic. When new
policies are implemented, the state linked media communicates this to the people of the
country without any delay, thus keeping the people abreast with the ongoing events. For
example, when the decision to implement the wearing of masks was taken overnight, the
information was passed on swiftly to most of the Singaporean population.

When policies regarding COVID were made and implemented, such as mandating
contact tracing and testing, there have been reports by medical professionals
complaining about the manner in which instructions were given out. They were not told
the rationale behind the decisions. The medical professionals claimed that it would be
helpful to the individuals carrying out testing of the virus on people if they could
understand the rationale behind these decisions and how their work would be
contributing towards containing the transmission of the virus. This is one instance which
perfectly describes the top-down method in which the government gives out directives.

NOVEL CORONA VIRUS CASES IN SINGAPORE

New cases announced on December 15 16

Confirmed cases so far 58,341

Discharged 58,233

Still in hospital 25
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In isolation 54

Deaths 29

Source: Channel News Asia (CNA)

The above given chart lists out the number of cases confirmed in Singapore so far.
Fortunately, the number of recoveries far exceeds the number of deaths.

ELECTIONS DURING THE PANDEMIC

Elections were held in the midst of the pandemic. Basking in the glory of international
praise for handling the virus well, PAP had hopes of receiving majority of the votes. The
government slackened movement restrictions enough to continue with elections. They
believed that the people would opt for the same leaders in a panic-stricken environment
such as that of a pandemic.

The opposition in the 2020 elections stood a chance against PAP to gain more seats than
the previous years. PAP then began to resort to dirty politics to dwindle the chances of
the opposition. They resorted to personal smears and even introduced the 2019 POFMA
Bill which gave the ministers the power to strike down any online posts or information
they deemed to be false. What followed was no less than a politically charged and
disastrous election day for the incumbents. It resulted in them winning but they had
never before lost 10 seats to the opposition. PAP had received 61% nationwide popular
vote but this was their lowest since the 1965 elections.

Celebrations took place for the win of 10 seats by the opposition and supporters
gathered next to the party headquarters for the festivities. In a subsequently held press
conference, a Minister talks about the lack of social distancing at the opposition
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celebrations and warns the people about a rise in infections that can occur as a direct
result of this. This is ironic as the decision to hold elections in the midst of a pandemic
has its own implications. The consequences of events going south and resulting in a hike
of COVID cases was far bigger. But in the end, even the pandemic was not powerful
enough to topple the long-lasting PAP from its position at the top.

REASONS FOR SINGAPORE’S SUCCESS IN HANDLING THE PANDEMIC

Singapore was lauded for its management of the COVID-19 pandemic internationally.
The country’s low levels of COVID-19 mortality rate as well as its ability to trace and
isolate infected people is as a result of a cumulative process of capacity-building efforts
over time (Woo 2020, 348). Measures were put in place after they had encountered the
2003 SARS crisis and this past experience of dealing with an epidemic has taken the
form of an advantage for Singapore in the present context.

In implementing tough steps such as travel bans, health checks, quarantine and testing,
and public awareness, nations such as Singapore and South Korea acted sooner and
more effectively than many others. This greatly helped their cause and made it easier to
contain the virus.

The health care system that Singapore had in place played a huge role in treating the
COVID affected patients and handling the pandemic. Singapore’s healthcare system is
ranked among the top in the world and it is said to be ‘high quality, low cost’ (Haseltine
2013,16). When the pandemic hit, the availability of hospital beds to treat the patients as
well as separate, designated hospitals for COVID alone assisted them in operating
better. Their physical and technological infrastructure was also a factor which
contributed towards handling the pandemic.
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The government’s decision to begin contact tracing in the early stages of the pandemic
tilted the odds in their favour. Singapore had the financial means to offer free COVID-
19 testing and medical care for all its citizens. Due to this, the people turned up for
testing without hesitation as they were not being burdened by high medical expenditure,
which directly helped the government to identify the infected patients, and prevent
further spreading.

Furthermore, the authorities informed the general public about their decisions and new
policies almost on a day-to-day basis through social media to keep them abreast with the
prevention and control measures taken for COVID. The communication efforts by the
government facilitated the compliance of the citizens and ingrains trust.
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Source: Taylor & Francis Group

The above given graph depicts the variation of countries’ responses to COVID. The x-
axis represents time in months and the y-axis represents the number of health policy
decisions taken. Singapore, South Korea and China are the countries which
implemented health measures in January more briskly than the rest of the nations. In the
month of March, Singapore made relatively less health policy announcements as it had
already begun preparations from before.

DRAWBACKS IN SINGAPORE’S APPROACH TOWARDS HANDLING THE PANDEMIC AND

AREAS OVERLOOKED BY THE GOVERNMENT

The government’s excessive engrossment with the native residents of Singapore and the
lack of focus on the condition of foreign workers costed the country heavily. Their
failure to pay attention to the country’s substantial foreign worker population resulted in
a major outbreak in the dormitories in which the workers resided. Despite multiple
warnings from advocacy groups, the government refusal to listen to the people who
voice out concerns not only hints at their autocratic behaviour but also of their blatant
negligence in considering all aspects.

There was not adequate coordination between the Ministry of Health (MoH) and
Ministry of Manpower (MoM). While the MoH was responsible for handling the
COVID 19 taskforce, the MoM had to overlook the conditions of the foreign workers. If
there was any discrepancy with their living conditions which might elevate their chances
of contracting the virus, the same was supposed to be communicated to the MoH so that
the relevant policy changes could be made. However due to the lack of coordination and
communication between the two ministries, the infections increased, bringing a rise in
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the number of COVID-19 cases. It reflects a pressing deficiency in the authorities’

analytical capacities.

Some apprehensions about data privacy and absence of trust in the administration’s
ability to preserve individuals’ personal data surfaced in the media. This implies a
degree of deficiency in political capacity.

Additionally, since Singapore has a single party rule, there aren’t multiple voices in the
political sphere. This could act as a drawback due to the lack of different view points on
matters of public importance.

CONCLUSION

Initiating an early response to the COVID-19 pandemic was a decision that greatly
turned the scales in the favour of the country. Their past experience with handling an
epidemic gave them the additional advantage in figuring out tactics to handle the
pandemic forced on the world. Singapore’s quick response system as well as their
approach to handling the medical and health aspect of the citizens culminated in low
levels of fatalities.

However, the government’s inability to recognise the danger of overlooking the

unsanitary conditions of the foreign workers in dormitories has led to a two-fold
outcome in the country i.e., relatively low levels of transmission among the permanent
residents of Singapore and the spiralling cases of the virus amongst foreign workers. It
can be said that the leadership’s autocratic method of governing has contributed to this
condition.

Nevertheless, the past is where one learns a lesson and the future is where one applies it.
The takeaway from this is the need to develop a more inclusive and approachable
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system in which people can voice out their concerns and those concerns are actually
heard by the government.
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THE UNION OF ANTI-TRUST REGIME AND CORPORATE INSOLVENCY IN INDIA

- DIVYANSH GANJOO

ABSTRACT

In India Competition law is regulated by Competition Act, 2002 and The Competition
commission of India serves as its regulatory authority. Recent enactment of Insolvency
and bankruptcy code, 2016 brought about an overriding change in the opaque existence
of insolvency law with respect to previous legislations and therefore streamlined the
entire legal framework for insolvency, corporate restructurization, resolution, or
whatever the decision might be for the future of the company arrived at by the
insolvency resolution professional. This paper dwells into the union between the
Insolvency and Bankruptcy Code, 2016 and Competition Act, 2002. One of the key
questions this paper tries to answer is whether Competition regulator i.e., Competition
Commission of India (CCI) has any role during the Corporate insolvency Resolution
Process (CIRP), which is primarily regulated by Insolvency and Bankruptcy Code, 2016
and regulations revolving around the same enactment. It enumerates on provisions of
Insolvency and Bankruptcy Code, 2016 which has nursed the need for getting required
endorsements from the relevant authorities; compliances that are of utmost importance
after passing of the resolution plan. Such compliances/endorsements/approvals are
indispensible keeping in mind the specified time period, and this also includes the list of
regulatory authorities whose assent shall be sought. For that matter the paper also
expatiates on the scope of issues where such regulatory approval is necessary and
thereby classifies the regulatory bodies whose assistance and approval is critical. Such
regulatory authority also includes Competition Commission of India. One relevant
question this paper tries to attest is, whether the combinations in the form of mergers
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and amalgamations arising out of the corporate restructuring processes in the IBC
require Competition Commissions approval, as is the case for all other combinations. It
documents all the findings on how green channel approval route might be the fastest yet
the most full proof mechanism for getting these combinations approved from the
commission without facing much regulatory hurdle. Such mechanism found its
inception in the recommendation of the Competition Law review Committee. And
finally features the penal provisions attracted for gun jumping by corporate entities
under Green Channel route.

COMPETITION LAW: A BRIEF HISTORY

As a matter of common parlance, and after due consideration of the principles of global
market, competition laws are based on the capitalist economic principle that competition
is a desirable and a healthy element of the free market. But to ensure that healthy market
practices are carried out for the benefit of all the players in the free market economy, a
strong competition law must be sought for, which must not only prevent businesses
from engaging in practices that are harmful to competition and consumer welfare but
also promotes blooming and healthy competition in the economic ecosystem.

In India pursuit of liberalization, globalization and privatization in 1990’s saw the

introduction of a New Economic Policy which resulted in removal of arbitrary
hindrances over foreign entity’s participation in the national economic market. It was
considered to be a step forward in India’s commitment towards facing competition; not
just from within the country but also from other international players too. And this event
is the inception of a competition law regime in India. The intent of enacting a new law
on competition policy was announced by the Union Finance Minister in his Budget
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Speech1 (1999-2000) on 27 February, 1999, following which a High Level Committee2

consisting of experts under the Chairmanship of Shri S.V.S. Raghavan was set up to
examine the provisions of Monopolies Restrictive Trade Practices Act, 1969, and
propose modern competition law in view of liberalization of Indian economy. And the
committee3 demarcated two elements of such a policy. The first aspect would involve
putting in place a set of policies that enhance competition in national and local markets.
This would include a relaxed foreign investment and ownership deregulation, liberalized
trade policy, and economic deregulation. The second would be an elaborate competition
law legislation designed to prevent anti-competitive business practices and unnecessary
government intervention.

The Competition Act, 20024 in its preamble has given a brief on the nature of the act,
its need and its main aim. It states that the Competition Act is-

“an Act to provide, keeping in view of the economic development of the country, for the
establishment of a Commission to prevent practices having adverse effect on
competition, to promote and sustain competition in markets, to protect the interests of
consumers and to ensure freedom of trade carried on by other participants in markets, in
India, and for matters connected therewith or incidental thereto.”

1
Nine member High Level Committee constituted on 25 October 1999 submitted its Report on 22 May
2000. Volume-I of the Report is on Competition Policy and Law; Volume-II contains the concept Bill on
Competition policy christened as ‘Indian Competition Act –Draft Bill.
2
The Expert Group was constituted as an off-shoot of the first WTO Ministerial Conference held at
Singapore in December 1996 for implementation of WTO agreement which submitted its Report in
January, 1999. The Group addressed issues related to competition: viz. (i) Mergers, Amalgamations,
,Acquisitions and Take-overs (ii) Intellectual Property Rights (iii) Foreign Investment (iv)Anti-Dumping
Measures, Subsidies and Countervailing Measures and Safeguard Measures (v) State Monopolies,
Exclusive Rights and Regulator Policies (vi) Sanitary and Phytosanitary Measures (vii) Technical Barriers
to Trade (viii) Professional Services (ix) Government Procurement (x) WTO Provisions.
3
Report of the High Level Committee on Competition Policy and Law (Chairman S.V.S. Raghavan)
2000.
4
The following Act of Parliament received the assent of the President on the 13th January, 2003.
174 Jus Carta Edition 3 ISBN 978-81-951020-1-3

For this purpose, the bill comprehensively provides for setting up of Competition
Commission of India (CCI), a competition law authority christened as for the
enforcement and administration of competition law in India. Being the sole enforcement
authority and like other Judicial and Quasi- Judicial institutions the CCI will have
perpetual succession. It would mainly comprise of a whole time Chairperson and not
less than two and not more than ten whole time members. The pre-requisite
qualifications for both Chairperson and Members are same whereas their age, salary and
status are different in the Bill. The age of Chairperson is seventy years and the salary of
that of a Judge of the Supreme Court whereas the age of the Members of CCI is sixty-
five years and salary of that of a Judge of a High Court. Once the Competition
Commission of India (“CCI”) – the quasi-judicial body, entrusted with the task of
ensuring compliance under the Competition Act in India – is satisfied of the existence of
an anti-competitive agreement, or an abuse of dominant position, it may give any of the
orders that it has been empowered with to pass under the said Act.

INSOLVENCY LAWS’ RELEVANCE IN INDIA

Insolvency is defined as a term for when an organization or individual can no longer

meet its financial commitments to its lenders as debts become due. Insolvency can arise
from an increase in expenses, poor cash management, or a reduction in cash inflow. In
general it can be defined (especially for a company) as a general inability or the
condition of not having sufficient liquidity or assets or money to pay off debts, buy
goods, etc., or on the occasion when this happens.

Between early 2000's and 2008 before recession hit the Indian economy, it was in what
you call in economic terms the “boom phase”. During this period banks especially
public sector banks as a matter of government policy lent extensively to body corporates
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and major companies in the name of growth and expansion. However, the profits of the
corporates dwindled due to slowdown in the global economy, ban on mining projects,
and delay in environmental related approvals and other aspects of red-tapism which may
affect the health and prosperity of a robust economy. The slowdown primarily affected
the iron, power, and steel sector, increasing the raw material availability and raw
material price volatility. This in turn negatively impacted the ability of these companies
to pay back their loans and is one of the fundamental reasons behind increase in Non-
Performing Assets (NPA) in India.

There was no single law in India that deals with insolvency and bankruptcy. As per the
previous legal regulatory framework, provisions relating to insolvency and bankruptcy
could be found in the Companies Act, 2013, the Securitization and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002, and the
Recovery of Debt Due to Banks and Financial Institutions Act, 1993, Sick
Industrial Companies (Special Provisions) Act, 1985. Liquidation of companies
through this was handled by the High Courts. Therefore, Individual Bankruptcy and
Insolvency was dealt with by the Courts. One key factor that held back the credit market
was the mechanism for resolving insolvency, or the failure on the part of a borrower
(debtor) to make good on repayment promises to the lender (creditor). The existing laws
had several problems and were enforced poorly. The previous framework for insolvency
and bankruptcy was inadequate, ineffective and resulted in undue delays in resolution.
Financial sector reforms had given a transformation of the equity, currency and
commodity markets. However, the credit markets continued to malfunction despite
considerable policy efforts5.

Considering this situation and subsequent to getting a proper legislative mark on

insolvency law, there were great number of deliberations between government and key
5
Banerji et al., 2012; Sane and Thomas, 2012; Rajan, 2008; Percy Mistry Committee Report, 2007
176 Jus Carta Edition 3 ISBN 978-81-951020-1-3

players including various experts/representatives of Statutory/Regulatory/Government

Bodies and Research Bodies/Trade Unions, organizations representing Industry and
Professional Bodies, stakeholders, Ministry of Labour & Employment, Department of
Public Enterprises and Department of Financial Services. Various committees were
formed and one such committee was Bankruptcy Law Reforms Committee of
November, 20156. And in accordance to the recommendations of the said committee
Insolvency and Bankruptcy Code, 2016 was passed. The Insolvency and Bankruptcy
Code, 20167 in its preamble has given a brief on the nature of the act, its need and its
main aim. It has been explicated as an Act to not just consolidate and amend the laws
relating to reorganization and insolvency resolution of corporate persons, but also for
the partnership firms and individuals. Such must be carried out in a time bound manner
to promote entrepreneurship, for maximization of value of assets of such persons,
availability of credit and balance the interests of all the stakeholders including alteration
in the order of priority of payment of Government dues and to establish an Insolvency
and Bankruptcy Board of India, and for matters connected therewith or incidental to the
Act.8

It has been mentioned in Statement of Objects and Reasons that the Code seeks to
provide an effective legal framework for timely resolution of insolvency and bankruptcy
which would support development of credit markets and encourage entrepreneurship.
The Insolvency and Bankruptcy Code 2016 creates a framework for time—bound
insolvency resolution of companies and individuals. The insolvency resolution processes
are to be completed within 180 days. If the insolvency resolution is not completed in
time, the assets of the borrowers may be sold to repay creditors. Under the Code,

6
Government of India, “Report of the Joint Committee on Insolvency and Bankruptcy Code, 2015 “(July
2017).
7
The following Act of Parliament received the assent of the President on the 28 th May, 2016.
8
The Insolvency and Bankruptcy Code, 2016,No. 31, Acts of Parliament, 2016 (India)
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resolution will be conducted by licensed insolvency professionals. These Insolvency

professionals will be members of insolvency professional agencies. Information
professional agencies will also furnish performance bonds equal to the assets of a
company under insolvency resolution. The Code also envisages Information utilities to
collect collate and disseminate financial information to facilitate insolvency resolution.
Insolvency resolution for companies will be adjudicated upon by the National Company
Law Tribunal. The Debt Recovery Tribunal will adjudicate insolvency resolution for
individuals and partnership firms. The Insolvency and Bankruptcy Board of India has
been set up to regulate functioning of Insolvency professionals, Insolvency Professional
agencies and Information Utilities. It would facilitate more investments leading to
higher economic growth and development, and improve Ease of Doing Business.

Therefore the above stated act became a one stop solution not just for resolving
insolvencies but it presented a better alternative against insolvency which not just
presented a long process for resolution of such issues under the previous laws but also
offered economically a more viable arrangement. A strong insolvency law had been
long overdue in India which not just provided a strong policy framework but also
provided an effective remedy for debt recovery, where not just the cost is minimalized
but the time incurred in attainment of the objective is also minimized and the entire
liquidation process gets smoother. This law does not just promote the interest of the
investors but also promotes ease of doing business.

CCI’S ROLE IN CORPORATE INSOLVENCY RESOLUTION PROCESS

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But one of the predominant question to be answered is whether Competition regulator

i.e., Competition Commission of India (CCI) should have any role during the Corporate
insolvency Resolution Process (CIRP), and such a concern has been taken up by the
advocates of ‘failing firm defense’ that it is just another hurdle for foreign investors who
may be interested in either purchasing the assets or Indian companies in certain crucial
sectors or for procuring supply chains, marketing networks etc.

In order to comprehend this we need to have closer introspection of Section 5,

Insolvency and bankruptcy Code, 2016; Section 5 which is the ‘definition clause’ of
the said act in its Subsection (26)9 states –

“Resolution plan” means a plan proposed by any person for insolvency resolution of
the corporate debtor as a going concern in accordance with Part II.’

According to Regulation 37(c)10 of CIRP Regulations 11

resolution plan would
include restructuring of corporate debtor and includes the substantial acquisition of
shares of the corporate debtor, or the merger or consolidation of the corporate debtor
with one or more persons.

9
The Insolvency and Bankruptcy Code, 2016,No. 31, Acts of Parliament, 2016 (India)
10
Substituted Notification No. IBBI/2017-18/GN/REG024, dated 6th February, 2018 (w.e.f. 06-02-2018).
Prior to this substitution, Regulation 37, stood as under:- “(37) (1) A resolution plan may provide for the
measures required for implementing it, including but not limited to the following- (a) transfer of all or part
of the assets of the corporate debtor to one or more persons; (b) sale of all or part of the assets whether
subject to any security interest or not; (c) the substantial acquisition of shares of the corporate debtor, or
the merger or consolidation of the corporate debtor with one or more persons; (d) satisfaction or
modification of any security interest; (e) curing or waiving of any breach of the terms of any debt due
from the corporate debtor; (f) reduction in the amount payable to the creditors; (g) extension of a maturity
date or a change in interest rate or other terms of a debt due from the corporate debtor; (h) amendment of
the constitutional documents of the corporate debtor; (i) issuance of securities of the corporate debtor, for
cash, property, securities, or in exchange for claims or interests, or other appropriate purpose; and (j)
obtaining necessary approvals from the Central and State Governments and other authorities.”
11
The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons)
Regulations, 2016
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It is also understood by the virtue of Section 6 of Competition Act, 2002 which deals
with the regulations of the combinations, that CCI is empowered to act as a regulatory
body over all mergers, acquisitions or amalgamations (referred to as Combinations in
the competition act) which ex ante empowers CCI to examine such combinations arising
out of the resolution process under IBC. And conventionally CCI grants such approvals
in the shortest time possible. 12

But obtain such approval from Competition Commission under the Competition Act,
2002 prior to the approval of the resolution plan by the Committee of Creditors is a
directory measure not a mandatory one. This mean, that rather than a strict compliance
to such a procedure, a substantial compliance of the provision Section 31(4) of
Insolvency and Bankruptcy Code, 2016 is suffice to achieve the objective behind which
the abovementioned rule was enacted in the first place. Section 31 of Insolvency and
Bankruptcy Code, 2016 in an appropriate manner provides for resolution plan’s
approval. Sub-section 413 of the said section provides that within one year of getting the
resolution plan approved, all the approvals sought for or required under any other law
shall be done with and said procedural requirements are must. The proviso to this
subsection14 reads:

“Provided that where the resolution plan contains a provision for combination, as
referred to in section 5 of the Competition Act, 2002, the resolution applicant shall
obtain the approval of the Competition Commission of India under that Act prior to the
approval of such resolution plan by the committee of creditors.”

12
PTI, “CCI gives nod to Adani Wilmar's acquisition of Ruchi Soya”, The Economic Times, August 14
2018, available at: https://brandequity.economictimes.indiatimes.com/news/business-of-brands/cci-gives-
nod-to-adani-wilmars-acquisition-of-ruchi-soya/65395527.
13
Ins. by Act. No. 26 of 2018, sec. 24 (w.e.f. 6-6-2018)
14
Ins. by Act No. 26 of 2018, The Insolvency And Bankruptcy Code(Second amendment) Act, 2018
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After thorough reading of this subsection along with the proviso, it can be understood
that for successful resolution, applicant is responsible and required to obtain all the
necessary approvals that must be sought for from the Competition commission of India
within one year of such resolution plan (one year from its date of approval), and a prior
approval is needed only in cases of combination. This also means that the prospective
buyers of insolvent companies or their distressed assets while making their
bids/resolution applications should thereby file the notice before CCI hand in hand with
the filing of the resolution plan in order to avoid delay in getting CCI’s approval for the
same.

FAILING FIRM DEFENSE’S (FFD) MANTLE IN INSOLVENCY PROCEEDINGS

One of the key duties of CCI is determination of the fact whether a combination would
have an adverse effect on the market or not. Section 20 of Competition Act, 2002 calls
for inquiry into combination by commission, and it can be understood that sub-section
4, through its plain reading, determines whether a combination would have the effect or
is likely to have an appreciable adverse effect on competition in the relevant market. For
the propose of subsection 4 it is purported that the Commission shall have due regard to
all or any of the following factors, namely: — extent of barriers to entry into the
market; actual and potential level of competition through imports in the market; level of
combination in the market; degree of countervailing power in the market; Likelihood
that the combination would result in the parties to the combination being able to
significantly and sustainably increase prices or profit margins; extent to which
substitutes are available or arc likely to be available in the market; extent of effective
competition likely to sustain in a market; market share, in the relevant market, of the
persons or enterprise in a combination, individually and as a combination; likelihood
that the combination would result in the removal of a vigorous and effective competitor
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or competitors in the market; nature and extent of vertical integration in the market;
possibility of a failing business; nature and extent of innovation; Relative advantage, by
way of the contribution to the economic development, by any combination having or
likely to have appreciable adverse effect on competition; whether the benefits of the
combination outweigh the adverse impact of the combination, if any.

It dictates the factors which are to be taken into account for the purpose of determining
whether a combination would have the effect or is likely to have an appreciable adverse
effect on competition in the relevant market and one such factor is “possibility of a
failing business”15.

This brings up the Failing Firm Defense (FFD). It means that the firm which is being
taken over through a merger or an acquisition, or is in the due process of corporate
restructuration in case of an insolvency proceedings, is earning such negative profits and
is losing its market share to such an extent that it is most likely to go out of business. It
is also argued that since the firm getting acquired is most likely to exit the market, the
acquiring firm is not lessening the competition. Prerequisites to such a defense are that
there must be a business failure and normalcy to the state of affairs must be in doubt.
Also, the firm must have reached to a point where it can no longer pay off its debts and
has also exhausted all its alternatives for corporate rescue. Therefore, for a combination
arising out of IBC, the Failing Firm Defense has to be taken up and established before
the relevant adjudicating authority i.e. Competition Commission of India. This
demonstrates that Section 20 Subsection (4) clause (k) would serve as an absolute
factor for automatic approval of combinations arising out of the debt restructuration
resolution process given in Insolvency and Bankruptcy Code, 2016. The objectivity of
these sections overshadows and overpowers the subjectivity of the circumstances these

15
Section 20, sub-section (4), clause (k) of Competition Act, 2002
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corporate houses might have to deal with and thereby proves to be an effective
mechanism.

GREEN CHANNEL ROUTE AND CORPORATE RESTRUCTURATION

For further facilitation of the said processes “The Competition Law Review
Committee”16 recommended amendments to the existing Competition Act. One of the
changes recommended by the committee was with regard to Green channel
Notifications. There has been a growing international consensus in recent times, that
mergers are a way for companies to acquire welfare enhancing efficacies and compete.
Delaying a merger, therefore, does not only impose a cost on merging parties, but
society as well. More so, certain market players have argued, that in a developing
economy like India merger control would do more harm than good. For facilitation of
these concerns, Green Channel Route was bought into inception, for combinations that
are unlikely to have an appreciable adverse effect on the competition of the country.
Based on self assessment criteria and pre- filing consultation with CCI an enterprise
may ascertain whether a particular combination will be eligible for Green channel route.
On how certain combinations beyond the required certain monetary threshold requires
CCI’s approval. And once it’s established that those combinations would have no
appreciable adverse effect on the competition in market, the committee recommends an
automatic “green channel route for them.” This would include cases of combinations
arising out of Insolvency and bankruptcy code. It will be a much speedier recovery
mechanism, despite the fact that it would be subject to certain conditions; it will provide
for speedy approval of those combinations. The committee also recommended that it
shall be the de facto route for merger notifications and approval in most cases. CCI

16
Chair: Mr. Injeti Srinivas, submitted its report to the Ministry of Corporate Affairs on July 26, 2019.
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characterizes Green channel route as a part of its ongoing and regular efforts to make
Merger and Acquisitions fillings approval faster, therefore it’s an automatic system of
approval for combinations.17 It requires that the combination is deemed to have been
approved upon it being filed in the required or prescribed format. This automated system
is to significantly reduce time, energy and effort. Such recommendations were
introduced via making amendment to the original the Competition Commission of
India (Procedure in regard to the transaction of business relating to combinations)
Regulations, 201118 vide introduction of regulation 5A vide amendment dated 13th
August 2019.19 It provides Notice for approval of combinations under Green channel,
on how for category of combinations mentioned in Schedule III, the parties to such a
combination can opt to submit Form 1 in such a format as prescribed, the proposed
combination shall automatically be deemed to be approved. The said procedure of self
assessment is the key to the success of the green channel route. And the conditions for
such have been placed in the Schedule III. First, that the parties to the combination do
not produce/provide similar or identical or substitutable products or services. Second,
that the parties to the combination are not engaged in any activity relating to production,
supply, distribution, storage, sale and service or trade in products or provision of
services which are at different stage/ level of production. And third, that the parties to
the combination are not engaged in any activity relating to production, supply,
distribution, storage, sale and service or trade in products or provision of service(s)
which are complementary to each other. Therefore where in the transactions, theirs is a
vertical or horizontal or even complimentary overlap, such combinations would not be
able to avail the benefits of green channel route.

17
Press Release No. 8/2019-20, available at:
https://www.cci.gov.in/sites/default/files/press_release/PR82019-20.pdf
18
(No.3 of 2011) passed on the 11th day of May, 2011.
19
The Competition Commission of India (Procedure in regard to the transaction of business relating to
combinations) Amendment Regulations, 2019.
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And there’s a safeguard mechanism against misuse of such green channel route, i.e. if
the CCI comes to the understanding that such a combination is outside the counters of
Schedule III, the approval so granted shall be considered void ab intio. This would also
most likely attract proceedings from the CCI for ‘gun Jumping’ under Section 43A of
the act which gives power to impose penalty for non-furnishing of information on
combinations and states – “If any person or enterprise who fails to give notice to the
Commission under sub- section (2) of section 6, the Commission shall impose on such
person or enterprise a penalty which may extend to one percent, of the total turnover or
the assets, whichever is higher, of such a combination”. It would also attract the
provisions of Section 44 which elucidates the penalty for making false statement or
omission to furnish material information. By the language of the section it is made clear
that it applies to any individual/person that may be a party to a combination, with
respect to-

(a) Making of a statement which is false in any material particular, or knowing it to be

false.
(b) Omitting to state any material particular knowing it to be material.

Such an individual/person is also made liable to a penalty which although shall not be
less than rupees fifty lakhs but it may extend to rupees one crore, as may be determined
by the Commission. Adequately, under section 20 (1) of the act, the Competition
Commission of India is empowered to assess whether a combination has caused an
appreciable adverse effect on competition of India up to one year of the date the
combination takes effect. And it assess whether it is an instance of filing of
incomplete/wrong information, omission to file relevant information, or filing under
wrong route.
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But an opportunity to be heard would nevertheless be provided to the parties by the

competition commission before it finally arrives at a finding or a verdict in this regard.
Green channel appears to be well in line with the government’s policy of Ease of Doing
Business in India, and most definitely neither hinders nor compromises the Competition
Commission of India’s pre existing mandate with regard to merger regulation and other
forms of combinations arising from it as such.

CONCLUSION

Market economies are governed by three fundamental principles. First, freedom of

entry; second, freedom to stay and enjoy a healthy competition; and third, freedom of
exit. The Companies Act, 2013 ensures freedom of entry. The Competition act, 2002
ensures healthy competition. And finally, Insolvency and bankruptcy Code, 2016 makes
provision for freedom of exit.

A liberal competition law under IBC revamp has been planned by the ministry of
Corporate affairs.20 India now is looking for introduction of a therefore more liberal
competition law to facilitate such mergers and acquisitions arising out of IBC. The
existing procedure of Green channel review, for combinations arising out of IBC is
multifaceted and streamlines the process in numerous ways with its time effective and
cost effective mechanisms/procedures.

It is important to note that some find the gun-jumping provisions against the defaulters
harsh and mandatorily excessive. If in accordance to the act, if the CCI arrives at the
conclusion that the information provided in the notification is incorrect or fictitious then

20
Karunjit Singh and Deepshikha Sikarwar,“ A liberal Competition law in works to facilitate M&As” The
Economic Times, May 14, 2019, available at :
https://economictimes.indiatimes.com/news/economy/policy/a-liberal-competition-law-in-the-works-to-
facilitate-mas/articleshow/69316407.cms?from=mdr.
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the transaction becomes void in the eyes of the commission or in its nature. The parties
hence are required to file a new notification for the eligibility of the green channel route.
In the cases where the parties have completed the transaction and then found
information incorrect by the commission, they would have penalized with the huge
amount given under the Competition Act, 2002 and would be considered guilty for gun-
jumping.

Hitherto, it simultaneously ensures that prospective buyers of distressed assets or

insolvent companies, while making their bids or resolution application also solicit CCI’s
approval apropos combination, hand in hand getting their resolution plans approved via
NCLT. This establishes and renders sufficient regulatory flexibility and leeway for the
firms, companies or any other legal entities that are the prospective buyers of the said
distressed assets or insolvent companies to chalk out their plans and collaborate with
law and regulatory bodies for getting their bids approved, or their combinations
mandated.

We have established how it is for best corporate interests in incentivizing acquisitions

arising out of IBC using the ‘Green channel Route’ for getting CCI’s approval of such
combinations. It is pertinent to understand and remember that the route, for the purpose
that it was engendered is still in its budding stage. As many more companies line up
before CCI to get their approvals in line of this route, there will be a greater clarity in
the near future on how such provisions are being interpreted by CCI.

The free market rule of a firms entry and exist is therefore consolidated by such a
procedure, because it facilitates exist of the firm in times of financial distress and helps
them foresee happening of such an event in the future and making provisions,
safeguards or Standard Operating Procedures (SOPs) for the same keeping in mind the
law which exists for such an event. This in turn would demonstrate the practicality or
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advantageousness of the whole procedure beyond a doubt for the firms already existing
in the market, as it creates a strategic incentive for the pre-existing firms(acquiring firms
in this case) which are already well off by the virtue of their profits and comfortable
positioning in the market, because the assets of the failing firm can be used in terms of
their goodwill, production units and other intangible/ tangible assets which might be of
the benefit to the acquiring firm. Or they can simply let the failing firm exit from the
market to reduce the competition. Needless to say, it serves to be a lucrative position for
the acquiring party without any consequent doubt. The ultimate objective must be for
India to have an efficient bankruptcy and insolvency framework. This would involve
navigating the legislative and administrative track, and thereby creating conducive
framework. This brings to mind the annual budget speech (for the financial year 2016-
2017) of Finance minister Sh. Arun Jaitly as he was then. He had announced:

“A systemic vacuum exists with regard to bankruptcy situations in financial firms. A

comprehensive Code on Resolution of Financial Firms will be introduced as a Bill in the
Parliament during 2016-17. This Code will provide a specialized resolution mechanism
to deal with bankruptcy situations in banks, insurance companies and financial sector
entities. This Code, together with the Insolvency and Bankruptcy Code, when enacted,
will provide a comprehensive resolution mechanism for our economy.”21

21
Budget 2016-2017, Arun Jaitley, Minister of Finance, February 29, 2016, available at :
https://www.indiabudget.gov.in/doc/bspeech/bs201617.pdf
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