GENDER-BASED VIOLENCE: AN EMERGING PANDEMIC

Naina Bora and Devika Bansal, both 3rd year law students of Gujarat National Law University, Gandhinagar discusses the surge in Gender based violence amidst the COVID-19 pandemic along with the directions given by the High Courts of J&K and Delhi on this issue.

Introduction

Battling the pandemic outside and inside the house, domestic violence has seen a grave surge in the number of reported cases all over the world. Falling under the umbrella term of “Gender-based violence,” it’s been defined as “any act that is perpetrated against a person’s will and is based on gender norms and unequal power relationships” by the UN.[1] 

India ranked 125th by the UN Gender Inequality Index, has seen a consistent rise in the number of reported domestic violence cases due to the COVID-19 pandemic and the recent lockdown.[2] This could be attributed to the tense situation created in domestic households due to the economic and social consequences of the pandemic. This includes loss of jobs and financial instability.  It is pertinent to note that the recorded statistics might not reflect actual numbers given the lack of accessibility to reach the concerned authorities due to poverty.  

During the second week of April 1612 cases of domestic violence were reported to the Delhi Police. National Legal Services Authority (NALSA) which aims to provide free legal aid and advice reported[3] 727 cases of domestic violence. This article attempts to analyse the orders of the High Courts of Jammu and Kashmir and Delhi, which have addressed and given directions on this issue.

High Court of Jammu and Kashmir 

On April 18, the High Court of Jammu & Kashmir took suo moto cognizance[4] of domestic violence during the lockdown and passed an order suggesting a set of directions to be followed by the Government.

The Court noted the plight of women as a consequence of the lockdown due to the inaccessibility to online platforms by women coming from weaker economic sections of the society. It further laid down guidelines for government agencies in adherence to Section 11(a) of the Protection of Women from Domestic Violence Act, 2005[5] which accords a statutory mechanism to ensure the rights of women against domestic violence by ensuring the Government’s duty in publicising it’s provisions through public media.

The Court suggested the creation of a special dedicated fund to deal with the issue, increased legal and counselling service, designated informal spaces such as educational institutions to serve as accessible shelters for such victims. Furthermore, there may be certain designated spaces such as grocery stores and pharmacies where they could report such abuse without alerting the perpetrators. Due regard was given to an increase in awareness campaigns and for all the courts in the UTs of J&K and Ladakh to treat the cases of domestic abuse as urgent.

The High Court of J&K has taken a positive step by providing well-rounded directions which encapsulate solutions for various scenarios while keeping in mind their economic background and access to online platforms.

Delhi High Court 

On April 24, 2020 the Delhi HC delivered a final judgment[6] in a petition filed by the All India Council of Human Rights, Liberties, and Social Justice. Considering the rising number of cases, the inadequacy of having 17 protection officers for the entire state was pointed out. Moreover, the helpline number had been published in two English newspapers, highlighting its limited outreach and the inadequate efforts of the Government to spread awareness via other forms of media. Further, the High Court failed to address the concern regarding the inadequate number of protection officers.

The Government informed the Court that all the directions issued earlier[7] By the High Court, have been complied with, and shelters for such victims will remain functional. Moreover, other help lines, including 181, will remain operational for emergency rescue and support that includes psychological support. National Commission for Women has also introduced a complaints portal on its website along with a WhatsApp number. The Ministry of Information and Broadcasting has issued directions to all private satellite TV channels and FM Radio channels to broadcast the helpline numbers and the different ways a victim can ask for help. The Delhi Government has also recognized 14 NGO run women shelter homes. Delhi State Legal Services Authority (DSLSA), has established a toll-free helpline number and a WhatsApp number through which the victims can get relevant legal advice and aid. Further, both these numbers have been brought to the attention of the public via radio jingles, advertisements in the newspapers, and distribution of pamphlets in mother dairy booths and chemist shops.[8]

The Court failed to take note of the fact that women in India[9] are 28% less likely than men to own a mobile phone and 56% less likely to use mobile internet compared to their male counterparts. This renders the multiple help lines redundant to such victims. France, for example, has set up pop up counselling centres in places like grocery stores, where the victim can ask for Mask 19[10], a code word used by women to notify the authorities if the abuser is accompanying the victim. No such direction has been issued by the Delhi HC, unlike the J&K HC. Due to the close proximity between the victim and abuser, it might lead to the victim being unable to report the abuse; hence there need to be other measures to address this issue.

Conclusion

Most people are still not aware of the help lines due to the limited reach. The Government must also focus on victim rehabilitation centres and other facilities. Despite the special measures taken by some states, they have still failed to take into account problems of inaccessibility to online resources and the minimal measures taken to increase awareness. Although the problem of domestic violence is all-pervasive, other states have failed to take up such proposals.  The Government must take cognizance of the fact that uniform measures are required to provide consistency in areas that lack solutions. 

There should be a notable emphasis on measures beyond help lines while considering the socio-economic status of women in society. The increasing number of domestic violence cases is an indication that government agencies need to rise to the occasion and combat gender-based violence during and after the pandemic.


Naina Bora and Devika Bansal are 3rd year law students from Gujarat National Law University, Gandhinagar


[1]United Nations, SEXUAL AND GENDER-BASED VIOLENCE, UNHCR, https://www.unhcr.org/sexual-and-gender-based-violence.html (last visited May 26, 2020).

[2]Dhamini Ratnam, Domestic violence during Covid-19 lockdown emerges as a serious concern, HINDUSTAN TIMES (May 25, 2020, 8:30pm), https://www.hindustantimes.com/india-news/domestic-violence-during-covid-19-lockdown-emerges-as-serious-concern/story-mMRq3NnnFvOehgLOOPpe8J.html

[3]Most domestic violence cases in lockdown from Uttarakhand, Haryana: NALSA, THE INDIAN EXPRESS (May 25, 2020, 10:05pm), https://indianexpress.com/article/india/most-domestic-violence-cases-in-lockdown-from-Uttarakhand-Haryana-nalsa-6412084/.

[4]Court on its own Motion v. UTs of J&K and Ladakh, (J.&K. High Court: 2020). 

[5]Protection of Women from Domestic Violence Act, 2005, §11, No. 43, Acts of Parliament, 2006.

[6]India Council of Human Rights Liberties and Social Justice v. Union of India, (2020), SCC OnLine Del 537.

[7]Unnati Sharma & Zainab Sikander, Sufficient measures taken to defend domestic violence victims amid lockdown, AAP tells Delhi HC , THE PRINT (May 26, 2020, 9:30pm), https://theprint.in/india/sufficient-measures-taken-to-defend-domestic-violence-victims-amid-lockdown-aap-tells-delhi-hc/404290/.

[8]All India Council of Human Rights Liberties and Social Justice v. Union of India, (2020), SCC OnLine Del 537.  

[9]MOBILE GENDER GAP REPORT 2019, https://www.gsma.com/mobilefordevelopment/wp-content/uploads/2019/03/GSMA-Connected-Women-The-Mobile-Gender-Gap-Report-2019.pdf (last visited May 24, 2020).

[10]Ivana Kottasová; women are using code words at pharmacies to escape domestic violence CNN(2020), https://edition.cnn.com/2020/04/02/europe/domestic-violence-coronavirus-lockdown-intl/index.html (last visited June 16, 2020).  

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Carlill v. Smoke Balls Co.

Citation : [1893] 1 QB 256

Bench: Lindley LJ, Bowen LJ, and AL Smith LJ

Date of Judgement: 7 December 1892

Fact:

In this case, a company named Carbolic Smoke Ball Co. released an advertisement, to pay 100 pounds to anyone who suffers from influenza, cold, or any other related disease, and that claims after taking the ball as per the printed directions disease will be diagnosed. To make it more serious, they added that “1000 pounds are deposited with the Alliance Bank showing our sincerity in the manner.” The plaintiff, suffering from influenza, used the ball according to the prescribed manner but her disease was not diagnosed. She filed a suit to claim the reward.

Issue raised : 

1. Whether the language used in the advertisement regarding the offer to pay 100 pounds was really an express promise or rather it was merely a sales puff?

Judgement:

It was held that the plaintiff was entitled to claim the promised amount. The defendant contended that there was no intention to create any legal relationship, and the advertisement was simply a sales puff.

Justice Bowen LJ observed that the advertisement says that 1000 pounds are deposited in the bank for that purpose. So, It cannot be said that the statement of giving a reward of 100 pounds is mere a sale puff and not intended to form a legal relationship. He also said that when an offer is made world at large, can ripen into a contract if anybody who comes forward and performs the conditions. 

The ratio decidendi of this case was that the advertisement published by the Carbolic Smoke Ball company was a unilateral contract, and whoever comes forward and performs the condition of the proposal, converts the offer into a binding contract.

Personal Opinion:

This is a landmark case of a general offer. By this verdict, the court provides a clear picture of a situation which occurs in our daily life. It describes and clears the importance of the acceptance to the offer. Through this decision, we can differentiate between a sales puff and actual offer or proposal as the court has clearly differentiated both. 

FEDERALISM IN TIMES OF PANDEMIC

Rishi Raj Mukherjee, 1st year student of National University of Study and Research in Law, Ranchi analyzes the manifold challenges associated with the Indian federalism at the time of pandemic.

The outbreak of the global pandemic has thwarted the equilibrium in nations across the world and triggered a ‘litmus test’ moment for Indian Federalism. The article outlines the opportunities it has presented, the manifold challenges associated with the same, and how far has the Indian State successfully transformed ‘challenge into opportunity.’ Undoubtedly, a curious paradox of a ‘Globalised World and Federalised Politics’ is undeniable. The pandemic has derailed globalised development and connectivity and urges for increased cooperation between the Centre and the States.

Politics is a perennial, overflowing river changing its course and dynamics subject to time, space, and conditionalites. So, it is crucial not only to look at the structure of the constitution but also at the practice of it to attempt a comprehensive understanding of the Indian polity and federalism in current times. Scholars including Subrata.K.Mitra have envisaged Federalism as reconciliation between ‘self-rule’ and ‘shared rule’ where there is not only division of powers but eventually a trickledown effect to empower the last person in the line within the folds of democratic governance. 

Changing Centre-State Equations

The shift towards centralization was evident since 2014, with states ruled by Opposition parties alleging discrimination and authoritarianism on part in the Centre. The nationwide lockdown never seemed a ‘consensual decision’ in the initial stages, with only a couple of states like implementing strict curfew restrictions. Delhi was the first to close educational institutions in the first week of March, followed by Karnataka, which had imposed restrictions on public gatherings even before a nationwide lockdown was declared. Public health is a subject in the State List, but given the Global Pandemic, a national approach was much desired. Invoking the Epidemic Diseases Act, 1897 and the National Disaster Management Act, 2005, which provides the Centre with magnanimous powers to arrest the spread of the disease, the decision seemed unilateral on the part of the centre. Later a number of states joined the bandwagon, as the situation worsened.

The Centre and the States finally decided to bury the hatchet for a common cause triggered by the outbreak of the pandemic. Indian federalism seemed to take a conciliatory approach manifested in the video conferences hosted by the Prime Minister with the Chief Ministers. A plethora of Inter-Governmental and Inter-Departmental meetings were witnessed at different levels of the Government. ‘Minimisation of political differences’ is a landmark development achieved only sparingly in the Indian political landscape characterized by stiff electoral competition. Working in a collective and coordinated manner has yielded results, and India’s response mechanism has been widely praised, including by the World Health Organisation (WHO). 

The Federal Tensions

When the entire country was being mapped into red, orange, and green zones, disagreements were bound to surface with every state calling for considerable autonomy in the handling of the pandemic and deciding the parameters for zone demarcation. Past experiences have demonstrated how guidelines and directives issued by the Centre have ‘irked’ state leadership in some opposition ruled states who have conceived such actions as a blow to the ‘federal structure.’ Disputes over data sharing have further contributed to a tug of war with the Governor’s ‘apolitical office’ has recently stirred fresh controversy in the states of Maharashtra and West Bengal. The chaotic inter-state movements of migrant labourers have certainly reflected the failure to chart out a joint plan by the governance. The onus is to effectively mitigate the sufferings of the migrants through proper coordination and develop the areas where the scope lies to transform the ‘challenge into an opportunity.’ 

At the district level, Bhilwara in Rajasthan, Agra, and Kushinagar in Uttar Pradesh and several districts in Kerela have done a commendable job in conducting large scale testing and door to door campaigns. A ‘PM-CM-DM’ equation is clearly playing an instrumental role in all three levels of governance. From the right to life, liberty, and property, the Government moved to secure second and third generation of rights for its citizens, but the crisis has pushed it back to the pavilion. As the unlocking begins after a prolonged shutdown, it needs to be taken care of that ‘A one size fits all policy’ wouldn’t yield the best results.

Dynamics of Fiscal Federalism 

In such times, the significance of ‘Fiscal Federalism’ is only ascendant. The States see the Centre as a ‘repository for financial aid.’ The Centre also continues to play a critical redistributive role in such matters. The Indian Constitution certainly provides us Articles 268 – 293 under Part XI dealing with center-state relations with respect to fiscal provisions shows that the States has exclusive jurisdiction over the collection of State GST, duty on liquor, tax from agriculture etc, depends on aid provided by the Centre. A Micro-Analysis would definitely point to the harsh realities where the States are in a dire financial crunch to meet their immediate expenditures. The nationwide lockdown implied a stop to the sale of liquor, thereby depriving the States of a major source of revenue along with significant relaxations in the collection of land revenues and repayment of farmer loans. Justice KM Joseph had hailed the introduction of the GST Regime as a ‘revolutionary chapter in the history of Indian federalism’, yet states look forward to a GST compensation, which the Centre is yet to release. 

With the BJP at the Centre and a number of opposition parties ruling at the state level, the decision to suspend the MPLAD Funds for a period of 2 years has been slammed by the Opposition as a unilateral stand to ‘Centralise Funds’. Such unilateral steps of the centre without consulting the State governments can worsen the situation. Always ‘demonising the centre as Shylock’ is not the solution to our present woes. Every Government has fiscal constraints, and besides aiding the States, the Centre has its own schemes and packages to fund. 

Empowering local self-governance is imperative to the success of Fiscal Federalism in India. The informal and agricultural sectors which hold the key to economic recovery have been apparently one of the focal points of the ‘Atmanirbhar Bharat’ package announced by the Centre. The package could well emerge as a source of tension with time concerning provisions for loans over grants from the centre. But, it is time for the leadership to realise that the Centre and States ought not to ‘scramble’ for funds but rather, effective and coordinated fund transfer to the needy should be the sole objective. Municipalities and Panchayats will inevitably have a decisive role to play in providing relief at the grassroots for the successful implementation of the package. 

Roadmap for the Future

The framers of the Constituent Assembly had envisioned Indian federalism as a ‘Strong Centre but not Weak States.’ In an era of ‘cooperative federalism,’ states are the partners in nation-building. Leadership and well as policy implementation is the foundation of federal dynamics during any crisis of such massive proportion. Though separation of powers is a tenet of ‘India’s Living Constitution,’ their territories of operation and the interests of the electorate overlap. Any remedial strategy in response to the crisis ought to be people-centric. The reality is that federalism is not just a normative doctrine; it is a ‘procedural necessity’ for achieving ‘larger substantive goals.’ 

“No train runs without an engine. Moreover, the real job is to lay the tracks”. In the context of Cooperative Federalism, the Double Engine, which comprises both the Centre and the States, ought to run in synchronisation to make things happen. ‘Saving Lives and Restarting Economic Growth in a phased manner’ poses a dual challenge in the current scenario. The writing on the wall is bold, clear, and unambiguous. ‘A proactive role for the Centre coupled with constructive partnership from the states’ seems to have emerged as the ‘mantra for nation-building’ in the new evolving India of the 21st century.


Rishi Raj Mukherjee is a first law student from National University of Study and Research in Law, Ranchi


IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Image Source – The Statesman

SC directed Himachal police to submit the investigation details of the Vinod Dua Case

The Supreme Court pulled up the Himachal Pradesh Police for neglecting to record the examination reports relating to the rebellion argument documented against columnist Vinod Dua. The Bench of Justices UU Lalit, Mohan M Shantanagoudar, and Vineet Saran took up the supplication documented by veteran writer Vinod Dua looking for insurance from coercive activity according to a FIR recorded against him in Shimla, Himachal Pradesh.At the beginning of the present hearing, Senior Advocate Vikas Singh, speaking to Dua, named the police cross examination as provocation. He guaranteed that Dua got similar inquiries from the police on different events, and that the police has wouldn’t outfit subtleties of the grumbling.

Asserting that Dua was a “mindful writer” with a remaining of around 45 years in the calling, Singh said that he reserved the option to condemn the administration under the ensured the right to speak freely of discourse and articulation. This privilege was being influenced by virtue of police’s activity against him, Singh submitted. The Court has now directed the police to place the details on record in a sealed cover (Vinod Dua v. Union of India).

(By- Adarsh Khuntia)

‘You cannot malign constitutional authorities like this’ – SG Tushar Mehta in a plea related to violence at Jamia Millia Islamia

During the hearing before Delhi HC in plea related to the violence during Jamia Millia Islamia (JMI) university protests, SG Tushar Mehta appearing for Delhi Police objected certain statements made by the petitioners in their rejoinder affidavit and said you cannot malign constitutional authorities like this.

Bench of Chief Justice D N Patel and Justice Prateek Jalan, was hearing a batch of petitions concerning violence that broke out at Jamia University last year following the Anti-CAA protest.

DOMESTIC VIOLENCE: A SUPPLEMENTARY PROBLEM WITH COVID-19

Kapil Devnani, a first year student of Hidayatullah National Law University, Raipur discusses the issue of domestic violence in the light of the COVID -19.

ABSTRACT

The main focus of this article is on the rise of the cases of domestic violence in the period of lockdown. Domestic violence is one of the biggest social evil that is ignored by the majority of people in our country, but there is an urgent need to cope up with this problem. It is like one of the pillars on which the progress and development of a nation depend. So, this article provides a decent overview of all the aspects related to the Domestic Violence and also provides some suggestions to curb this rise in the cases of Domestic Violence.

INTRODUCTION

This lockdown to combat the present situation of COVID-19 is a crucial step taken by the Government of India. But as we know, every action has an equal and opposite reaction. This lockdown has brought many challenges in front of our nation, one of which is domestic violence. During this period of the lockdown, the cases of domestic violence have been increased rapidly. The National Commission for Women (NCW) has recorded more than twofold rise in the cases of Domestic Violence during this period. The total number of complaints filed for domestic violence in the month of April 2020 was 315, which was highest since last August. The unavailability of alcohol for addicts and the pressure of meeting necessities were the key factors because of which this rise in cases was witnessed.

DIFFERENT FORMS OF DOMESTIC VIOLENCE

Domestic violence is not only limited to physical abuse, but it also takes various forms in different situations. Some of these forms are:

  • Physical abuse – Threatening or physical assault, including choking, hitting,punching and shoving, smashing objects, throwing objects, and assaulting children. 
  • Sexual abuse – Any unwanted sexual contact, it also includes rape.
  • Social abuse – Isolating partner from society (friends and family), controlling the partner’s movements when going out, denying partner access to the telephone. 
  • Psychological abuse – Verbal and emotional abuse such as humiliation, insults, threats, swearing, harassment, and put-downs. 
  • Economic abuse – Exerting control over household income by prevention the other person’s access to financial independence.
  • Spiritual abuse – Denying religious beliefs or practices to justify other forms of abuse or to force victims into subordinate roles.

LEGAL ASPECT OF DOMESTIC VIOLENCE IN INDIA 

There is a separate Act that governs the cases related to Domestic Violence in India, and it is known as “The Protection of Women from Domestic Violence Act, 2005“. This Act deals with all the provisions related to Domestic Violence broadly and aims to protect females from the brutality by any of her household man and his relatives. 

Apart from this, Section 498-A of IPC also protects the women from being subjected to cruelty by the husband or his relatives. This Section also stipulates a punishment extending to 3 years and fine as may be decided by the court.

ROOT OF THIS PROBLEM

The main hurdle that comes in front of this nation to eliminate this crime is that most of the cases of domestic violence are not even reported because it is very hard for a victim even in the most supportive conditions to report such abuses and this can be proved by taking the stats of National Family Health Survey-III, published in the year 2005. According to this survey, about 37.2 percent of married women faced spousal abuse, but out of this only, 2% approached police stations to sought help. In rural India, this situation is worst because most of the woman in rural India are illiterate and are very much dependent on their husbands who discourage them from filing the complaints. The NGOs which were spreading awareness and acting as a mediator between victim and authorities, making it easier for women to come out of their house and report such abuses are also not able to work because of this lockdown.

LOCKDOWN AND THE CASES OF DOMESTIC VIOLENCE IN FOREIGN NATIONS

Apart from India, many other countries are also facing this surge in the cases of Domestic Violence. Katrin Goring-Eckardt (Germany’s parliamentary leader) in her speech mentioned this issue and said that she is concerned for those women who are trapped with violent partners in this lockdown. In the UK, Mandu Reid (leader of women’s Equality Party) has called for the policy or legal changes to reflect the increased risk to women and children in quarantine. UN Secretary-General, Antonio Guterres also appealed to the governments to pay attention to this horrifying global surge in domestic violence which shows that it’s a “Global Problem” and there emerges an urgent need to protect the victims of Domestic Violence globally.

STEPS TAKEN BY THE GOVERNMENT AND ITS RESULT

To combat this problem, the National Commission for Women (NCW) launched a helpline number – 0721-7735372, which enables the victim to report the crime of domestic violence through a message on WhatsApp. The reason behind using WhatsApp was that it is easier for most of the women to connect on WhatsApp in comparison to E-Mail and this can also be proved by the fact that a total of 40 messages were received in the first two days after the launch of this helpline number. But, in our country, a good percentage of women do not possess smartphones and there is also a lack of availability of internet facilities in remote areas which makes this initiative unavailable for most of the women.

SUGGESTIONS

The Government must implement far-reaching reforms that are inclusive of all women in the country, whether in an urban or rural area. An immediate step should also be taken to spread awareness about all the aspects of Domestic Violence and awareness about the helpline number should also be spread by using various mass media platforms. The Government can also change the legal policies to cope up with this rise in cases of Domestic Violence and can also take steps which other countries have decided to combat with this problem like, in Spain, the Government has proclaimed that the women will not be fined if they leave their house to report abuse and in France, the Government announced to put victims of domestic violence in hotel rooms and it also announced a fund of EUR 1 million to relief organizations working against domestic abuse, to help them to cater the increased number of victims. 

CONCLUSION

The only place where we are safe in this present epidemic is our home but, we can’t even imagine the condition of those women who are not safe in their homes as well. The Government alone is not responsible for solving this problem, but we as a citizen of this nation also have some moral duty to save those women and help them in getting legal aid. Our society generally ignores this problem and pays no attention to this issue, but this issue is like a slow poison which will affect the development of the nation in a long-run, and because of this there emerges an urgent need to protect the victims of Domestic Violence otherwise, the marks of these domestic violence cases will remain for a longer period.


Kapil Devnani is a first year student of Hidayatullah National Law University, Raipur


IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Tukaram and Anr. v. State of Maharashtra

Citations – 1979 AIR 185, 1979 SCR (1) 810

Date of Judgement – 15/09/1978

INTRODUCTION

The case in hand is about the rape of a 16-year-old girl named Mathura. Through this case analysis, I intend to highlight the concerns and issues that have not been dealt with in the original judgement given by the Supreme Court. Firstly, I’ll be posing some critical questions with the help of the analysis provided by Dr. Upendra Baxi and others in their open letter to the Chief Justice of India, which the Supreme Court judgement miserably fails to answer in its judgement. Asking these questions is essential to fully comprehend the significant issues which have not been dealt with and contemplate the path the judiciary takes to dispense its so-called textual idea of ‘justice.’ Next, I will present my arguments, which will analyze the various segments of the present case’s judgement, which are distorted and demand explanation. My analysis of the case will include aspects like ‘authority,’ ‘reliability of the victim’s testimony,’ ‘scope of criminal law,’ ‘gender discrimination based on patriarchal norms,’ difference between ‘consent and submission’ and lastly, ‘structure and agency’ followed by the conclusion.

To start with, I firmly believe that the Supreme Court has not provided any valid or consistent reasons to justify its stand about why the High Court’s reasoning lacks conviction for rape. There are many questions which remain unanswered, like why Mathura, a 14-16-year-old, was in the police station in the “dead hour of the night”; and the Supreme Court raised no concerns as to why she was asked to remain in the police station even after her statement was recorded and her relatives were asked to leave. Additionally, the fact that the lights were switched off in the police station when Mathura was inside, and the doors were shut is not considered.

According to the Supreme Court, the absence of physical marks on her body and no screaming connote sexual intercourse in the police station. However, there is not one mention in the judgement that condemns the use of the police station as a place for submission to sexual intercourse. The Supreme Court, while describing the facts of the case, acknowledges that “Tukaram was seated in a cot nearby” and that he was too intoxicated to rape Mathura. Nonetheless, the fact that Tukaram, the head constable, decided to keep mum and not take a single step in furtherance of protecting Mathura from Ganpat and him being intoxicated in the police station, is not considered material enough to be discussed and criticized in the judgement.

I share my opinion with Upendra Baxi and others in their Open letter to India’s Chief Justice of India[1] on some points. For instance, if an inability to cry out for help and raise the alarm was equivalent to having consensual intercourse, what would be the Supreme Court’s reaction and reasoning if the victim were dumb or gagged?’ The Court stoops so low as to expect Mathura to have marks of physical injury over her body as a ‘visible proof’ of all the sexual harassment she went through. Absence of such marks is henceforth equated to absence of stiff resistance, by the Court, and a hasty conclusion is drawn that Mathura was a person of easy virtue due to her liaison with her lover, accepting the assertion made by the Sessions Judge that Mathura was “habituated to sexual intercourse.” The whole incident of rape narrated by Mathura is an impossible event. Thus, instead of questioning the accused, Mathura herself is suspected, it is her morality and virtue, which is doubted. This shows how a woman’s dignity is accorded a basis through certain pre-defined and desirable standards of conduct established by the society.

Argument I- The notion of ‘authority.’

Authority, in its simplest form, means dominance, which is coupled with ‘fear.’ Fear is something that makes a person turn into a ‘subject’ or rather a ‘victim.’ In the present case, the sense of authority exercised by the two policemen was indeed very gruesome. It was more than enough to produce fear in the mind of Mathura, such that her will or voluntariness got diminished to mere compliance. The act of calling Mathura to the police station in the “dead hour of the night” is enough to instill a sense of fear arising from an authority in the mind of the victim of such a grotesque offense of ‘rape’. Thus, a parallel can be drawn with the case of Nandini Satpathy.[2] It was established that “According to section 160(1) of Criminal Procedure Code, a woman shall not be required to attend police investigation at any other place than her residence. The Court then opined that the very act of directing a woman to come to the police station in violation of section 160(1) CrPC might make for tension and negate voluntariness”. Here it can thus be inferred that the Indian Supreme Court puerilely expects a young girl aged 14-16 years to be fearless, have absolutely no fear of authority, and thus scream and fight two well-built, sturdy policemen when forced into having intercourse.

Argument II- The Court’s reliance on the ‘testimony of the victim.’

The whole judgement consists of combinations of some offensive words such as describing the rape as a “story,” “tissue of lies,” “habituated to sexual intercourse.” Yet, the most disturbing one – “Mathura was a person of easy virtue.” The tone adopted by Justice Koshal and his line of reasoning to conclude appear to be quite insensitive not only towards Mathura but to all young girls in general. The point of significance here is that the focus of the judge stands completely deviated, from evaluating the commission of rape to questioning the sanctity and morality of the victim herself.

Argument III- The ‘scope of criminal law’ in determining the guilt-

Indian law has failed indeed to realize the real essence of the doctrine of ‘burden of proof.’ According to this doctrine, the burden of proof is on the victim to convince the Court that the said offense has been committed to them. However, in this case, the Court failed miserably to comply with this doctrine by leading on both the accused persons. The Court labelled the 16-year-old victim as a promiscuous girl who liked engaging in sexual activities, thereby undermining the difference between sexual intercourse versus rape. While the former is a consensual activity, the latter does not involve consent. Therefore, it can be said that the Court engaged in ‘victim-blaming’ instead of determining the guilt of the accused.

Argument IV- Gender discrimination based on patriarchal norms

The laws of our country are formulated such that it is always the woman, who’s sanctity and purity are doubted. These laws are such because of them being formed at the time of extremely regressive and patriarchal times. Hence, it can be ironically seen that the presence of semen marks on Ganpat’s trousers and his sexual habits are considered of little significance by the Supreme Court. It is dreadful when one reflects on the verdict of Justice Koshal, which appears to have been influenced by a strong taboo against pre-marital sex almost as if it provides a permit to all men, including the policemen to commit rape on young and innocent girls.

Argument V- The difference between ‘consent and submission.’

It appears from the facts stated by the Supreme Court and its holding that Mathura had submitted to the rape as there was no stiff resistance. Therefore, the policemen were not found guilty of rape. Surprisingly, Justice Koshal has focused entirely on Section 375 (3) of IPC, stating that the woman passively submits only when her “consent has been obtained by putting her in fear of death or hurt.” The reasoning and the conclusion of the Court in acquitting the two appellants revolve only around this clause, and it pays no heed to the second clause of Section 375 of the IPC that deals with passive submission, where the sexual intercourse is “without consent” of the woman. The Court fails to appreciate the difference between “consent” and “submission.” The core distinction here is that consent involves submission, but the contrary is not always true.

Moreover, the absence of resistance is not equivalent to or indicative of consent. Even if Ganpat were to be charged under the third component of Section 375, the question of whether there was “consent” remains relevant and crucial. Therefore, the argument put forth by the Supreme Court that only “fear of death or hurt” is capable of vitiating consent for sexual intercourse is ‘flawed.’ Thus, it becomes crystal clear to conclude that according to the facts of this case, there was no consent from Mathura but merely a ‘submission.’ 

Additionally, it is somewhat problematic for the Court to expect that a 16-year-old child, who is fending for herself, by doing manual labor, instead of getting the privilege of education, is capable of understanding the concept of ‘consent.’ The wording of the judgement is disturbing when Mathura’s struggle (evidenced in the form of the nail and bite marks on both the accused) is considered a valid consent merely because she could not say no. The Supreme Court could have interpreted the word “consent” better and in a broader term while giving its verdict.

Argument VI- ‘Structure and agency’ as construed within the society –

Since the establishment, the Indian law portrays the position of a rape victim within the society as someone helpless and vulnerable. This powerful dictum is extremely flawed, vile, and repugnant. It not only degrade the status of women in the society but also shows the typical patriarchal view our lawmakers adopt in today’s times.

 The ‘moral aspect’ of the case has been completely sidelined by Justice Kaushal, by condemning the constitutional rights of a woman. The whole idea of ‘structure and agency’ jumps in here. What agency does a woman exercise in such a situation? The societal structure and framework of suppressing and hiding a rape victim from others, doubting if that victim will be able to get married or not, keeping her locked at home, showing pity and sympathy towards her, all contribute towards the diminishing or rather extinct agency of women in the society. The Supreme Court pays no heed at all to the factors associated with the tender aged victim. Mathura hails from a poor socio-economic status. She lacks the knowledge of legal rights and the access to legal services[3] in such a case, her autonomy in exercising her agency is very bleak. 

CONCLUSION

Considering the several factors that are not considered in the Supreme Court judgement, I agree with the verdict of Bombay High Court because I believe that the arguments presented by Justice Koshal are insufficient and unsubstantial to acquit the two appellants. Mathura, a girl between the age of 14-16 years helplessly surrendered her body to Ganpat, who raped her. This amounts to passive submission under section 375 (2) of the IPC, which is not equivalent to consensual sex. This judgement completely degrades the moral rights of a woman. It shows how the Indian law miserably fails to sympathize with the deep agony of all such women, who, like Mathura, have been sexually harassed and raped.

While this judgement was one of the many unfortunate and disturbing precedents, it is essential to realize that reasoning such as the one adopted in this case results from severe flaws in the understanding the root cause behind the commission of crimes such as rape or sexual harassment. Sexual harassment of women results from the ‘sexual objectification’ of women. Objectification reduces women to their biology as if there is nothing to a woman other than her sex (or her body). Sexual objectification can be attributed to the most challenging and ancient social structure, i.e., patriarchy. It would be an understatement to assume that only men are responsible for patriarchy. Women, too, partake in it by abiding gender-roles and regressive notions such as ‘purity’ and ‘virginity.’ Thus, the need of the hour is to detect and destroy patriarchy from our mindsets. In doing so, we would be doing a service to ourselves and our society and our Criminal Justice system that needs to approach Gender-based crimes through the lens of Reformative justice. 


Kanak Mishra (Author) is a Penultimate Year student at Jindal Global Law School, Sonipat.


[1]Upendra Baxi et al., An Open Letter to the Chief Justice of India (Jun. 28, 2020), https://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf.

[2]Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).

[3]Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

FACEBOOK-JIO DEAL: A CHALLENGE FOR COMPETITION REGULATORS

Kapil Srivastava and Shashwat Singh, both students of Institute of Nirma University discusses the Facebook-Jio deal and its implication on the Indian telecom market.

Introduction

The recent Facebook-Jio deal has had a turbulent effect in the Indian telecom market. A deal estimated to be around INR 43,574 Crore will allow Facebook to acquire a 9.99 percent stake in Jio Platforms, making it the single largest Foreign Direct Investment (‘FDI’) in the Indian telecom sector so far. This move will club Jio’s 370 million users with Facebook’s 250 million users in India. WhatsApp, with a user base of over 400 million in India, has simultaneously partnered with Reliance Retail to propel JioMart; and change the landscape of Indian Kirana (grocery) stores.

However, what is inherently problematic is the concerns this deal raises in terms of competition and privacy. It is paramount to bear in mind that network effect[1] is an intricate part of such global acquisitions. The network effect is essentially the benefits which a large user base of consumers and sellers brings to the corporates by giving them exclusive access to multiple data sources, and subsequently providing them with unrivaled business opportunities. Furthermore, India’s 2019 Draft e-Commerce Policy[2] cautions Lawmakers from disregarding network effects while analyzing mergers and acquisitions as the existence of network effect creates a barrier to entry which infers that it is almost impossible for ‘second-movers’ to enter the market. It became more important for the present deal because Jio is backed by investors with deep pockets who are ready to suffer sustained losses in order to create an eventual predatory market for Jio.

Dat-a Privacy

Data privacy is a big concern because both the companies have shown intent to cross-leverage the e-Commerce platform JioMart and recently approved WhatsApp Pay.[3] There is no denying the fact that Jio will gain access to WhatsApp’s and Facebook’s huge repository of user data, but its potential manipulation by Jio to usher out competitors is a major cause of concern. Moreover, there is a grim prospect of WhatsApp resorting to advertisements to cross-leverage data to Jio.

The 2018 Cambridge Analytica data breach scandal is a testimony to Facebook’s capacity to maneuver user data for nefarious purposes. Currently, neither the Competition Commission nor the Personal Data Protection Bill seems to offer any unambiguous section of legislation to mitigate the possibility of cross-leverage. A compulsory ‘opt-in mechanism’ for the users wherein they allow data sharing in parts or in totality seems to be the only viable option.

In K.S Puttaswamy v. Union of India[4], the Supreme Court of India unanimously held that the right to privacy is a fundamental right and intricate to the freedoms guaranteed under Part Ⅲ of the Constitution. Nonetheless, a disparity exists due to the draft e-Commerce policy’s characterization of data as a public good or a national asset. Meanwhile, global tech companies continue to harness countless data available from developing countries for their own advantage, as highlighted in the UNCTAD’s Digital Economy Report 2019.[5]

Furthermore, recently in the sector of technology and communication, a significant question of mergers and acquisitions (M&A) that arises is whether, in Competition assessment, the data privacy of consumers can be relevant parameter. European Commission (E.C.) in Microsoft/LinkedIn merger held that though privacy matters fell under data protection law, in the assessment of competition, privacy can be considered as a non-price competition aspect in mergers and controls to the degree that consumers considered itself as a substantial factor in the quality of the services offered. Unlike E.C., the Competition Commission of India (CCI) in its WhatsApp order[6] Has shown hesitation to include privacy issues in the purview of the Competition Act, 2002. 

Monopolization of Digital Market

Monopolization continues to be the least consistently enforced area of competition law globally[7], albeit its abuse has led to Competition Law Review Committee (CLRC) discussing a probable provision to penalize a mere attempt to monopolies in the relevant market in its 2019 report[8], herein the digital market. Jio managed to create an anti-competitive telecom market through its unilateral conduct. Its market share grew exponentially, ushering out its competitors gradually. A telecom market initially comprising ten private sector wireless providers diminished to three with companies overburdened by a cumulative debt[9] amounting to ₹ 7.7 lakh crore and revenue under ₹ 2.5 lakh crore. The European Union (‘E.U.’) and the U.S. have differed on the assessment of unilateral conduct, with the former approving a more interventionist approach[10] triggering a debate around multilateral competition rules.

Currently, there are no binding multilateral competition rules. There is a general consensus that competition law and policy should “protect competition, not competitors[11] However, the existing legal framework inhibits e-Commerce websites or telecom companies from suing Facebook or Jio in their respective jurisdictions. Commonalities existing in national competition regimes can be used to create measures which include prohibitions against cartels, control on mergers and acquisitions based on their anti-competitive nature, and suitable action against such firms.

Breach of Level Playing field

The Apex Court of India in Reliance Energy Ltd. v Maharashtra State Road Development Corp. Ltd[12] held that ‘level playing field’ is a significant factor to be kept in mind. Reliance Jio and Facebook both are ‘Data Elephants’ in terms of regulating private data of Indians, together if combined, would undeniably give an undue advantage to these companies. 

Therefore, the sharing of data may be big trouble for different players in the market as well as the regulatory authorities. As a result, the agreement of data-sharing must be given effect with full transparency by sharing the details of which with the government and customers. To avoid concentration of market control, CCI must scrutinize every aspect of data sharing in this deal as data of the consumer has become one of the most essential aspects of competition in any market. 

In addition, both firms have a business undertaking that could compete with each other. This also raises serious concern if it is seen through the lens of antitrust laws in India. In the field of E-commerce currently, Reliance functions in its online space through Ajio while Facebook has its own Marketplace, On the payment side to there is overlap Reliance already has Jio Money while Whatsapp lie in wait for government nod, Jio tv, and Facebook watch, Jio chat Facebook messenger is more or fewer competitors in their respective areas. Therefore, the coming together of both the giants would definitely give an undue advantage against its rivals, be it technology giants or local startup.[13] 

Any agreement which prevents any enterprise or association from entering into any such agreement which causes or is likely to cause an appreciable adverse effect on competition within India is void under section 3(1) of the competition act 2002. Therefore if CCI found this data-sharing agreement between two companies is anti-competitive, the same will be held to be a void agreement.

Conclusion

A comprehensive analysis of the deal suggests that it is crucial to amend the Competition Act in favour of penalizing a potential attempt to market monopolization to alleviate the concern of the competitors in the digital market, lest investors with deep pockets continue to create a monopoly over the market. The report of Competition Law Review Committee 2019 has recommended non-monetary considerations like personal data and preferences revealed to digital market players to come under section 2(o) of the Competition Act, 2002. Data privacy concerns can only be mitigated by reaching a consensus on binding multilateral cooperative rules, enforceable on the participating countries by recognizing their mutual competition rules, and therefore, it may be opportune for the CCI to consider the privacy concern as a relevant parameter in competition assessment. 


Kapil Srivastava and Shashwat Singh are law students of Institute of Nirma University, Ahmedabad


[1]World Economic Forum, Competition Policy in a Globalized Economy (December 2019), http://www3.weforum.org/docs/WEF_Competition_Policy_in_a_Globalized_Digitalized_Economy_Report.pdf

[2] Draft National E-Commerce Policy, India’s Data for India’s Development, (June 30, 2020, 22:36 PM) https://dipp.gov.in/sites/default/files/DraftNational_e-commerce_Policy_23February2019.pdf

[3]Soumeet Sarkar, Facebook To Invest $5.7 Billion In Mukesh Ambani’s Jio Platforms, Bloomberg Quint,(April 22, 2020, 1:51 PM),  https://www.bloombergquint.com/business/facebook-jio-deal-facebook-to-invest-dollar57-billion-in-mukesh-ambanis-jio-platforms

[4]Justice K.S. Puttaswamy (Retd) v. Union of India. (2018) 4 SCC 651.

[5]United Nation Conference on Trade and Development, Digital Economy Report 2019, https://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=2466

[6]Vinod Kumar Gupta v. WhatsApp Inc, 2017 CompLR 495 (CCI).

[7]UNCTAD/ITCD/CLP/Misc.14 

[8]Ministry of Corporate Affairs, Report of the Competition Law Review Committee, 100, (2019).

[9]Going Digital: People, Places, Things, Cellular Operators Association of India (COAI), Annual Report 2017-18, https://cdn.coai.com/sites/default/files/Annual%252520Report%252520COAI%2525202017-18.pdf

[10]E/LC(05)/C728/no.2 

[11]“World Economic Forum, Global Value Chain Policy Series: Competition, 2018, p. 4. https://www.weforum.org/whitepapers/global-value-chain-policy-series-competition-ad360d8f-fcf6-4d91-89fe-27453427bb14

[12]Reliance Energy Ltd v. Maharashtra State Road Development Corp Ltd. [2007] 8 SCC 1.

[13]Surabhi Agarwal, Devina Sengupta, Anandita Singh Mankotia, Facebook-Reliance Jio deal to go to CCI, Trai may also step in, The Economic Times, (April 23, 2020, 11.18 AM) https://economictimes.indiatimes.com/tech/internet/deal-to-go-to-cci-trai-may-also-step-in/articleshow/75306062.cms?from=mdr

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

RGNUL Students File Complaint Before NHRC Against ‘Unjust’ And ‘Disproportionate’ Fee Being Charged

The State’ Cheif Minister and other concerned authorities wrote a letter addressing the Chief Justice of the Punjab and Haryana HC to grant fee relief for students of the Rajiv Gandhi National University of Law (RGNUL) in light of the COVID-19 pandemic and ensuing financial difficulties. The letter signed off by over 720 students of RGNUL points out that amid the COVID-19 pandemic and the consequent damage to the Indian economy, many parents/ guardians find it difficult to pay the fees for the next semester.

It is also mentioned that due to the premature closure of the campus amid the pandemic, a major portion of the fees paid for the summer semester remain unutilised. The letter adds that the students are conscious of the University’s liability to remunerate teaching/ non-teaching staff and other expenditure to be incurred regardless of the University’s closure.

All the same, the letter highlights that, “it does not seem rational and prudent to charge the fees for entire semester while the routine in-campus activities have been functional for just one and a half months. Further, the teachers have conducted classes and internal assessment for the semester through various online mediums. Hence, we assert that our request for the relief(s) is without prejudice to the portion of fees which are being spent by the University on salary remuneration to teaching/non-teaching staff.”

In this regard, it is also noted that fees such as Mess Fees, Moot Court Fees, Campus Development Fund, Heath Centre Fees, Gym facility Fees, etc. will not be utilized during this period. Further, it is noted that there would no requirement to incur internet, electricity, water and other utility charges as usual.

The students have, therefore, urged the concerned authorities to consider granting the following forms of fee relief, i.e.
• Exemption of Annual Increase in Tuition Fees for the next academic session; and
• Rebate in Late Fees (if any) applicable on payment of fees; and
• Partial Refund of ‘Fees’ already paid in lieu of the Balance (‘Fees’ including but not limited to Amenities Fee, Moot Court Fee, Mess Fee, Campus Development Fund, portion of Hostel Rent which remain underutilized).

(BY- SAMARTH GOGIA)

CHINA MAY GET IMMUNITY AGAINST ANY PROSECUTION RELATED TO COVID-19

As the COVID-19 pandemic has kept on negatively affecting the worldwide economy, a few nations are wanting to sue China for causing budgetary issues and a wellbeing emergency in their nations.

Nations like the US, India and Nigeria have censured China for neglecting to take prudent steps to stop the infection spreading comprehensively. At the hour of composing, 217,000 individuals have passed on because of the infection and the pandemic’s worldwide expense could run from US$2 trillion to US$4.1 trillion – 2.3-4.8% of worldwide (GDP).

Be that as it may, under global law, such a legitimate move is unthinkable. It is likewise not key, given China’s rising status as the new politically influential nation. Suing China for the COVID-19 pandemic is legitimately inconceivable under worldwide law. A rule created during the beginning of English rulers that “The King can’t be blamed under any circumstance”, called the Sovereign Immunity rule, forestalls the legislature or its political regions, divisions and offices from being sued in common or criminal suit.

In the current day, the standard methods no nation can be sued without its assent in local and worldwide courts. This implies China would need to agree to have prosecution recorded against it before it could be sued.As one of the world’s greatest banks, China holds, for instance, about 20% of the all out obligation in Africa. Accusing China is to chance making a circumstance where helpless countries experience difficulty getting credits in future. Similarly significant, China is the world’s driving wellspring of clinical supplies expected to control the infection, including careful veils. On the off chance that an antibody is ever evolved, China will likewise be a significant player in its creation, circulation and perhaps its development. Accordingly, it is foolish to censure China’s deception too uproariously. The Chinese government bears some obligation regarding the pandemic, yet we despite everything need its help to battle the infection.

(BY- ADARSH KHUNTIA)