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Author: Editorial Team
21 Dec 2020 Editorial Team Blogs
EVOLUTION OF ONLINE FANTASY SPORTS GAMING IN INDIA
Ritvik Chouhan, a 2nd year student of Institute of Law, Nirma University, Ahmedabad, discuses the evolution of online fantasy sports gaming in India.
With advanced technology, fantasy sports activity is becoming an intrinsic part of Indian society from the last decade. The participation opportunity and engagement in the landscape of online gaming is increasing day by day and will soon surpass 100 million users.[1] The growing popularity brings more problems for the fantasy leagues to not fall within the ambit of gambling. The legality of online fantasy sports was questioned and the debate of skill v. chance was brought up in the Supreme Court.[2]
An attempt has been made here to define fantasy sports and the present debate between the games of 'chance' and games of 'skill'. The next part will deal with the general laws of India that are specifically related to online gaming. I have concluded by elaborating on some landmark cases, which are significant in defining fantasy sports and their legality in the present time.
What are Fantasy Sports?
Online Fantasy Sports,[3]is an online prediction game where participants assemble a team virtually using real-life players. They have to do so by using the points given to them. They are supposed to pay the token money for participating in the contests.
The participants are considered to be the manager of the team, as they have the right to select players, make changes and substitute in the virtual team. They earn points based on the players' real-life performance during the course of the match. Participants play against each other and later are ranked based on the score sheet and performance of their selected player and receive awards accordingly from the pool.
Predominance: Skill or Chance
Evidently, online fantasy sports are emerging all around the world. Courts of different countries have a different perspective, thus the 'Dominant Factor Test',[4] is considered to be the best approach for categorising between chance and skill. This test helps in determining the required assessment and also whether chance or skill is the dominating factor in deciding the result of the game.
However, this dominant factor is always inclined towards skill. In the landmark judgement of Humphrey v. Viacom,[5] the plaintiffs questioned the legality of an online fantasy sports game and claimed that participants constitute a 'wager' and therefore, is a game of 'predominance of chance'. In arguendo, the court held that fantasy sports are 'skill games', depending on the skills of the participant, experience in choosing players, adding and removing players throughout the season, and determining the player who will be in playing and who will be on the bench.
Further, the evidence presented in the expert study prepared by Prof. Zvi Gilula revealed that even mathematical research presents that online gaming's are 'skill-based games'.[6] The three premises were made for the fantasy sports game:
(a) Performance of a player affect the result directly,
(b) Statistics tell how good a skilled and well-informed person does better than the rest,
(c) A player is more likely to win by executing skills and analysis of the game acquired by them.
Conclusively, when a skilled player with his/her knowledge of the sport, competes against an unskilled one, the former is likely to come out victorious 'most' of the time. Here, the term 'most' is inclined towards the predominance of skill and not a chance.
Contextualising Fantasy Sports Laws in India
The laws of India always makes a difference between skill and chance and set down a total ban on participating and offering of the game of chance for money, on the other hand, allows game participation in games of skill. India has seen a constant debate over games of 'chance' and games of 'skill' from the last decade. Even some state laws differ in respect to games of skill and chance with differential treatment,[7] with the former permitted and the latter prohibited.
The Matrix of Current Legal Scenario of India
The two main statutes that govern gaming in India are Public Gambling Act, 1867 (hereafter 'PGA') and the Prize Competitions Act, 1955 (hereafter 'PCA'). However, neither of them talks about online gaming, due to which there is always a tussle between chance and skill in India. While PCA is any prize competition, in which prizes depend on solving a puzzle are given. It also sets down restrictions on organising tournaments for prizes. On the other hand, the provision of PGA will not apply to a 'game of mere skill' if it comes under the ambit of Section 12 of the PGA.[8] Thus, differentiating between the game of "mere skill" and the game of "chance".
Although, there is no substantial definition of 'mere skill', the Apex Court, in the case of State of Bombay v. R.M.D. Chamarbaugwala,[9] interpreted the word as 'preponderantly of skill'. Though there is a presence of an element of chance, the competition needs a 'substantial degree' of skill to play.
Even the Law Commission of India in his report,[10] recommended that online sports betting is majorly determined by the knowledge of the player and his selection of the team. This report contends that this is a blatantly implausible claim because it is clearly identifiable the difference between the average players and the top performers' points; hence, it cannot be entirely validated by 'chance'. Hence, the result of games of 'skill' is determined by the expertise and knowledge of the players and cannot be considered as gambling, therefore, is protected under the Constitution of India.
Landmark Judgements of Indian Judiciary
The two primary cases that address the 'skill and chance' are State of Andhra Pradesh v. K. Satyanarayana (Rummy case),[11] and K.R. Lakshmanan v. State of Tamil Nadu (Horse–racing case).[12] In both of the cases, the court agreed that no game alone would be a game of sheer talent and nearly all games contain an aspect of chance, however, negligibly small. In such cases, the 'dominant factor test' is commonly accepted by Indian courts, which involves the evaluation of dominant factors from chance or skill to decide the outcome of the game.
The landmark judgement – Varun Gumber Case
This was the first case in Indian history that address online fantasy gaming (Dream 11) and its legality. The 2017 case of Punjab & Haryana High Court Shri Varun Gumber v.Union Territory of Chandigarh & Ors.,[13] ruled, inter alia, that the fantasy sports games required the same level of skill, judgment and discretion as in case of the horse racing. In the abovementioned case plaintiff lost INR 50,000 while playing on Dream 11.com and contended it to be a 'wager' and against PGA. The Court while considering the 'predominance test' held that there was a predominance influence of the element of skill on the result of the game. The court considered the following format of the game:
A player needs to make a team consisting of real-life players and sports teams.
Online fantasy gaming needs to restrict the selection of players by choosing players from both teams.
No player can change his/her team after the real-life match has started.
The player needs to carefully select captain and vice-captain, while former x2 the points and latter x1.5 respectively.
The court finally observed that it needs prior knowledge of the player's performance, statistics, drafting skills to make a team. Like, horse racing in which factors like fitness, skill and speed of the horse are some of the main factors to place a bet. Similarly, in fantasy sports, prior knowledge of a player makes it inclined towards 'games of mere skill' under PGA and didn't constitute gambling. Consequently, the Court also recognised the offering of fantasy sports games as a legitimate business activity protected under Article 19(1)(g) of the Indian Constitution.[14]
The above discussion highlights how online fantasy games are 'predominantly skilled' games as they depend on the skills of the player. However, the gameplay of every fantasy sport is ought to be analysed on a case-to-case basis by the aforementioned principles.
Perhaps, fantasy gaming would have many other benefits apart from those stated in the findings of the Report of the Law Commission. First, as fantasy sports are already in play, prohibiting them will drive it further underground. Secondly, it will exclude bookies from the market and remove black money from the country by promoting fantasy sports. Third, it will become an important source of revenue if allowed and regulated by every state. Finally, an evident additional advantage is the growth of employment. Therefore, I propose that online fantasy gaming should be permitted as the result majorly depends upon the skill and not on chance.
[1] Prithvi Singh, How fantasy gaming is booming in India, Deccan Chronicle, (April. 12, 2019), https://www.deccanchronicle.com/technology/in-other-news/120419/how-fantasy-gaming-is-booming-in-india.html.
[2] Soumitra Bose, After Rummy, IPL 2020 Title Sponsors Dream 11 Face Fresh Challenge In Supreme Court, Outlook (September. 04, 2020), https://www.outlookindia.com/website/story/sports-news-ipl-2020-title-sponsors-dream11-face-fresh-challenge-in-supreme-court/359834.
[3] Chris Isidore, Fantasy sports: What is it, anyway?, CNN Money (October. 06, 2015), https://money.cnn.com/2015/10/06/news/companies/fantasy-sports-101/index.html.
[4] Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 87 (Nev. 1961).
[5] Humphrey v. Viacom, 2007 BL 38423 (D.N.J. 2007).
[6] FanDuel v. Schneiderman, N.Y. Sup. Ct., 161691/2015.
[7] Deloitte, Skill Gaming in India The changing landscape, 5, (2018), https://www2.deloitte.com/content/dam/Deloitte/in/Documents/risk/in-risk-SkillGamingSurvey-noexp.pdf.
[8] The Public Gambling Act, 1867, §12.
[9] The State of Bombay v. R.M.D. Chamarbaugwala, 1957 AIR 699.
[10] Law Commission of India, Legal Framework: Gambling and Sports Betting Including in Cricket in India, Report No.276, 22, (July 2018), https://lawcommissionofindia.nic.in/reports/Report276.pdf.
[11] State of Andhra Pradesh v. K. Satyanarayana, 1968 AIR 825.
[12] K.R. Lakshmanan v. State of Tamil Nadu, 1996 AIR 1153.
[13] Shri Varun Gumber v. Union Territory of Chandigarh & Ors., CWP No. 7559 of 2017.
[14] Akshat Agarwal and Vivan Sharan, Fantasy sports like Dream11 are a good candidate for self-regulation, The Print, (November. 02, 2020), https://theprint.in/opinion/fantasy-sports-like-dream11-is-a-good-candidate-for-self-regulation/534104/.
21 Dec 2020 21 Dec 2020 Editorial Team Blogs
Media Trials: an act of super judiciary
Utkarshani Srivastava, a 2nd year student of Hidayatullah National Law University, critically analyzes the recent trend of media trial and it's various repercussions.
Media- referred to as the fourth estate in our democracy, meaning that it is as important as the other three organs of the state i.e. Legislature, Executive and Judiciary. Participative media is contemplated as the 'cornerstone' of our democracy. It is the pillar of a democratic setup, as, through the medium of mass media, ideas across societies are communicated; these ideas are the basis of participation and debate. Media acts as a facilitator and also an expediter on numerous matters including those affecting the collective conscience of the society.
Reincarnated as public court, media forms public opinion by separately starting investigations. It's obvious that to run the democracy very smoothly, a free and healthy media functionary is required. But keeping in to the demand of current situation, media is significantly involved when justice is totally denied or delayed. Though media helps in social and political changes but sometimes it's also seen that media is inclined into the money making business.[1] That is when media tends to incline towards increasing their TRP to earn more money by hosting media trials and declaring the judgment on the basis of their investigation. This article delves into the increased penetration of media in trials, resulting in contempt of court by hindering the right to fair trial and sometimes even influencing the paths of the trials and prejudicing the trials. The author has also suggested a few reforms to set a limit to the exploitation of the freedom of expression given to the media.
MEDIA TRIALS
On its inception, media was bestowed with a lot of freedom so that unbiased, thorough and fair reporting could be done on all the matters. Though there is no explicit guarantee of freedom related to media in part III of the constitution, but this freedom is implied in Article 19 (1) (a) of the Constitution of India that guarantees "freedom of speech and expression". Whereas Article 19 (2) sets out the grounds on which limits can be imposed upon the "freedom of expression". Those limit flow from the right to privacy, right to reputation, the law of "contempt of court" etc. Freedom of press is the heart of social and political intercourse. It is the primary duty of the court to uphold the freedom of press and invalidate all laws and administrative actions which interfere with it contrary to the constitutional mandate.
But to grab the attention of the viewers and maintain a high TRP in this competitive industry, media reports are often turning to distortion of facts and sensationalisation. The problem finds its worst manifestation when the media extensively covers sub-judice matters by publishing information and opinions that are clearly prejudicial to the interests of the parties involved in litigation pending before the Courts. The media, in reporting of the murder of Aarushi Talwar, forestalled the court and reported that her father Dr. Rajesh Talwar, and mother Nupur Talwar were involved in her murder, it was later declared by the CBI that Dr. Rajesh Talwar and Nupur Talwar were not the killers[2].
In recent times there have been numerous instances where the media has conducted trial of an accused and has passed the verdict even before the courts have passed their judgment. As currently happening in the case of late Bollywood star Sushant Singh Rajput, though the CBI is investigating the case, news-anchors are conducting their own parallel proceedings from the comfort of their studios and impeding a fair trial while making mockery of the criminal justice system, which rests on the presumption of innocence until proven guilty.
Something that was started to show to the public at large the truth about cases, has now become a practice interfering dangerously with the justice delivery system. This highlights the enormous need of what is called 'responsible journalism'[3].
RIGHT TO FREE TRIAL
The right to get a fair trial is a fundamental right according to the Indian Constitutions. "Fair trial" includes fair and proper opportunities allowed by law to prove oneself innocent. As enshrined in article 21 of the constitution of India, right to fair trial is a part of life and personal liberty. A fair trial requires bias or discrimination to be removed for or against the accused, the witnesses or the proceeding of the case.[4] But due to the cutthroat competition in the Media industry, media houses are driven to stay relevant by taking up cases in their hand. When these media houses take up cases in their hands they use such language when reporting a problem and prejudices the public as a result of the characterization of the accused it amounts to undue interference with the administration of justice and hence dodges the principle of innocence until proven guilty. But no situation must arise that the publicity attached to such cases dilutes the essentials of a fair trial and the basic principles of jurisprudence including thepresumption of innocence of the accused unless found guilty at the end of the trial"[5], hence, it is necessary to create a just balance between the freedom of speech and expression guaranteed in Article 19(1)(a) and the due process of criminal justice required for a fair criminal trial, as part of the administration of justice.
CONTEMPT OF COURTS
Under the Contempt of Courts Act 1971, any publication that interferes, scandalises or prejudices any proceeding and the course of justice, which is actually a pending or ongoing proceeding constitutes the contempt of court. Though section 5 of the act has a provision where a fair criticism of judicial act would not amount to contempt, and section 4 of the act states that a fair and accurate report of judicial proceeding would not amount to contempt, but such defence can only be used when a case is heard, finally decided and the report so published is fair and accurate. Hence media trials may fall under the ambit of contempt of court because these agencies do not limit their publishings to exact and accurate news but cross their boundaries by not only showcasing the distorted facts of the case but also insensitively and without any due diligence announcing their own verdict before the judiciary to gain TRP. As Justice Shah stated[6] "Any act that is done or published to bring any Judge or the court to the ambit of contempt or which tries to bring down the authority of the court or anything that tries to interfere with the proceedings of the law are going to be termed as contempt of court." Hence, such acts must be punished under criminal contempt of court which interfere, prejudice or/and scandalise the proceedings.
It is agreed that justice delivery system in our country is slack and media coverage expedites the process. But, it is humbly submitted that the expected role of news reports is to bring matters in the view of society and not to pass judgment on guilt or innocence of persons. As the Chief Justice of India has remarked, "Freedom of press means people's right to know the correct news", but he admitted that newspapers cannot be read like an official gazette and may have a tinge of "sensationalism, entertainment and anxiety"[7].
DEMAND FOR RECTIFICATIONS
Media should follow a line of control during public trials. It should emphasize on the truth and should help the court to project the right verdict for justice. The Malpractice of portraying unethical issues in media is not a matter to be neglected.
Instead of unduly debating on media regulation, it is more significant for the nation to focus on media literacy to develop at all levels including media persons and common people. This coupled with enhanced quality of general education and steps to improve journalism education in the country, will make a self-regulatory mechanism internal to the media, even as it explores new, but sensible form of investigative journalism. Apart from this a strong monitoring procedure with empowered monitoring committee is also the need of the hour and monitoring must be on such implementation and execution of law in proper way. Though Press Council of India was established to preserve the freedom of the Press and to maintain and improve the standard of newspapers and news agencies in India but it is no more than a 'toothless tiger'. It has no power other than that of censuring and admonition. The PCI is in dire need of being legally overhauled. Firstly, the ambit of the PCI must be increased to regulating the electronic media as well. Secondly it must be given the power to levy fines, as mere censoring won't deter media outlets to behave responsibly and hence it is necessary to use the rod. Thirdly, as practiced by the Medical Council of India and Bar Council of India, the process of licensing journalist must be initiated, and PCI must be given a free hand in dealing with the journalists. By doing so, proper journalistic conduct would be maintained when erring journalists would have their licenses confiscated.
Media is one of the most important element for a democracy to function, that works for greater interest of society but at the same time the legal processes must not be impeded by the media coverage of a matter. Mandatory steps are the need of the hour to prevent media trials from eroding the civil rights of the citizens, whereby media has clearer definition of their rights and duties and the courts are given power to punish those who blatantly disregard them.
[1] Anamika Ray and Ankuran Dutta, "Media Glare or Media Trial Ethical Dilemma between two Estates of India Democracy", (2015) 5 Online Journal of Communication and Media Technologies (Sep 16, 2020, 2:56 pm) https://www.researchgate.net/publication/274633662_Media_Glare_or_Media_Trial_Ethical_Dilemma_between_two_Estates_of _India_Democracy.
[2] Mistrial by Media, The Indian Express, October 14 2017.
[3] Om Prakash, Right to Privacy in Sting Operations of Media, O.R 57, May 2013
[4] Zahira Habibullah Sheikh V. State of Gujarat and Ors, 4, SCC 158 (Guj: 2004).
[5] Chandra Pradhan v. Union of India, AIR 2814 (SC: 1997).
[6] AIR 1821(SC:1970).
[7]Media must not run parallel trials: CJI, The Times of India, October 20, 2008.
3 Oct 2020 3 Oct 2020 Editorial Team Covid-19
ACT OF GOD AND FRUSTRATION OF CONTRACT AMID COVID-19
Jay Gajbhiye and Ankesh, both 2nd year Law students of National Law University Odisha, describes the concept of Act of God and it's repercussions on the performance of contractual obligations amid Covid-19 pandemic.
The term Force majeure, which is a common clause mentioned in many contracts nowadays, basically excuses the companies or any other party to the particular contract from meeting the requirements on their part of the contract if certain situations like, "natural disasters, war, unforeseen government actions and sometimes also includes pandemics and epidemics" occurs which is beyond their control and interferes with the party's part of performance of the contractual terms.[1] If these clauses are invoked, then they can relieve the parties out of the performance of the contractual terms. It can be defined as an occurrence not reasonably predictable or manageable, which occurs from "natural causes" and could not be avoided by immediate precautions.[2]
This is a "paradox" that we can designate Coronavirus as "Act of God" in legal words. If the agreed provisions (terms of the contract) cannot be carried out, not because of the party's negligence but because of anything outside its reach, it is not legally and practically appropriate to enforce liabilities.
The recent happenings of the outbreak of the Coronavirus globally have risen a question as to whether we can put this following pandemic under the Act of God as COVID-19 was neither predicted nor could be avoided.
EFFECT ON CONTRACTS OF TRADE AND AGREEMENTS
The term "Act of God" appears regularly within contracts, but it is not a concept defined by statute. Despite this, its significance is relevant, as an Act of God can activate a party's right to postpone results, cancel obligations, or even terminate a contract. Given the epidemic of COVID-19, several parties wonder that the epidemic itself is a "work of Nature.[3]" Now the virus has been a concern for all segments of the society, and we have seen how the Public healthcare system has failed to contain it. Businesses also seem to be affected by this crisis, the possibility of no physical contacts have adversely affected these businesses. It's been almost seven months since the virus has been around and the situation doesn't seem to change. Workers are unable to attend work, shipment delays, or canceling big events, the virus is having significant consequences in many industries.[4] How the force majeure clause would be used is to be seen.
The courts are going to decide what will constitute force majeure depending upon the facts of the particular case, and it should also be noted that there is no need, the clause should be mentioned in the contract. The approach of the court is also going to be interesting to see while deciding a case on these matters. Now, we have seen that the Chinese government issued "force majeure certificates" to Chinese companies[5], but globally what will decided is yet to be seen. As with the majority of situations, the presumption of proof is with the party applying, and thus, if a party is going to have to rely on a force majeure provision, all relevant evidence should be gathered.[6] It seems likely that the outbreak itself will be deemed an Act of God[7] by applying the Court's advice to the COVID-19 outbreak.[8]
However, considering the proximity of the COVID-19 outbreak itself and the constraints of the government, an alternative view can be taken that the connection between the Act of God and non-performance is not severed. Since this issue is not resolved, if a party wishes to rely on a contractual clause relating to an Act of God in the sense of the COVID-19 outbreak, their stance must be clear as to whether the related non-performance occurred as a result of the pandemic itself or as a reaction to it by humans. The other events mentioned as force majeure could be a hint for clarification in the contract setting: several courts interpreting force majeure clauses will look at concrete examples of force majeure events to justify the definition in broader terms, such as God's act.[9] Determining whether a pandemic or virus epidemic would be an Act of God may also depend on what other misfortunes the parties thought would justify obligations under the contract.
EFFECT OF CORONAVIRUS ON MEDICAL INSURANCES
Buying a health insurance plan is, from an individual's point of view, one of some ways he/she can mitigate the consequences of health-related demands. Health-related issues may have various impacts on an individual. Besides getting the individual physically and mentally drained, compensating for medical treatment, hospitalization and medication may be a huge strain on a person and his/her relatives. Right now, a life-care kit arrives at the rescue. Typically, a normal health insurance plan compensates for the diagnosis and hospitalization expenses associated with a medical disease. For a fact, companies do market the regular policy to some individuals, who may incur extra charges involved with severe diseases, insurance in case of significant medical bills, etc. This can be invaluable in the moment of need.[10]
Also, if an expert's advice is to be taken, if the person who is having existing health insurance is diagnosed with the disease, then the cost which would be incurred in the treatment of the disease is to be included in the policy itself. The main reason given by them is that since the symptoms of Coronavirus are just normal flu-like, hence, be included in the policy itself. But if medical insurance is taken after this global outbreak of the Coronavirus, then the person might not be entitled to the treatment of Coronavirus included in the policy. In regards to the global outbreak of the Coronavirus pandemic, the Insurance Regulatory and Development Authority (IRDA) has given the names of 29 insurers who will be allowed to sell an indemnity health insurance product which will cover the hospitalization costs for the treatment of the Coronavirus.[11] The life care premium would have compensation between INR 1 lakh and INR 5 lakh.[12] The regulator has explained that COVID-19 hospitalization will include all new Mediclaim programs in India. In addition to being concerned about the epidemic, this comes as a consolation. Citizens were still worrying about the financial consequences of the same in a sluggish economic climate.
In conclusion, we can say that whether Coronavirus can be regarded as an act of God is not clear. This depends on the language. Contracts containing clauses for force majeure appear to set out eligible incidents, sometimes citing natural hazards, conflict, and unexpected government decisions. These can also contain pandemics, epidemics, and the specific "catch-all" term for incidents outside the reach of a group. Also, we can understand that the act of Coronavirus was started by a person itself, so there is a possible chance that this cannot be regarded as an act of God, but if the clause is not invoked, it could be leading to various uneventful situations regarding the performance of the contractual obligations. Outbreaks and epidemics are often classified as force majeure incidents, though courts have no expertise in determining if a specific disease meets the bill, and when we see it with respect to COVID, the expertise of courts may not be critical. The suspensions and other unforeseen disturbances that followed the spread of the virus carry "all the hallmarks of force majeure" is close to those of a hurricane or other large-scale natural catastrophe, considering the impact of the epidemic on companies.
Jay Gajbhiye and Ankesh are second year Law student from National Law University Odisha.
[1] Ellen Gilmer, Coronavirus as an Act of God: Force Majeure Clauses Explained, BLOOMBERG LAW (Mar 27, 2020), https://news.bloomberglaw.com/environment-and-energy/coronavirus-as-an-act-of-god-force-majeure-clauses-explained
[2] Andrew Schwartz, Breaking contracts over coronavirus: Can you argue it's an
'act of God'?, THE CONVERSATION (Mar 31, 2020), https://theconversation.com/breaking-contracts-over-coronavirus-can-you-argue-its-an-act-of-god-134791
[3]Kristen Anderson, The Proximal Origin of SARS Covid- 19, NATURE MEDICINE (March 17, 2020), https://www.nature.com/articles/s41591-020-0820-9
[4] Nick Ashcroft, Coronavirus – an act of God?, ADDLESHAW GODDARD (Feb. 2020), https://www.addleshawgoddard.com/en/insights/insights-briefings/2020/general/coronavirus-an-act-of-god/
[5]Sun Yu, China issues record number of force majeure certificates, FINANCIAL TIMES (Feb. 2020), https://www.ft.com/content/bca84ad8-5860-11ea-a528-dd0f971febbc
[7] Gordon Kaufman, On the meaning of act of God, Cambridge University (Apr. 1968), https://www.cambridge.org/core/journals/harvard-theological-review/article/on-the-meaning-of-act-of-god/035E1B248A520B3C6F8698A303942FD0
[8]Isabelle Ord, DLA Piper, When is an outbreak an act of God? Mitigating commercial and operational risks during the COVID-19 crisis, DLA Piper (May 4, 2020), https://www.dlapiper.com/en/uk/insights/publications/2020/02/when-is-an-outbreak-an-act-of-god-mitigating-commercial-and-operational-risks/
[9]FEMA Emergency Management Institute, Introductory Session – Four Theories of Disaster, (Nov. 7, 2002), http://training.fema.gov/EMIWeb/edu/docs/hazdem/Session%205%20–%20The%20Four%20Theories%20of%20Disaster.doc
[10]Moneytips, CBS News, Insurance: What exactly constitutes an "Act of God"? (July 30,2015),
https://www.cbsnews.com/media/insurance-what-exactly-constitutes-an-act-of-god/
[11]Guidelines on introduction of short term health insurance policies providing coverage for COVID-19 disease (June 23, 2020), https://www.irdai.gov.in/ADMINCMS/cms/whatsNew_Layout.aspx?page=PageNo4159&flag=1
[12]Financial Express, Can a health insurance policy protect you from Coronavirus impact?(April 7, 2020), https://www.financialexpress.com/money/insurance/explained-can-a-health-insurance-policy-protect-me-from-coronavirus-impact/1920945/.
26 Sep 2020 Editorial Team Blogs
TRAVERSING THE DWINDLING PATH OF DIGITAL PRIVACY LAW IN INDIA
Simran Kaur, final year law student from University Institute of Legal Studies, Punjab University Chandigarh analyzes the Digital Privacy Law in India.
Digital Citizenship is exercising citizenship through the galaxy of technology while having the right to affix liability of entities in it. Data holds the power to ascertain modalities of varied attributes of humans in all possible walks of life. Its accumulation enables a mode of governance on the basis of profiling and segmenting populations in ever-proliferating ways.[1]
The Indian Government drafted two bills named Personal Data Protection Bill, 2018 and Personal Data Protection Bill, 2019 consecutively having application across several industries and sectors within the country for codifying principles of data localization, control of the government over processing of data and surveillance reform. It was broadly formulated for citizens to enforce their privacy rights against both private parties and the state to secure their fundamental informational privacy in pursuance of the case, Justice K.S Puttaswamy vs. Union of India[2] (herein referred to as the Privacy Judgment), which had infused privacy into the right to life and liberty under Article 21 of the Indian Constitution. It bears a close resemblance to the European Union's Guidelines on Data Protection, which deals with virtually all attributes of data and its associated functions; however, it differs on several counts pertaining to the location of storing data and power of government over non personal data controlled by firms.[3]
The governance of technology and the ecosystem of data processors are considered to have a tinge of political inference, which needs strategic autonomy in carving out and forging a data sovereign vision. As the Personal Data Protection Bill 2019 stands for review before the Parliamentary Committee, it is important to examine by which measure and the extent to which it dilutes, tampers or solidifies the tenor of privacy.The objects and purpose of the proposed law falls short on account of not addressing the original patent irregularities.
Section 26 of the 2019 Bill conspicuously enabled the Government to categorize certain social media intermediaries as significant data fiduciaries, further as laid down in section 28 requiring, which are notified as significant data fiduciaries, to voluntarily verify the accounts of their users. These provisions ostensibly purport to clamp down on information asymmetry and perpetuates flow of fake news in the country because the verification of the social media accounts of the users instills in them a certain degree of deterrence,- of being traced and held accountable for their actions of spreading fake news. As a necessary implication, the availability of information with a data fiduciary will significantly increase, which is fundamentally antithetical to the core intentions of any data protection law. There is an obligation of data minimization and storage limitation on data fiduciaries to prevent misuse of personal data. However, this newfound power of the data fiduciaries could potentially equip them with a legal mandate requiring their users to link their social media accounts with a government identity, thus charting out creation of a surveillance state. Hence a more microscopic engagement into the ambiguous mechanism operative around such fiduciaries from the perspective of interests of beneficiary, implied grant of power to the service provider needs to be made.[4]
It comes down on the right of anonymity of the citizens, which is enmeshed within the fabric of all the fundamental rights. By requiring its users to disclose their identity, the state is setting the stage for a scenario where unpopular sentiments will have a huge risk of being retaliated against at the hands of the State as the proposed law also did not incorporate a prohibition against retaliation provision. While, – section 35 of the 2019 Bill plunges into giving unabated power to the government, imploring that when necessary in the interest of the sovereignty and integrity, security of state, friendly relations with foreign state, public order or to prevent incitement to the commission of an offence relating to these criteria, the government can proceed with the same regardless of any democratic measure. The 2018 Bill only granted the exemption for national security reasons on the basis of four-fold proportionality standard. However, under the 2019 Bill, the three new grounds, namely sovereignty, integrity, and public order, have unexplainably widened the ambit of the provision. To lend credence, in Virendra v. State of Punjab[5], the Apex Court held that the phrase "in interests of" would defer to the government's determination of when "public order" could be jeopardized by speech and expression. The threshold of public order standard is dominated solely by the state. Thus, the safeguards that existed prior shall restore, so that blanket power is not given to the government under the new act.[6]
On the commercial cooperation front, the government has amassed the right to acquire this data, which is essentially a company's intellectual property, to "promote framing of policies for the digital economy. It means that government agencies may be exempt from any scrutiny by Data Protection Authority (DPA), and can even collect data from third parties, which can be fin-tech companies or health-tech startups without the user even knowing. Far from initiating criminal prosecution for mass surveillance, India's DPA is devoid of the power to penalize a government agency for such a violation of the fundamental right to privacy. The government also has vast exceptions for data processing: "for the performance of any function of the state authorized by law". It is also a layout to regulate cross border data transfer. Furthermore, the Bill has designed a mechanism to deal with cases of a data breach, which entails all legal entities responsible for storing and processing data to disclose any instance to the DPA.
The lines of state surveillance become blurred by the fact that the central government, in the interest of "national security, sovereignty, international relations and public order, can issue directions to DPA." It shall which be bound by for its power has been hugely reduced. As previously, it had the sole power to categorize data as sensitive personal data, but in the current version, the power rests with the central government, albeit in nominal consultation with it.
India's position on governance over the flow of personal and non-personal data remains vague as pervasive and ubiquitous collection of personal data rages on creating frictions between the critical functions of the state and a market-driven economy. The country must have a narrow definition of what can be made public and what should remain confidential. Taking a cue from the European Union's Regulation on the Free Flow of Non-Personal Data, which puts non-personal data into two distinct buckets, – and considers the free- flow of non-personal data as a prerequisite of a competitive economy. The regulation also ensures the free movement of data across borders, prohibiting data localization: -the 2019 Bill certainly falters upon such a balance.[7]
The international spectrum responded to the legal tussle between the mammoth of mass surveillance and data privacy rights of people globally by ruling against the EU-US Privacy shield agreement setting a precedent for transparency and safety valves in data retention reservoirs.[8]
In India, the deal which unities India's biggest platforms in internet service and telecommunication sectors, compromising net neutrality by potently monopolizing exclusive access to massive transaction data and controlling search paradigms, can be accentuated by the unfilled gaps in the Bill.Disproportionate unfettered control and incomplete channels have resultant ramifications for the underpinnings of digital citizenship through stunting the thread in the golden triangle.[9]
Simran Kaur is a final year law student from University Institute of Legal Studies, Punjab University Chandigarh
[1]Arne Hintz, LinaDenick Karin &Wahil-Jorgensen,Digital Citizenship and Surveillance, 11, 731, (733-4), International Journal of Communication, (2017).
[2] Justice K.S. Puttaswamy v. 10, SCC,. 1. (2017).
[3] Anirudh Burman & Suyash Rai, What is in India's Sweeping Personal Data Protection Bill, Carnegie India, (March. 9, 2020), https://carnegieindia.org/2020/03/09/what-is-in-india-s-sweeping-personal-data-protection-bill-pub-80985.
[4]Smitha Krishna Prasad, Information Fiduciaries and India's Data Protection Law, Data Catalyst, (September. 2019), https://datacatalyst.org/reports/its-a-matter-of-trust-exploring-data-fiduciaries-in-india/.
[5] Virendra v. State of Punjab AIR,. 896. (1957).
[6] Nikhil Pahwa, Power over privacy: New Personal Data Protection Bill fails to really protect the citizen's right to privacy, The Centre For Internet and Society, (Dec. 12, 2019), https://cis-india.org/internet-governance/news/the-times-of-india-december-12-2019-power-over-privacy
[7]AayushSoni&AditiChaturvedi, India has to toe a fine line in defining non personal data –between public interest and IPR, The Print, (March. 17, 2020), https://theprint.in/opinion/india-has-to-toe-a-fine-line-in-defining-non-personal-data-between-public-interest-and ipr/382149/?fbclid=IwAR35bjPKJz2doiDctKx_ykD4W1ePmsW6fHPvPrPGp3Jq1WqWtGScxOtofwk.
[8]ArnabChakraborty, Schemes III: Data Privacy Triumphs Over Mass Surveillance, Oxford Human Rights Hub, (August. 13, 2020),https://ohrh.law.ox.ac.uk/schrems-ii-data-privacy-triumphs-over-mass-surveillance/.
[9]Anupriya Dhonchak, Facebook – Jio Deal: Big Data, Competition and Privacy, India Corp Law, (May. 8, 2020), https://indiacorplaw.in/2020/05/facebook-jio-deal-big-data-competition-and-privacy.html.
25 Sep 2020 25 Sep 2020 Editorial Team ADR
ANALYSIS ON THE DEVELOPMENT OF ADR IN DIFFERENT COUNTRIES
Snigdha Shandilya and Pritish Kumar Pattnaik, both 5th year law students from KIIT School of Law, Bhubaneswar discusses the development of dispute resolution through Arbitration in different countries.
With the recent development in the legal system, most of the disputes are resolved, more convenient than any formal trial.[1] Most of the disputes relating to energy, financial services, aviation are settled through the Alternative Dispute Resolution mechanism. In different countries, development in ADR has been made through amendments in the Arbitration law. This is not only a better mechanism for settlement of the dispute, but also it offers better efficiency, flexibility, empowerment of parties, and justice. Today, there are more than 200 countries in the world to have negotiation treaties and prefer the International platform to resolve disputes that arise at any point in time.[2] Arbitration offers a platform for resolving cross border commercial disputes between two countries through negotiation and mediation mechanisms.
The Arbitration Law of India underwent three amendments in the years 1940, 1935, and 1961.[3] Recently, the bill has been passed in legislation to amend laws relating to domestic, international, and commercial arbitration. It aimed to encourage foreign trade and make New Delhi as the headquarters of International Arbitration. There has been a High-level committee set up by the central government. The committee had introduced the Arbitration and Conciliation (Amendment) Bill in the year 2019. The main objective was to deal with the dispute's speedy resolution with minimum cost expenditure and less court interference.[4]
The Arbitration in the Conciliation Act was introduced after the amendment in 1996. It stated powers to Supreme Court and High court to designate the Arbitral institution. It also gave powers to CJI of the High Court to appoint the arbitral panel and review arbitrators' conduct.
The parties got privileges to choose arbitrators through the application to institution directed by the Supreme Court. In the cases of International Commercial Arbitration, the arbitrators' appointment shall be made on the application. It sets the parties free to decide the procedure of arbitration.[5] The legislation has also introduced the power of appeal in the new amendment. In contrast, Part 1A is included in the Act to establish the Arbitration Council of India. Lastly, section 26 has been repelled under the new amendment.
There has been a lot of development made in the International Arbitration Act 1974. The change in the Australian Arbitration laws mainly focuses on international trade and commerce. Most of the amendments are inspired by the amendments made in the year 2006 to the UNCITRAL Model. These developments are made to restrict foreign arbitral awards. Arbitral courts of Australia has the power to make interlocutory orders. The threshold test has been removed under the recent changes in the Arbitration Act of Australia.[6] The new enactments also provide optional provisions to the parties to accept or exclude the jurisdiction made by the Federal Court of Australia. Under the UNCITRAL Model Law, the tribunals have the power to make interim orders that may be necessary for the subject matter of the institution.[7] However, Article 17B of the UNCITRAL Model law has not been included in the Act's recent amendments. The recent amendment also provides a regime of confidentiality, which enables the parties to seek permission to disclose such information.
The new developments in ADR from the past few years have bought immense relief to the parties. Earlier they tend to visit court, and even after spending considerable time and effort, most of them end up losing because of the time-consuming proceedings. This disadvantage by civil dispute resolution gave rise to other mechanisms. The new developments under the Chinese ADR mechanism aim to self, social, and public -relief by improving the quality of mass media and giving the best effects. The major development can be seen in the era of 2006 during the Shanghai Pudong Area People's court.[8] Here, it was mandated to consider mediation for the pre-trial stage during the civil and criminal cases. The next development was regarding mediation, which majorly focuses on personal rights. Earlier, the parties had to give up on their interest and compromise in traditional mediation.
Earlier, the focus was on the betterment of the group and not on the individual's right, which was constructed in providing relief. One cause for such was also no professional training of mediators, which resulted in poor mediation committees. The sole reason for this job is part-time was due to low pay and funds. The change bought more resources to train and educate them. The professional mediation committees have expanded in the many other sectors, including insurance, securities, and intellectual properties. The third change was collaborating the non -judicial organizations with courts, which led the settlement confirmed by the court. The courts have also been seeking advice for mediation organizations and assistance. Now comes the fourth change, which talks about the amendments, enactment, and legalization of "People's Mediation Law." The law includes the selection and qualification of mediation and mediators.
In comparison, the fifth change is about having the usage of modern technology and online dispute resolutions. Parties can easily apply for mediation and choose their mediator over it through video. The parties need to sign in with their cell phone or computer. There was also an establishment of the first Internet court, which deals explicitly with online dispute cases.
There was also a new treaty imposed on cross-border mediation, which was signed by China. This treaty encourages cross-border mediation.
The Hong Kong International Arbitration Centre (HKIAC) has been granted a license for being the authorized committee. The laws undergo major amendment on March 29, 2019.[9] These amendments focused majorly on the dispute arising out of the shareholder's agreement of the contracts by state companies[10] These began affecting arbitral and ad hoc arbitration. The amendment also provided relaxation in terms of compensation for the parties who incurred loss or those who claimed invalidation. These could only be referred to as the ones licensed by the Russian government. Later, the Russian institution also announced the grant of license to the sports arbitration in April 2019.
These amendments consisted of some requirements, which are as follows. The first was that the party to the arbitration should be administered under a permanent institution and seated in Russia.[11] The parties were not needed to include the entity itself, and the arbitration procedure must be confidential. The amendments also expanded the scope of disputes to be referred to in international arbitration institutions. The ones arising out of the procurement of contract concluded by the state-owned under Law 223-FZ had gone under the restrictive approach adopted by Russian courts.
In light of the recent development in the Arbitration laws, it has provided a better platform for resolving the dispute through Arbitration. The impact of arbitration has been increasing throughout the world, as it is the modern way of delivering justice. It will bring efficiency, flexibility, and tailored outcome through arbitration by eliminating the lengthy court procedures. Legislations of different countries make more significant efforts for arbitration laws to resolve disputes with the minimum period effectively. The rising technology in Arbitration has also changed people's perception, especially at the time of COVID 19. With the development in the arbitration laws, it has benefited both nationally and internationally.
Snigdha Shandilya and Pritish Kumar Pattnaik are final year law students from KIIT School of Law, Bhubaneswar.
[1]Findlaw. 2020. Alternative Dispute Resolution: Which Method Is Best For Your Client – Findlaw. [online] Available at: <https://corporate.findlaw.com/litigation-disputes/alternative-dispute-resolution-which-method-is-best-for-your.html> [Accessed 15 September 2020].
[2]Lawshelf.com.(2020) History of Alternative Dispute Resolution [online] Available at https://lawshelf.com/coursewarecontentview/history-of-alternative-dispute-resolution/ [Accessed 10th August 2020].
[3]Indianlegallive.com (2020) Recent developments and impact of changes in arbitration[online] Available at: https://www.indialegallive.com/top-news-of-the-day/news/recent-developments-and-impact-of-changes-in-arbitration/ [Accessed 10th August 2020].
[4]Jamsadr.com (2020) Recent Trends in Alternative Dispute Resolution. [online] Available at: https://www.jamsadr.com/publications/2002/recent-trends-in-alternative-dispute-resolution [Accessed 10th August 2020].
[5]Mondaq.com.(2020) Recent Developments In India-Related International Arbitration – International Law – India. [online] Available at: https://www.mondaq.com/india/international-courts-tribunals/737816/recent-developments-in-india-related-international-arbitration [Accessed 10th August 2020].
[6]Jonesday.com (2020) [online] Available at: https://www.jonesday.com/en/insights/2010/08/arbitration-in-australia-how-recent-reforms-have-improved-the-conduct-of-international-arbitration-and-the-enforcement-of-awards [Accessed on:11th August 2020].
[7]Mediate.com.(2020) the Australian Experience Of Pre-Litigation ADR Requirements [online] Available at: https://www.mediate.com/articles/RooneyG3.cfm.
[8]Nortonrosefulbright.com. (2020). Alternative Dispute Resolution ADR. (Sept. 4,2020, 10:24 pm) [online] Available at: <https://www.nortonrosefulbright.com/en-cn/services/357d79cb/alternative-dispute-resolution-adr [Accessed 11th August 2020].
[9]Lexology.com.(2020) A Glimpse into The Future Of Alternative Dispute Resolution In China | Lexology. (Sept. 4,2020, 10:24 pm) [online] Available at: Lexology.com (2020) [online] Available at:https://www.lexology.com/library/detail.aspx?g=50d68969-e072-4186-951e-c890ecc7e598 [Accessed 11th August 2020].
[10]Walker, T.,Mediation (2020) | ADR in Russia | Weinstein International Foundation. [online] Weinstein International Foundation. (Sept. 4,2020, 10:24 pm) Available at: https://weinsteininternational.org/russia/ [Accessed 11th August 2020].
27 Aug 2020 27 Aug 2020 Editorial Team Covid-19
THE IMPACT OF COVID – 19 ON THE COST AND QUALITY OF HIGHER EDUCATION: STRIKING A FINE BALANCE
Nishtha Tripathi and Deepti Shinde, both 4th year students of National Law University, Jodhpur discusses about effects on the cost and quality of higher education due to Covid-19.
If you happen to be a student pursuing higher education in the middle of the COVID-19 pandemic, you have been handed a raw deal. UNESCO reports estimate that close to 1.52 billion students have been left bereft of the classroom.[1]
The threat of contagion has shifted classes to the online realm, following lockdown orders[2] issued under sections 6(2)(i) and 10(2)(1) of the Disaster Management Act, 2005[3].
In such a scenario, the prospect of fees has left a sour taste in the mouths of the students. Not only are they raising demands for reduced fees but are also claiming a fee refund for the facilities that they paid for and cannot avail.
Here, the authors present the stance of both the stakeholders and conclude with plausible solutions to arrive at a balance.
Students' Perspective
What is the hue and cry about?
Deprivation of Campus Infrastructure
The education sector has witnessed severe disruption.[4] Students have asserted how unfair it is to be charged for campus infrastructure they have been unable to redeem, for instance, libraries, laboratories, studios for the arts and architecture based courses.[5] The University Grants Commission Act, 1956, specifies that these are activities which students need to necessarily engage in during their courses of study and a university is not entitled to charge under these heads unless it is making provisions for the same.[6]
Deprivation of campus life
Virtual education has also not been received warmly because it robs students of many on-campus opportunities like interpersonal engagement and interaction, development of networking skills and participation in a diverse and closely-knit student community.[7]
Quality of online classes not up to the mark
Students have balked at the mounting fees because they believe that online classes are not a substitute for the in-person ones. A UK Parliamentary report notes that the vast majority of students express dissatisfaction with the online mode of delivering education.[8] PowerPoint presentations uploaded by faculty members have not been interactive enough to bolster conceptual understanding and faculty feedback has been drastically restricted. In some cases where efforts have been made to conduct live classes, students have reportedly been unable to follow the course of the lectures.
Fall in class hours
Another glaring deficiency has been the fall in teaching hours across courses. This becomes exponentially serious when regulatory bodies, such as the UGC, the Bar Council, and the Medical Council, mandate providing elite education that adheres to standards higher than the minimum in terms of teaching hours.[9] For instance, Bar Council requires that a semester in law school shall be spread over not less than 18 weeks with not less than 30 hours per week dedicated to classes, including moot court exercises and seminars.[10]
Moreover, online classes are unsuitable where practical competence, like undertaking medical residencies and internships, counts.
Pass/Fail Assessment System Does not Reflect Learning
The assessment patterns have also made the students feel short-changed. The pandemic made universities cancel exams for the first and second years and resort to the no-detriment or average grading policy for the others.[11] It is reasonably apprehended that qualifications thus secured will generate learning loss.[12]
Access to Disadvantaged Students severely hampered
Advocates for the students' cause have further pointed out that the distance model has amplified the rampant inequalities in the education system. Students from disadvantaged backgrounds have to slog through connectivity issues like weak Wi-Fi signal, video glitches, audio lags, limited concentration in crowded households, etc.[13]
All these factors have connived together, resulting in a disgruntled student class.
Are there legal remedies?
Aggrieved students have made recourse to civil remedies. In the United States and India, contractual breach claims have been made on account of universities failing to live up to the vibrant promises they made in their brochure/prospectus.[14] Some student class actions have alleged unjust enrichment on part of universities which continue to charge for amenities they no longer provide.[15] It can be argued, for instance, that the case falls squarely under Section 70 of the Indian Contract Act, 1872.[16] Deficiency of service has also been claimed under Section 2(1)(g) of the Consumer Protection Act, 1986[17], because of the unsatisfactory quality of online teaching.[18]
While these might crumble in the face of the contractual defence of force majeure, the authors would argue that there is an overarching relief to be had in the precedent that holds education to be a constitutional objective and a public good, which stands apart from a commercial transaction, and must not be profiteered from.[19] As per this line of reasoning, it follows that if colleges have registered a drop in variable costs incurred, the same should reflect in the fees that they charge. It is not within their rights to demand for full fees if they are unable to deliver all or some of what they offer.
Moreover, regard must also be had to other sympathetic grounds in the name of complete justice- parents losing means of livelihood, economically backward classes struggling from poor connectivity, the adverse effects of online learning on the students' mental, emotional and physical health[20], the lack of individualized follow-up that demoralizes students into performing poorly and dropping out[21], etc.
Universities' Perspective
University finances are also threatened by the pandemic, thus, making it essential to levy fee. At the school-level, High Courts have understandably been conflicted between allowing for the legitimate management concerns of unaided institutions[22] and maintaining the sanctity of the right to education.[23]
Infrastructural Costs
While the resumption of classes remains uncertain, the need for robust virtual platforms strengthens manifold. Such platforms require solid technological support, trained teachers, desired equipment, and other contractual obligations. Making institutions waive off full tuition fees would prevent them from procuring distance learning mechanism.[24]
Salaries to staff
Universities have to pay the working staff, irrespective of the shutdown, which includes retirement benefits, advances and health care. These can only be paid on the receipt of the fee charged.
Health compliance costs
Furthermore, once reopening becomes a possibility, institutions shall have to prepare strong facilities for sanitation, innovative measures for following social distancing, health care amenities, and maintenance of other educational supplements, which naturally requires more expenditure.[25]
Other costs related to maintenance of standards
When it comes to unaided institutions which function without state funds, it is their exceptional services, quality education, and infrastructural benefits, which encourage students to opt for them.[26] These standards draw upon the fee received, thus, denying institutions the levying of fee could jeopardise their viability and the students' future.
Similarly, even when facilities like hostels, electricity, gyms, library, and buses remain unused, universities have to pay minimal charges[27] and depreciation costs on the fixed assets.
Thus, exemption of fees becomes unreasonable because it impedes the payment of maintenance costs, current liabilities, loans payable, taxes, investments and other expenses.
Striking a balance
Court recommended dialogue
There arises a need for innovative solutions that can provide balance among the parents and educational institutions. For instance, the Punjab High Court, while upholding the legitimacy of university fee, suggested the establishment of a financial aid committee in institutions, which can help the parents affected most by the pandemic.[28] Such committee shall act as vanguard by providing concession, waiver of fee, or opportunity to submit the fee in installments, on submission of required documents.[29]
The authors would like to stress that while government policies have allowed full tuition fees in some cases, it falls upon the judiciary in their parens patriae role[30] to help smoothen out access to education, especially, considering that education is an inherent human right, as per Article 26 of the Universal Declaration of Human Rights[31] and Article 13 of the International Covenant on Economic, Social and Cultural Rights.[32]
Detailed breakdown of fees and no late payment penalty
Even if courts dismiss petitions praying for exemption of fees, it becomes imperative for institutions to maintain the trust, faith, and future security of students, and make amenable decisions by not denying ID cards for online classes in cases of non-payment due to financial constraints. They could also decide for non-imposition of penalty for late fee submission.[33]
It is always feared that universities take undue advantage by charging more than what is incurred under a consolidated head. Therefore, universities must adhere to accounting standards with break-down of detailed heads, leaving no scope for ambiguity. While they can make space for a reasonable surplus, they must abstain from profiteering[34], keeping in mind the sensitive times.
Private sector funding of education
Lack of central or state funds exerts more pressure on institutions.[35] Therefore, more funds should be sanctioned for education sector, perhaps, by channelling CSR from companies.[36]
Additionally, now that ESG bonds have gained tremendous momentum[37], they could also be deployed to invest in educational and health care infrastructure[38] to ensure that universities are adept at carrying out screening and quarantining in the post-COVID period.
This would also be in keeping with World Bank's advice to countries to prioritize investments in technology so that the low-income students facing digital divide can catch-up.[39]
State Support and Legislative Reforms
Government representatives must also push for further action on UGC guidelines regarding scaling of college fees and put into action the 2019 UGC reform recommendations that had proposed constitution of Fees Committees to analyse the reasonableness of fee levied by private and unaided institutions.[40]
Undertaking steps to mitigate the negative consequences on education is a State responsibility[41], and a constitutional mandate[42]. As a welfare state in letter and spirit, the legislature must draft and implement measures such as the US Coronavirus Aid, Relief and Economic Security Act which makes available grants for students in both public and private universities[43], and other pipeline bills that aim at helping educational institutions offset compliance costs associated with following public health orders[44], assisting student loan borrowers by way of moratorium and zero interest rates[45], etc.
India could also follow the stead of Russia which has provided operational support to its universities to transition to the online format, including state portal for admissions[46] and employment portal for students who lost their part-time jobs.[47]
A balance in these trying times can only be reached when educational institutions, parents, and students, work in co-operation, without indulging in any malpractices, or taking advantage of concessions by false claims, in order to protect the best interest of students.
Nishtha Tripathi and Deepti Shinde are fourth year students from National Law University, Jodhpur.
[1]Coronavirus COVID-19 and Higher Education- Impact and Recommendations, UNESCO International Institute for Higher Education in Latin America and the Caribbean (IESALC), March 9, 2020, available at https://www.iesalc.unesco.org/en/2020/03/09/coronavirus-covid-19-and-higher-education-impact-and-recommendations/
[2]Ministry of Home Affairs Order No. 40-D/2020 D dated March 24, 2020, available at https://www.mohfw.gov.in/pdf/Annexure_MHA.pdf and https://www.mha.gov.in/sites/default/files/PR_NationalLockdown_26032020_0.pdf
[3]The Disaster Management Act, Act No. 53 of 2005, Acts of Parliament, 2005.
[4]Maike Halterbeck, Dr. Gavin Conlon, Mr. Ohys Williams, Ms. Jocelyn Miller, Impact of COVID-19 pandemic on University Finances, London Economics, April 2020.
[5]Nick Morrison, Students entitled to Tuition Fee Refund over Lockdown Disruption, forbes, July 12, 2020, available at https://www.forbes.com/sites/nickmorrison/2020/07/12/students-entitled-to-tuition-fee-refund-over-lockdown-disruption/#2408cbb072f6
[6]§12A(2)(d) and §12A(3)(a), The University Grants Commission Act, Act No. 70 of 1985, Acts of Parliament, 1956.
[7]Andrew Depietro, Impact of Coronavirus (COVID-19) on College Tuition and Finances, forbes, June 2, 2020, available at https://www.forbes.com/sites/andrewdepietro/2020/06/02/impact-covid-19-tuition-finance/#81af544b8839
[8]The Impact of COVID-19 on University Students, Publications and Records, Petitions Committee, House of Commons, available at https://publications.parliament.uk/pa/cm5801/cmselect/cmpetitions/527/52702.htm
[9]§26(1)(f), The University Grants Commission Act, Act No. 70 of 1985, Acts of Parliament, 1956.
[10]Rule 10 Semester System, Chapter II Standards of Professional Legal Education, Bar Council of India Rules of Legal Education, available at http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartIV.pdf;
[11]Supra, note 8.
[12]Shriya Roy, Covid-19: Prestigious universities moving online, but can digital learning compensate for campus experience?, financial express, July 12, 2020, available at https://www.financialexpress.com/education-2/covid-19-prestigious-universities-moving-online-but-can-digital-learning-compensate-for-campus-experience/2020964/
[13]Gilbert, Brittany, Online Learning Revealing the Benefits and Challenges, Education Masters. Paper 303, 2015.
[14]Molly Moriarty Lane, Scott T. Schutte, Ezra D. Church, Brian M. Ercole and Lily G. Becker, Colleges & Universities Hit With Refund Class Actions While Struggling With COVID-19 Effect, lexology, May 18, 2020, available at https://www.lexology.com/library/detail.aspx?g=214a724a-3667-478e-8beb-e443e3698930
[15]Drew H. Campbell, Unjust enrichment claims in tuition refund class actions: No pain, no gain, no claim, Bricker & Eckler Publications, May 19, 2020.
[16]The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872.
[17]The Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.
[18]Reepak Kansal v Union of India, Writ Petition dated June 30, 2020, available at https://www.livelaw.in/pdf_upload/pdf_upload-377541.pdf
[19]Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh, A.I.R. 2016 SC 2601.
[20]Mangis, Jessica, Online Learning And The Effects On Functional Health: A Pilot Study, EWU Masters Thesis Collection, 2016.
[21]Eric Bettinger and Susanna Loeb, Promises and pitfalls of online education, Economic Studies at Brookings, Evidence Speaks Reports, Vol 2, June 9, 2017
[22]Naresh Kumar v. Director of Education & Ors., W.P. (C) 2993/2020.
[23]Amandeep Singh & Ors. v. State of Punjab and others 2020 SCC OnLine P&H 945; Sreelekshmi v. The state of Kerala, 2020 SCC OnLine Ker 2494.
[24]Report on Implementation of Accounting Standards in Educational Institutions of Department of Higher Education,
[25]Ministry of Human Resource Development, available at < https://mhrd.gov.in/sites/upload_files/mhrd/files/document-reports/Report_IASEI_0.pdf>
[26]Independent Schools' Association v. State of Punjab & Ors., 2020 SCC OnLine P&H 626
[27]TMA Pai Foundation vs State of Karnataka (1994) 2 SCC 199.
[28]Supra, note 25.
[30]Supra, note 25; University Grants Commission, Letter regarding Payment of Fees, D.O.No.F. I -l 12020 NGC (Tf -C OVID- I 9/Fee), May 27, 2020; All India Council for Technical Education, Instructions to Institutes/Colleges during Lockdown 2.0, No. F. 7-2lDDlAdmn/lnter corr.(Vol.-ll) Pt., April 15, 2020.
[31]Charan Lal Sahu v Union of India A.I.R. 1990 S.C. 1480
[32]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 16 August 2020];
[33]UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html [accessed 16 August 2020]
[34]Rajat Vats v. GNCTD, 2020 SCC OnLine Del 568
[37]Pulkit Malhotra, The Dichotomy of School Fees: Balancing the Unbalanced, July 15, 2020, available at https://www.barandbench.com/columns/the-dichotomy-of-school-fees-balancing-the-unbalanced.
[38]Jean-Jacques Barbaeris, Marie Briere, ESG resilience during the COVID crisis: Is green the new gold?, July 09, 2020,available at https://www.ecmi.eu/sites/default/files/ecmi_commentary_no_67_july_2020.pdf.
[39]George Inderst and Fiona Stewart, Incorporating Environmental, Social And Governance (ESG) Factors Into Fixed Income Investment, the world bank group publication, April, 2018, available at http://documents1.worldbank.org/curated/en/913961524150628959/pdf/125442-REPL-PUBLIC-Incorporating-ESG-Factors-into-Fixed-Income-Investment-Final-April26-LowRes.pdf.
[40]Renaud Seligmann, COVID-19 (Coronavirus) Policy Response to Addressing Learning Gaps and Inequalities in Russia, the world bank, May 07, 2020, available at https://www.worldbank.org/en/country/russia/brief/covid-19-response-learning-gaps-inequalities-russia.
[41]The University Grants Commission (Fees in Professional Education Imparted by Private and Unaided Institutions deemed to be Universities) Draft Regulations, 2019, No. F. 1-6/2016(CPP-I/DU), available at https://www.ugc.ac.in/pdfnews/0811937_Draft-Regulation-fees-DU-Public-Notice.pdf.
[42]§22(1)(i) and 38(1)(f), The Disaster Management Act, Act No. 53 of 2005, Acts of Parliament, 2005.
[43]India const. art. 38, 41 and 46.
[44]Coronavirus Aid, Relief and Economic Security Act, 116 U.S.C., CARES Act, §§ 1102-23008 (2020)
[45]Reopen Schools Safely Act, HR, 116TH Cong., H.R. 7692 (2020).
[46]Student Loan Fairness Act, US Senate, 116th Cong. S. 4237 (2020).
25 Aug 2020 Editorial Team Blogs
THE CONUNDRUM OF NON-CRIMINALIZATION OF MARITAL RAPE IN INDIA
Mohd Ayan & Wasia Naqvi both second year law students of Jamia Millia Islamia, New Delhi analyzes the implications of non-criminalization of marital rape in India.
"Mother, he raped me!" uttered the girl dejectedly, "But he is your child's father!" whispered her mother, and tears welled up in her eyes as she anticipated that at least her mother would understand her plight. Well, this would not have been the conundrum if marital rape had been criminalized in India.
Marital Rape or Rape in marriage is a serious societal issue that has received very little importance over time, and it is a prevalent form of violence against women. It is unwanted intercourse obtained forcefully without the consent of the female partner. Over the decades, the marital rape exemption is recognized and heard of as a crime. Confident analysts have criticized the immunity as it violates the "Law of Equity."[1] With the accumulation of evidence and facts, it is observed that Marital Rape is not just a crime but also a persistent problem in a large number of marriages.[2]
Historical Context of Decriminalization of Marital Rape
Dated back to the 18th Century concept and the "Unities Theory" laid down that rape is a property crime committed against another person, which meant that marital rape does not exist as one cannot commit a crime against himself[3] and the concept of 'wifely duty' is based on the assumption that the wife has to satisfy her husband sexually.[4] The reason for the non-criminalization of marital rape could be traced back to the British colonial rule in the Victorian Era.[5] Back in the 1860's when the Indian Penal Code was drafted, a married woman was not considered a legal entity and had no rights that are now guaranteed to her. Exemption two that excludes women from taking action against their husbands for rape is primarily influenced and derived from the "Doctrine of Converture" that demands the merger of a woman's identity with her legally married husband.[6]
Current Indian laws are the adoption of English laws and Victorian regulations. The marital rape exception to the IPC's definition of rape is based on Victorian patriarchal norms that even forbids married women to own property, but with modernization, Indian laws have been amended providing married women with an exclusive and independent legal identity and the modern age much of jurisprudence is concerned with women's protection but still fails to recognize marital rape as an offense.
Current legal framework and the need for change
Rape is defined and codified under section 375 of the Indian Penal Code ("IPC")[7], which includes all forms of sexual abuse, including non-consensual intercourse with a woman. However, there is an exemption to section 375 which articulates that non-consensual intercourse with a wife, above 15 years of age, would not amount to rape. Later, in Independent Thought v. Union of India[8] the Supreme Court of India has increased the age of consent for sexual intercourse in marriage to 18 years. Before the verdict, a husband's sexual act against her wife aged above 15 years did not amount to any offense. The court also asked for legal reforms to prevent and address violations of women's rights against child marriage. However, the court refrained from dealing with the marital rape issues of a woman aged above 18.
Under the current Indian society, after entering into a marital relationship, a wife is deemed to consent to sex. If women's rights are taken away after marriage, then marriage itself would violate the fundamental rights guaranteed under Article 14 & Article 21[9] in the Constitution of India. In State of West Bengal v. Anwar Ali Sarkar habib[10], the Supreme Court held that under Article 14 of the Constitution of India, any classification is subject to reasonable examination that could only be passed if it draws a rational connection for the goal that the act tries to achieve. Excluding a husband from punishment is utterly contrary to the very purpose. In short, the consequences of rape are the same whether the woman is married or not. It can be noted that there are exceptions made but no rigid laws regarding marital rape.
According to the National Crime Record Bureau report, in 2015, in every two minutes, a case of crime against women is reported, and most of them were committed by their husbands.[11] Following this, according to the UN Population fund report[12] two-third of married women in the age group of 15-50 in India had been subjected to forced sex, physical violence, torture, and dowry demand. Poland was the first country to criminalize marital rape in 1932 and Australia being the first common law country to criminalize marital rape. Since the 1980s, many other countries have criminalized marital rape. Some of these countries are Canada, United States, Malaysia, and South Africa.[13] Thailand criminalized it in 2007[14] while South Korea and Rwanda in 2009. The criminalization of marital rape now indicates that it is a violation of human rights. In India, rape in a marriage is still not considered as a violation of human rights.
Effect on victim
Marital rape has both psychological and physical impact on the victim.[15] It was observed through the research[16] that the victims of Marital Rape experience emotional pain, nightmares, and inability to trust and becomes fearful and tends to blame themselves for the rape. Husbands forcefully make their wives pregnant without their consent and force them to have a child when she is not ready for it. In Suchita Srivastava v. Chandigarh Administration[17] the Supreme Court of India held that the right to reproduction is also a dimension of the right to personal liberty guaranteed under Article 21 of the Indian Constitution. It is analyzed that most of the women who are victims of marital rape are even experienced physical violence repeatedly.[18] Victims suffer from soft tissue injuries, bumps, tenderness, and abrasions. Researchers have shown that the victims suffer from psychological problems and disorder in which the most prominent ones are depression and post-traumatic stress disorder symptomatology.
Effect on children
Marital rape has a devastating and everlasting effect on the children. Personal accounts of marital rape victims suggest that children often witness sexual assault, screams, and plight during rape. In Oregon v. Rideout[19], in 1978, John Rideout was accused of raping his wife Greta Rideout in front of his two-year-old daughter. He was found guilty of first-degree rape. He was convicted and was sentenced to 16 years in prison. It was the first case in the United States that led to the criminalization of marital rape. Studies show that children who witness physical abuse between their parents in childhood are more likely to be involved in the same act as adults.[20]
Suggestions and remedies that can be available to a marital rape survivor
It's high time, marital rape should be criminalized with a rigorous punishment. It should be declared as a ground for divorce in matrimonial laws. Marital rape cases must follow the standard rape protocol, which includes careful documentation and legal instructions. Victims of marital rape should receive medical, mental, and social assistance services for addressing post-trauma difficulties. If an FIR is filed, police officers must immediately help transport the victim for a medical test. Simultaneously, we need to educate and empower our women, to make them free from the shackles of dependence.
Rape is less of a sexual offense than an act of aggression aimed at humiliating and outraging a woman. The doctrine of marital exclusion in rape has represented that a married woman is effectively deprived of her right to bodily self-determination concerning personal choices, that is, consent to sexual intercourse. Patriarchal power structures view marriage as a license to legitimate unwanted sex. There is a complete denial of a woman's self-worth. Marital rape also has devastating effects on the children, which may harm their future. Efforts should be made to provide the victims with health as well as social service assistance. A crime so brutal should be criminalized.
Mohd Ayan & Wasia Naqvi are second year students from Faculty of law, Jamia Millia Islamia, New Delhi
[1]All Answers Ltd. November 2018, The Law of Equity, Law Teacher, (accessed 16 August 2020). available at: https://www.lawteacher.net/free-law-essays/property-trusts/the-law-of-equity.php?vref=1
[2]Raquel Kennedy Bergen, Marital Rape: New Research and Directions, VAWnet: The National Online Resource Center on Violence Against Women, available at: https://vawnet.org/sites/default/files/materials/files/2016-09/AR_MaritalRapeRevised.pdf
[3]Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital rape in India: Understanding its constitutional, cultural and legal impact, NUJS Law Review, available at: http://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf
[4]Sumedha Choudhary, Why criminalization of marital rape is still a distant dream in India, Business Standard, (accessed 16August, 2020) available at: https://www.business-standard.com/article/current-affairs/why-criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html
[5]Jill Elaine Hasday, "Contest and Consent: A Legal History of Marital Rape," University of Chicago Law Occasional Paper, No. 41(2000) available at: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi article=1008&context=occasional_papers
[6]Keri Engel, The law of Converture: Why a women called by her husband's name?, Amazingly women in history, available at: https://amazingwomeninhistory.com/law-of-coverture-why-call-a-woman-by-her-husbands-name/
[7]The Indian Penal Code, 1860, section 375
[8]Independent Thoughts v. Union of India (2017) 10 SCC 800
[9]Indian Constitution, art. 14 & art 21
[10]State of West Bengal v. Anwar Ali Sarkar habib (1952) 1952 AIR 75
[11]NCRB, Crime against women (2015) (accessed 16 August 2020) available at: https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%205-15.11.16_2015.pdf
[12]UNFPA and International Centre for Research on Women, Violence against women in India, UNPFA India (2004) available at: https://india.unfpa.org/en/publications/violence-against-women-india
[13]Vedant Saraf, Marital Rape should be criminalized, Lawnomy, available at: https://www.lawnomy.com/post/marital-rape-should-be-criminalized
[14]Women living under muslim laws (2007) available at: http://www.wluml.org/node/3905
[15]Chabra, Smrithi & Rai, Devdas & Chacko, Kevin. (2014). The emotional and psychological aspects of rape. Journal of Evolution of Medical and Dental Sciences. 3. 9001-9009. 10.14260/jemds/2014/3159.
[16]Bennice, Jennifer A., and Patricia A. Resick, "Marital Rape: History, Research, and Practice." Trauma, Violence & Abuse 4, no. 3 (2003): 228-46 (accessed August 16, 2020) www.jstor.org/stable/26636357.
[17]Suchita Srivastava v. Chandigarh Administration (2009) AIR 2010 SC 235
[18]Patricia Mahoney and Linda M. Williams, "Sexual Assault in Marriages" Prevalence, Consequences, and Treatment of Wife Rape. Partner Violence" A 20 year old Literature review and synthesis (accessed August 16, 2020) http://www.ncdsv.org/images/nnfr_partnerviolence_a20-yearliteraturereviewandsynthesis.pdf
[19]Oregon v. Rideout U.S.(1979) ;26(1):49-56.
[20]Patricia Mahoney, supra note 17.
24 Aug 2020 Editorial Team Transgender
THE DISPROPORTIONATE EFFECT OF COVID-19 PANDEMIC: IMPACT OF GENDER AND DIFFERENCES IN CHALLENGES FACED BY WOMEN AND THE LGBTQ+ COMMUNITY
Raghavi R. and Sahana Priya Satish, both fourth year students of Tamil Nadu National Law University, discusses the disproportionate effect of Covid-19 on women and LGBTQ+ community.
The coronavirus pandemic has led to extreme social disruption, heightening the existing social and economic vulnerabilities. It has caused a shift in the focus of those in authority towards taking remedial and preventive measures to stop further spread of the virus. Though warranted, this lockdown in the light of COVID-19 has resulted in the eclipse of one of the most pervasive forms of human rights violation- domestic violence. It has also resulted in the disregard of the needs of various marginalised groups of the population.
This essay seeks to highlight the urgent need to address the growing menace of domestic violence during this time and to take affirmative actions to combat it. It also aims to put into focus the plight of some members of the LQBTQI+ community in the backdrop of the pandemic. The first step in this process is to identify and realise the existence of gender-based differences in experiencing the effects of a lockdown. These differences in the impact become all the more relevant in the backdrop of a country like India, owing to its patriarchal set-up. Further, the essay also looks at prospective special measures that could be taken in light of the framework of the Protection of Women from Domestic Violence Act, 2005, in the wake of the current situation as well as other sustainable measures that can help the mitigation of the crisis while catering to the needs of vulnerable groups.
Home, a place far from being safe- The brutal reality
Domestic violence continues to be one of the most horrendous yet hidden forms of violence against women and children. It includes both physical and emotional abuse that may be inflicted upon the victim. While both these forms of domestic violence are widely prevalent, physical abuse is certainly more discernible than the psychological scarring. The magnitude of this issue oftentimes goes unnoticed, mostly due to the underlying social and psychological factors in the institution.
Unlike other forms of abuse, the fact remains that this is executed by a person who is related to the victim, such as her husband, father, in-laws or others who may be understood to be in a fiduciary relationship with her. It occurs in circumstances where the victim may seem free to leave, but in reality, is held prisoner by fear of further violence against herself and her children, or due to lack of resources and familial, legal or community support.[1]
Economic and psychological dependability plays a major role in comprehending the reasons as to why a particular gender is considered 'weak' or is subjected to mistreatment as opposed to others.[2] A number of women in India have been manipulated and coerced into staying at home instead of seeking employment, leaving them with no choice but to accept low paid or unpaid household based exploitive labour. However, it is imperative to realise that this works in the inverse way too. The progressive increase in the economic independence of women is perceived as a menace or a threat, thereby contributing to violence against working women.[3]
Differential impact among gender groups
In India and globally, women have always been regarded as the primary caretakers in a family. The coronavirus pandemic and consequently the lockdown have worsened the situation of working women as they are burdened with fulfilling the needs of the family as well as completing work obligations. The economic impact of the lockdown also finds stark differences in the way it affects women and marginalised groups as opposed to men.[4] Apart from being the informal care takers within families, many women are often the primary breadwinners in their family. The workers who are employed as domestic help are predominantly women[5] and with the lockdown they have become unemployed without any pay. In families where such women are the sole earning members, their source of income has been adversely affected.
The tackling of domestic violence during the period of a lockdown becomes more essential as the victim and the abuser are often residing together, which leaves the victim with very less opportunity to escape or to even report abusive incidents. With the disappearance of the few hours of respite that these women had prior to the lockdown, there has been a global rise in the number of domestic violence cases.[6] Various NGOs which work with victims of domestic violence are unable to provide any help to such women due to the lockdown and the strong social distancing measures in place. Where previously the victims had the option to be moved to private shelter homes, now their only solace is in contacting the helplines that have been set up by a few NGOs.[7] This also poses a challenge as not all women have the wherewithal to be able to access a phone for the purpose.
In case of queer and transwomen for whom home often turns out to be the site of abuse, the lockdown has proven to pose various difficulties as they are unable to interact in a safe space or seek help from help centers catering to their needs. Some members of the transgender community are also facing the brunt of the situation as they have been plagued with a loss of accommodation, livelihood, food security and health.[8] The members of this community who are required to undergo Hormone Replacement Therapy for gender transitioning and Anti-Retroviral Treatment for treating HIV/AIDS are unable to access hospitals due to the overburdened health care system.[9]
Recommended measures
The measures that have been taken for the management of this pandemic have completely ignored the disproportionate impact that it has on women and other marginalised groups. There seems to exist an inherent male bias in the policies and approach surrounding the outbreak of a disease. The treatment and handling of the COVID-19 pandemic by the government has not taken into consideration the differential effect that a lockdown has on women which has led to various problems. One of the most important steps that can be taken to rectify this is by ensuring and encouraging the participation of women and other affected groups in framing of policies and interventions so that they fulfill the needs of various groups.
The Protection of Women from Domestic Violence Act, 2005 (hereinafter, "the Act") has been designed in such a manner so as to tackle emergency situations and grant immediate relief. There is a need to ensure efficient working of protection officers, appointed under S. 8 of the Act. Though they have been appointed to assist women and ensure appropriate working of the Act, studies[10] indicate an absence of positive influence on their part due to a lack of sensitivity or competency. The first step is to believe victims and to offer them whatever instantaneous assistance possible. Certain exclusive measures can be taken up while handling domestic violence matters during these exceptional times.
One suggestion would be with regard to the processing of the complaints received via the official website of the National Commission of Women.[11] If the complaint in itself seems indicative of the presence of abuse that warrants immediate protection to the victim under the PWDV Act, then the same can be done. Spreading awareness regarding helpline numbers through the aid of television, radio, print media and online platforms is crucial. Further, an additional number of Non-Governmental Organisations should be encouraged to register as essential service providers under S. 10 of the Act.
Other possible measures include providing regular telephone counseling services to both the victim and the abuser and institutional quarantine of the abuser wherever required. The government can also work with various organisations to establish private shelter homes for people facing abuse along with transport facilities for them so that they have the option to seek shelter elsewhere. The provision of measures such as these would go a long way in tackling domestic violence and abuse during a lockdown.
The transgender community has been faced with increasing hardships in relation to accommodation, livelihood and healthcare, as a consequence of which a few people from the community wrote to the Ministry of Finance, Home Affairs and Social Justice & Empowerment seeking assistance.[12] It is the responsibility of the government to pay heed to the basic requirements of this community and to make certain that at least their minimum survival necessities are met with. Steps also need to be taken to ensure that the persons who require regular medical attention are provided with the requisite facilities so that no hindrance is caused in their treatments.
In a country like India, where the society still functions on a patriarchal setup, gender becomes a key demographic consideration during the handling of emergency situations like pandemics. During these times, the goal of gender equality is often put on hold. This should not be the case; protection of victims needs to be prioritized irrespective of a 'larger crisis'. Employing a gendered dimension is usually not given importance while responding to problems like the current crisis, but the failure to do so has the potential to aggravate the existing inequalities. There is a need to apply a gendered lens while studying the effect of a pandemic and this can be achieved by incorporating the views and knowledge of women and other marginalised groups which could help in improving outbreak preparedness and response. Such strides in ensuring gender equality should not be limited to just tackling this pandemic but should also act as a stepping stone towards bringing down the systemic and structural barriers that have plagued these diverse groups for years.
Raghavi R. and Sahana Priya Satish are fourth year student of Tamil Nadu National Law University, Tamil Nadu.
[1]Report of the Special Rapporteur on Violence Against Women, United Nations ECOSOCE/CN.4/1996/53 at https://www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf.
[2]Domestic violence against women and girls, Innocenti Digest (No.6, 2000), UNICEF Innocenti Research Centre, Florence, Italy, at https://www.unicef-irc.org/publications/pdf/digest6e.pdf.
[3]Id.
[4]Women at the Core of the Fight Against COVID-19 Crisis, OECD Policy Responses to Coronavirus, at https://www.oecd.org/coronavirus/policy-responses/women-at-the-core-of-the-fight-against-covid-19-crisis-553a8269/
[5]Dr. Nidhi Tewathia, Living on the Margins of Development: Domestic Women Workers, MPRA Paper No. 82258, ( Nov 02, 2017) https://mpra.ub.unimuenchen.de/82258/1/MPRA_paper_82258.pdf.
[6]UN backs Global Action to End Violence Against Women and Girls Amid COVID-19 Crisis, UN News, Apr. 6, 2020, at https://news.un.org/en/story/2020/04/1061132.
[7]Aathira Konikkara, Lockdown and Domestic Violence: As NGOs Struggle to Support Women at Risk, Government Plays Catch Up, The Caravan, Apr. 15, 2020, at https://caravanmagazine.in/gender/lockdown-domestic-violence-ngo-struggle-government-catch-up.
[8]Divya Trivedi, COVID-19 and the Plight of the Transgender Community, Frontline, Apr. 29, 2020, at https://frontline.thehindu.com/dispatches/article31463945.ece.
[9]As the World Comes Together, India's Transgender Community Fights COVID-19 Alone, Amnesty International, Apr. 1, 2020, at https://amnesty.org.in/as-the-world-comes-together-indias-transgender-community-fights-covid-19-alone/.
[10]Tulika Saxena Indian Protection of Women from Domestic Violence Act: Stumbling or Striving Ahead? https://core.ac.uk/download/pdf/156706367.pdf.
[11]Complaint and Investigation Cell, National Commission for Women, http://ncw.nic.in/ncw-cells/complaint-investigation-cell.
[12]Trivedi, supra.
23 Aug 2020 23 Aug 2020 Editorial Team Blogs
DATA PROTECTION BILL OF INDIA: A CRITIQUE FROM THE DATA PRINCIPAL PERSPECTIVE
Shravani Nag Lanka, a 3rd year student of Dr. Ram Manohar Lohiya National Law University, Lucknow, scrutinizes The Personal Data Protection Bill (PDPB), 2019 and its implications on the society.
The world has gone digital and this trend will continue to accelerate exponentially, especially in times of the COVID-19 pandemic. We are progressively going to rely more on digital technologies for myriad personal and professional activities. This digitalisation leads to the generation of 'big data', a term used for massive data sets generated by the users of various digital services. Users will be forced to share their data, willingly or unwillingly, knowingly or unknowingly. This data would be in the hands of the companies providing various digital services including, video conferencing, communications services, online education, online health consultations, entertainment, etc.
However, the process of digitalisation has to be regulated in a manner that would facilitate growth, innovation and not concentrate power in the hands of few mega corporations providing these digital services. India is possibly one of the last remaining significant democratic economies without an enacted Data protection law but has the second largest internet users of the world. The Personal Data Protection Bill (PDPB), 2019[1] was expected to be the bill that would have ushered in the regulation of personal data of individuals and setting up of Data Protection Authority. However, efforts in this regard were brought to a halt when instead of passing the bill, it was referred for further deliberations to the Joint Parliamentary Committee.[2] The 2019 version of the Personal Data Protection Bill (PDPB) has drawn criticism, the most significant one being that it is an instrument that gives the government immense power over the data of the people. Justice B.N Sri Krishna, the chief architect of the draft law stated how the government has removed the safeguards that had been placed in the draft bill and can now access personal data on the grounds of sovereignty and public order, and thus has the potential to turn India into an Orwellian state.[3]
The smoke screen for the rights of users
The highlight of this bill is that it gives free rein to the government over the personal data of the users without the users having any right over their own data. Clause 91 of the bill permits the government to acquire data from any corporation without their consent for "reasonable purposes."[4] The provision states that "the Central Government may, in consultation with the Authority, direct any data fiduciary or data processor to provide" any anonymised data to "enable better targeting of delivery of services or formulation of evidence-based policies by the policies by the Central Government."[5]
The same is the case with the 'breach notification' clause 25 where data principal whose data is being collected will not even know if their data has been leaked unless the authority decides that the data fiduciary which is an entity or individual who decides the means and purposes of processing personal data should inform the users or not.[6] The breach's reporting will depend on the severity of the harm that may be caused to the data principal and the power for determining this threshold rests with the Authority. It is important to note that the government has given itself the power to determine when it becomes necessary to inform the users that their data has been leaked and it may so happen that they won't inform at all. In this paradigm, the users have been snatched of their informational privacy as well as their privacy of choice enshrined in the right to privacy, as stated by Justice Nariman in the Puttaswamy Judgement of 2017.[7] By not informing, the companies are taking away the choice of people to determine whether they want to review the privacy policy and disengage with the services of that particular entity or not.
The Data Breach notification system is meant to inform the data principals that their information has been compromised. The said system in the United States of America simultaneously informs the data principal as well as the regulatory agency responsible for such breaches about the compromise. Similarly, the General Data Protection Regulation (GDPR)[8] of the EU states that if data has been breached, the company will provide breach notification to the data principals including the amount of data loss and its consequences. If a failure to report such a data breach is observed in Europe, then it can lead to a fine on the corporations either of €10 million or 2% of worldwide turnover.[9] The Indian draft bill disregards the rights of the users in the breach notification system and they are left at the mercy of the government rather than making the data fiduciaries liable for the compromise of their systems.
The biggest flaw in this entire bill is that the government agencies can be exempt from the provisions of the statute. But to connect the dots, one needs to go back and examine the Aadhar data leak of 2017.[10] This data leak revealed that several State departments and Central Ministries were found to be violating the Aadhar( Targeted Delivery of Financial And other Subsidies, Benefits and Services) Act[11] but the Unique Identification Authority of India (UIDAI) did not file a single case against anyone. Also, the provision in the Act states that only the UIDAI – not the affected person is authorised to file a FIR.[12] This raises questions as to why a private right of action is not allowed within this statute that thrives on user's data. Why is there no space for individual choice of the data principal or control over their data? Does it mean that the government wants to protect the industry from any liability as they will be the catalysts for surveillance and this reiterates the nexus in the data driven world?
The objective of the PDPB 2019, would lead one to believe that the government wants to have dominance over people's data by disregarding rights enshrined by the Constitution. This may lead to abuse of power in a liberal democratic setup without any checks or balances violating the rights of privacy prescribed for individuals by accessing their data in the name of sovereignty and public order. If this bill is left to pass in its current avatar, it may give legitimacy to the government's unbridled power to make laws in a manner that serves their purpose of turning India into a surveillance state.
Shravani Nag Lanka is a third year student of Dr. Ram Manohar Lohiya National Law University, Lucknow.
[1]The Personal Data Protection Bill, 2019, Bill No. 373 of 2019 (India).
[2]Personal Data Proetction Bill referred to joint select panel, The Hindu ( December 11, 2019, 12:55 IST), https://www.thehindu.com/news/national/govt-proposes-to-send-personal-data-protection-bill-to-joint-select-committee/article30275186.ece.
[3]Regina Mihindukulasuriya, Safeguards removed, new data protection bill should be challenged in court: BN Srikrishna, The Print (December 15, 2019, 3:01 PM), https://theprint.in/india/safeguards-removed-new-data-protection-bill-should-be-challenged-in-court-bn-srikrishna/335537/.
[4]Navya Singh, Know all about India's Data Protection Bill and How it is a threat to Privacy, The Logical Indian (February 20, 2020), https://thelogicalindian.com/campaign/save-our-privacy/data-protection-bill-19804?infinitescroll=1.
[5]The Personal Data Protection Bill, 2019, Bill No. 373 of 2019 (India), § 91.
[7]Anirudh Burman, Will India's proposed Data Protection Law Proetct Privacy and and Promote Growth?, Carnegie India ( March 9, 2020), https://carnegieindia.org/2020/03/09/will-india-s-proposed-data-protection-law-protect-privacy-and-promote-growth-pub-81217.
[8]General Data Protection Regulation, Regulation (EU) 2016/ 679 of the European Parliament and of the Council.
[9]Danny Palmer, What is GDPR? Everything you need to know about the new general data protection regulation, ZDNet (May 17, 2019, 19:03 IST), https://www.zdnet.com/article/gdpr-an-executive-guide-to-what-you-need-to-know/.
[10]Anumeha Yadav, Government Websites are leaking Aadhar numbers. Who will take action against the government?, Scroll.in (April 25, 2017, 09:00 AM), https://scroll.in/article/835546/the-centres-casual-response-to-aadhaar-data-breaches-spells-trouble.
[11]The Aadhar (Targeted Delivery of Financial And other Subsidies, Benefits and Services) Act, 2016, No. 18, Acts of Parliament, 2016 (India).
[12]Reetika Khera, The different ways in which Aadhar infringes on privacy, The Wire (July 19, 2017), https://thewire.in/government/privacy-aadhaar-supreme-court.
MSP BILL – FOR STRONGER SUPPORT TO THE FARMERS
Vishal Mandal, a 3rd year student of Symbiosis Law School, Pune analyzes the MSP Bill and it's implications on the farmers.
A] What is Minimum Support Price?
Minimum Support Price (MSP) is a form of market interference by the government to insure agricultural producers against any sharp fall in prices.[1] The government announces the MSP at the beginning of the sowing season on the recommendations of the Commission for Agricultural Costs and Prices (CACP).[2] The MSP is a guaranteed price for the farmer's produce by the Government. The aim is to support them from distress sales and to buy food grains for public distribution.
The current scheme of MSP is itself built with many flawed implementations. The government announces the MSP for different products, which is uniform throughout the country. However, the government only buys some products on a large scale like paddy and wheat. Other produces are purchased in meagre numbers. The farmers producing products other than paddy and wheat have to incur a loss by selling it at lower costs in the market.
Recently, the Union Cabinet chaired by Prime Minister Modi approved an increase in MSP of Kharif crops.[3] Since there is a scarcity of labour, increased prices of fertilisers and pesticides etc., the farmers are already facing many challenges amidst the corona crisis. Hence, this increased MSP comes as a relief for many farmers. But is the MSP provided by the government sufficient for them considering the rise in the number of farmer suicides?
B] Why Minimum Support Prices (MSP) laws are required?
The prices of food for the consumers are secured by legislation like the National Food Security Act, 2013[4] and the Essential Commodities Act, 1955.[5] The same cannot be said for farmers. The price for the farmers produces has no legislative backup. The last two decades have seen more than 3,00,000 cases of suicides by farmers.[6] Only crop failures and the inability to sell agricultural products have led to 19.5 % suicides.
In Olga Tellis vs. Bombay Municipal Corporation[7], the Supreme Court held that the right to livelihood is essential under Article 21.[8] On a combined reading of Article 38(2)[9] and Article 39(a)[10], it necessitates that the State must take measures to secure adequate means of livelihood. Also, under Article 43[11], the state by suitable legislation has to ensure a decent standard of life to all the workers of agriculture.
Hence, under these provisions, it can be said that the fundamental rights of farmers are infringed who are deprived of a chance to provide a decent livelihood to themselves and their families.
To protect these fundamental rights, the Uttarakhand High Court in the case of Dr. Ganesh Upadhyay vs. Union of India and Others[12] had suggested the Governments to come up with suitable legislation providing legal backing to MSP. The court stated that these legal rights would secure them adequate means of livelihood under Article 21. Subsequently, CPAC also recommended the government to make laws regarding MSP.[13]
C] Recent Development
An effort was made recently to give MSP a legislative colour. The Bill was introduced in the year 2018 by the MP Shri Raju Shetti. He introduced two bills simultaneously for protecting the rights of the Farmers. The bill for MSP is now pending in the Parliament namely, "The Farmers' Right to guaranteed remunerative Minimum Support Price for agricultural commodities Bill, 2018". The author will try to analyse the provisions of this bill in light of the MSP issues faced by the farmers.
II. Critical Analysis of the Provisions
The bill has a lot of basic provisions which should have been implemented by the government on their own as a part of their duty. However, on the failure of the government to perform such duties, the bill now mandates the governments to perform them.
A] Salient Features
1) Legal Right to Minimum Support Price: The Section 3 of the bill confers the right on every farmer to guaranteed remunerative MSP. The MSP for the produce should have at least a 50% profit margin above the comprehensive cost of production.
2) Equitable Representation from different sectors: Section 8 of the bill lays out the composition of the Central Commission. It advises the government to take into consideration equitable representations from various sectors, genders and states on a rotational basis. The provision ensures non-exploitation of the power and each sector having a say in the decision-making process.
3) Promoting advantageous commodities: The bill takes a step ahead and recommends the government to provide incentives on commodities which provides social and environmental benefits under section 10. This helps the government in achieving other goals, such as Sustainable and Environmental development.
4) Duty to provide Minimum Support Price: An additional duty is laid down for the State governments to ensure the prices decided by the commissions is received by the producer from all buyers. The trader escaping to pay the MSP will be held as a cognizable offence under Section 26. The bill formulates a state fund which will compensate the farmer who did not receive MSP for his produce. The farmer will be paid the difference amount of the MSP and price of sale from the fund. The Central Government under section 20 also has to prevent the import of subsidised agricultural commodities which is below the Minimum Support Price so that it does not affect the sale of domestic farmers.
5) Better access to market and faster payments: Since the farmers in the remote areas are not able to sell their produce because of the unavailability of procurement centres, the bill directs the States to open an adequate number of procurement centres. The bill also provides for some instructions in this regard. The procurement centres need to be set up four weeks in advance of the harvest with enough publicity of the operation of these centres. The payment to the farmer should be necessarily be made on the same date.
B] Drawbacks
1) Inconsistent Provisions: There is an evident blunder in two sections of the bill. Section 10 requires the Central Commissions to make recommendations of MSP before 15th of February and 15th of July for the Kharif and Rabi seasons respectively. However, in section 6, the central government is given a months' time after receiving the recommendation to announce the MSP. But the MSP must be announced before 28th February and the last day of July. Now considering a situation where the commission makes the recommendation on the last day i.e. 15th February for Kharif crops, the government will not have a month to announce the prices since it cannot be after 28th February.
2) Fallacious Autonomy: Section 8 provides for the establishment of Central Commissions as an autonomous body by the government. Since the bill gives the power of appointment and removal to the selection committee comprising of Prime minister and other members of the opposition along with the Ministry of Agriculture and Farmers Welfare, it cannot be completely autonomous and free from political influence.
3) Inadequate redressal system: The bill also provides for grievance redressal. A committee has to be formed, which will follow a simple verification procedure to resolve grievances. The complaints filed should be resolved within a month, making it fast and cost-effective. The bill, however, fails to provide for any appellate forum in case of an appeal.
III. Conclusion
There is no doubt that the farmers in India are still being exploited in various manners. The need to ensure adequate returns in agriculture is not only important for the livelihood of the farmers but also essential to safeguard the food security of the nation.
The MSP, this year, was announced on June 1 by the Government whereas under this bill the government will announce the prices before 28th February for the Kharif season. Hence, farmers will be able to make an informed choice.
The MSP announced to the farmers without any legal remedy is equivalent to the Fundamental rights without Article 32 to enforce them. Henceforth, the legal provisions will ensure the MSP to the farmers who will not have to sell their produce below the MSP and incur losses. This Bill will also play a really important part of the Government's target of doubling the farmers' income by 2022 and in reducing their debts. Hence, the bill should be passed at the earliest for the benefit of everyone with the suggested changes.
Vishal Mandal is a third year student of Symbiosis Law School, Pune.
[1]Minimum Support Price, Vikaspedia, https://vikaspedia.in/agriculture/market-information/minimum-support-price.
[2]Organisation, Commission for Agricultural Costs & Prices, https://cacp.dacnet.nic.in/content.aspx?pid=32.
[3]Minimum Support Prices (MSP) for Kharif Crops for marketing season 2020-21, Press Information Bureau, https://pib.gov.in/PressReleasePage.aspx?PRID=1628348.
[4]The National Food Security Act, 2013.
[5]The Essential Commodities Act, 1955.
[6]P. Sainath, Nearly 2 lakh farm suicides since 1997, (December 17, 2016), https://www.thehindu.com/opinion/columns/sainath/Nearly-2-lakh-farm-suicides-since-1997/article16814644.ece.
[7]Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
[8]Article 21, The Constitution of India, 1950.
[9]Article 38(2), The Constitution of India, 1950.
[10]Article 39(a), The Constitution of India, 1950.
[11]Article 43, The Constitution of India, 1950.
[12]Dr. Ganesh Upadhyay v. Union of India and Others, Writ Petition (PIL) No.105 of 2017.
[13]Sanjeeb Mukherjee, A right to sell at MSP: CACP wants legislation to ensure farmers benefit, Business Standard, (July 6, 2018), https://www.business-standard.com/article/economy-policy/msps-hiked-but-debate-continues-to-ensure-farmers-don-t-get-a-raw-deal-118070500080_1.html.