Prurient gestures to children is sexual assault under Section 7 POCSO: Delhi High Court

Lascivious activities such as pulling down the leggings of a child victim and touching of the thighs is apparent of sexual intent and thereby forms an offence of sexual assault according to Section 7 of Protection of Children from Sexual Offences Act, 2012, Delhi High Court has held (Rajender vs State) . The judgment was declared by a single Judge Bench of Justice Sanjeev Sachdeva opposing the order of conviction issued by the Trial court against the Appellant. The Trial Court had condemned the Appellant for the affiance under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was imprisoned to undergo Rigorous

Imprisonment for a period of 5 years and to reimburse of Rs. 10,000.
The Appellant confronted that the entire complaint was an appendage of a loan transaction between the Appellant and the mother of the victim. It was disputed that there lied divergence of the contention of the victim and the statement of the prosecution was unreliable. The Prosecution disputed that the affidavit of the child victim and her brother were admirable and there was no evidence of any loan transaction. The Court notified that the Prosecution had presented 8 witnesses and scrutinized the depositions of the two children and their mother as recorded by the Trial Court .

The Court perceived that the Appellant had not effectively uphold any reason as to why the testament of the two children should be repudiated. In terms of Section 9 (m) of the POCSO Act, since the sexual assault was committed on a child below the age of 12, it would amount to exasperated sexual assault punishable under Section 10 of POCSO Act. The appeal was thereby dismissed.

(BY- VASUNDHARA DHAR)

THE NATIONAL INVESTIGATION AGENCY PLANNING TO FILE CLOSURE REPORT IN ITALIAN MARINER’S CASE

The National Investigation Agency (NIA) plans to close its case against Italian marines for killing two Indian fishermen off the Kerala coast in 2012, two officials familiar with the matter said on Saturday.
This comes after the Centre on Thursday asked the Supreme Court to dispose of the matter related to the jurisdictional issues of the case as it has agreed to accept a UN tribunal’s ruling that the two marines cannot be prosecuted. The five-member arbitral tribunal, under the UN Convention on the Law of the Sea, said India is entitled to compensation in the case but said the marines deserve immunity and that India is “precluded from exercising its jurisdiction”.
The officials cited above said they will file a closure report in the case in a few weeks after getting a go-ahead from the Union home ministry. “The case is more or less null and void now,” an official said on condition of anonymity.

(BY- ANUPAMA SOUMYA)

Madras HC issues notice on Plea seeking online booking facility for Railway concessional tickets

In response to the PIL filed by Dr. Mohamed Khader Meeran, a native of Trichy, The Madras High Court on Friday issued a notice to the Ministry of Railways and the Railway Board online booking facility for concessional tickets in the official website of IRCTC.

A division bench of Justice Subbaiah and Justice Krishnan Ramaswamy has asked the Railway Board and the Central Government to respond within four weeks.The petition argued that announcing a special concession for the patients and not providing the facility for availing concession is not fair.

The patients suffering from Kidney or Heart diseases are at most risk if they visit reservation counter to avail concession during this Corona pandemic. Hence, the IRCTC website needs to be changed accordingly so that the people can avail concession on online reservation.

(BY- SAMARTH GOGIA)

HUMAN RIGHTS ACTIVIST, LAILA SOUEIF QUESTIONS THE EXISTENCE OF IMPRISONED AND CONVICTED ONES IN EGYPT

The need of a letter from those who are already sentenced inside the walls of prisons of Egypt to mark their existence. This was the straightforward solicitation composed on a bit of paper by Laila Soueif, 64, an Egyptian educator and long lasting human rights lobbyist as she sat on the check that licks around the rankling pot that is the passageway to Cairo’s infamous Tora jail.

The little and harmless interest to get notification from her imprisoned child Alaa Abdel-Fattah, 38, a product specialist and driving voice of the 2011 unrest, was a lot for the Egyptian specialists.

Egypt had stopped all jail visits since the episode of the coronavirus in March. It has stressed numerous families, especially as the Geneva-based Committee for Justice announced that there have been Covid-19 cases present in almost 30 detainment communities across 10 govern orates, including Tora jail. Self-assertive and politically persuaded captures have taken off since al-Sisi, at that point safeguard serve, held onto power in July 2013 from Egypt’s first justly chose president, Mohamed al-Morsy. An Interior Ministry official in July 2014 recognised that specialists had captured 22,000 individuals over the earlier year. The Egyptians for Economic and Social Rights, which autonomously screens political captures, said that the number was increasingly similar to 41,000 captured or dealing with criminal indictments starting last May. There is little uncertainty that Muslim Brotherhood individuals and affirmed supporters of Morsy established the best number – Brotherhood pioneers said 29,000 of their number were in care. Yet, the capture crusade incorporates various secularist and radical activists too.

What’s more, obviously once in authority they are dependent upon a similar maltreatment and extreme congestion. As indicated by an examination distributed in Al Watan, an autonomous every day that by and large backings the administration, drawing on insights from the Justice Ministry’s Forensic Medical Authority, at any rate 90 detainees died in police custody in Cairo and Giza govern orates in the initial 11 months of 2014, from harsh conditions, absence of satisfactory social insurance, and at times torture.Sending Egyptians to jail for basically practicing their privileges to opportunity of articulation and quiet get together is probably going to turn out to be progressively broad under the new “fear based oppressor substances” order gave on November 26. It characterizes “fear based oppressor” in remarkably expansive terms: notwithstanding language about savagery and dangers of viciousness, the law covers any offence that in the perspective on specialists “hurts national solidarity” or the earth or common assets, or obstructs work of open authorities or use of the constitution or laws. A “fear monger” is any individual who supports such a substance – support, that can incorporate “giving data.” Imagine the trawl that can be thrown if “giving data” that “hinders crafted by open authorities” or “use of the Constitution” comprises a psychological militant offence.

(BY- ADARSH KHUNTIA)

Supreme Court Advocates-on-Record Association has requested to the Secretary General to improve the functioning of Virtual Courts.

Amid this pandemic situation and Courts working virtually, the Supreme Court Advocates-on-Record Association (SCAORA) has written down a letter addressing to the Secretary General stating that “there have been many grievances” with regard to the technical issues surrounding Virtual Courts in terms of connectivity and glitches, there has no “proper redressal” even after timely complaints have been registered via email and through calls to helpline no 1881.

To which there should be a proper installation and “sufficient video conferencing facilities” to be set up at the Supreme Court premises.

(BY- SANYOGITA)

Surrender can never be interpreted to consensual sexual activities : Kerala HC upholds conviction of a rape accused

The Kerala High Court has perceived that only those sexual intercourse which are permitted could be interpreted as not in contravene to the rights of the victim, and welcomed as concordant. The case against the prosecution was that, he committed rape on the victim girl, a minor aged 14 years belonging to a Scheduled Caste, and impregnated her. The Trial Court held him guilty of the offence punishable under Section 376 of the Indian Penal Code. It is evident from the petitioner’s contention the age of the victim girl and failed to held that this case comes under the purview of the the definition of ‘rape’ in terms of Section 375 of the IPC. Justice PB Suresh Kumar observed that mere action of forbearance in the light of unavoidable obligation, dormancy, stoical or submitting, when preference is either clouded by fear or comprised by coercion, cannot be estimated as giving consent

The Court added that the Sexual assaults including rape are crimes of gender inequality. In ground reality, sex that is actually desired by a woman is never termed consensual, for when a sexual interaction is equal, consent is not needed and when it is unequal, the consent doesn’t amount to equality in opinions. The bench touched on to a judgement of the United States Supreme Court in Meritor Savings Bank, FSB v. Mechelle Vinson et al. [477 US. 57 (1986)] , which it was held that agreeableness and not consent, shall be the basis for sex that does not infringe the rights of women congruence with gender equality.

The Kerala High Court dismissed the appeal and ratifying the conviction of the accused.

(BY VASUNDHARA DHAR)

KARNATAKA HC SETS UP SPECIALLY DESIGNED COURTS TO MINIMIZE COVID-19 RISK

With advent of high risk of COVID 19 spread in Trail courts; Karnataka High Court has setup specially designed courts with transparent partitions; where arrested persons or under trail prisoners can be produced physically; this special remand courts are established at Guru Nanak Bhavan in Vasanth Nagar which is situated one kilometer away from Karnataka High Court.

Under trail Prisoner are required to be produced in court physically before the Magistrate. All safety measures for the physical production of arrested prisoners have been facilitated while Karnataka High Court read out the order it also opined all the safety measures will be taken and judicial officers and staff member’s health and safety will not be compromised.

(BY- SIDDHARTH ADDY)

THE LOCKDOWN: LAW STUDENTS & EDUCATION

Aashi Sharma, a 4th year student of Vivekananda Institute of Professional Studies, Guru Gobind Singh Indraprastha University, New Delhi analyzes the impact of the pandemic on education sector.

Introduction

The new normal is living with Coronavirus. It is transforming every sector from the food industry to agriculture to education, etc., hardly any industry is left untouched by the impact of the pandemic. It is wisely said that to cope up with the change, one should learn to adapt as fast as possible. The current situation is asking every sector to transmute at a faster pace.

Highlighting specifically the education sector, it has changed drastically after mid-March affecting it at every level, from kindergarten education to higher education. The education system in India has taken a sudden halt and is moving towards an unprecedented path. Soon after the detection of Coronavirus cases in India, the Law colleges/institutes around the country were shut down. Despite the given circumstances, many students got an opportunity to step out and lean against the conventional ways. Unsurprisingly, some students were unable to avail the opportunities due to varied reasons. The change has proved to be transformative as the whole education system found space on various online portals. 

Transformation

In India, people in the legal fraternity have been deprived of technology whether we talk about the functioning of courts or teaching methods in the classroom. Some are not comfortable; some are unable to use it, and many are unaware of the new technologies. The traditional ways were in the mainstream. Despite all this, technology eventually engulfed the education system making everyone equipped with gadget rapidly after the advent of Coronavirus, which paves a path towards e-learning. Between all this, the condition of students in the rural areas and from poor sections worsened after the lockdown. Lack of proper access to the internet and not possessing required devices adversely impacted their studies.

The Laws in our country are mostly archaic, and so are the ways of acquiring knowledge. Still, the lockdown period turned out to be an opportunity to bridge the gaps in knowledge as the interactions between students and teachers adopted online mediums like Zoom, Google Meet, Webex Meet, Google Classroom etcetera. The education from a particular institute was not just limited to the students of that institute but was available nationwide. Apart from this, the lockdown period also brought an opportunity for the students to grab some valuable information from eminent personalities like Judges of Supreme Court & High Courts, retired Judges, Senior Advocates, CEO of top law firms’ etcetera. Various webinars, MOOCs, etc. were conducted by many colleges, organizations, law firms, etc. which immensely benefited the students. Also, research has majorly moved from the library to online platforms. 

Ministry of Human Resource Development (MHRD) had already taken many steps to digitize the education system through the introduction of various portals (mentioning particularly for law students) like Swayam, e-Pathshala, National Digital Library.[1] Soon after the lockdown, the ministry worked towards its improvisation.[2] Students unaware of such platforms were brought an opportunity to learn through unconventional ways. Not just this but various other free courses provided by MOOC platforms like Edx and Coursera enabled students to nurture their legal knowledge. Institutions like Harvard, Yale, Australia University, etc. are providing valuable study material for the law students on these platforms. It, however, is not sufficient to achieve the desired goal of digital learning across the nation. Now, the question arises concerning the students who were unable to access the e-study material and other e-learning facilities. The National Sample Survey Office (NSSO) of the Ministry of Statistics and Programme Implementation, Government of India, surveyed from July 2017 -June 2018. The data says that the percentage of households that possess computer (Computer included devices like, desktop computer, laptop computer, notebook, netbook, palmtop, tablet (or similar handheld devices) excluding smartphones) is only 10.7%. Only 23.8% of households have access to the internet (Internet accessed via devices like desktop, laptop, palmtop, notebook, netbook, smartphone, tablets, etc.). Only 16.5% and 20.1% of people aged 5 and above were able to operate the computer and use internet respectively.[3] 

“Reconstruction of study material is required by the higher education institutions. It should be done in a way, which is compatible with e-learning and to achieve the desired objectives”, says Dr Shakila Shamsu (Former Officer on Special Duty (New Education Policy), Department of Higher Education, Ministry of Human Resources Development, GOI).[4]

Apart from all this, there had been a negative impact. Students were affected mentally, psychologically and even physically. One such example is, due to industrial shutdown and economic slowdown, it has been seen that the students in their final year of higher education are adversely affected. The job offers were withdrawn in this sector, and many even lost their jobs. On the other hand, internship opportunities have grown tremendously as people are looking for cheaper labour to circumvent the situation.

Conclusion

Perhaps an opportunity lies in the crisis which may be availed by taking various effective steps in the right direction. Crisis is expected to set the advent of a blended education system in the coming future. The students will be able to have physical interaction combined with the virtual interaction and will not be deprived of digital learning. The continual practise of such digital interactions in future will avail students to bridge the gaps in their knowledge.

If online learning works well in the coming future, then colleges can offer more than just classroom knowledge. Individuals can learn through online platforms. The elite institutions and faculties in the country can accommodate more students through digital platforms, and hence, an increased number of students will be able to enrich their knowledge in the guidance of such experienced people. 

Privatization leading to educational inequality due to which education had taken the form of business where education is being traded, and the students were just the consumers. This destructive factor might gradually deplete with the upcoming digital learning and could let the students avail best of knowledge across the globe at a lesser cost. 

The opportunity is on the plate to promote collaboration through e-conferencing and various other modes at a lower cost. The isolated study culture and closed teaching community in India can open up to collaborative study and research through digitization. 

The stepping stone is needed for the required change, albeit it is not an overnight process. The future is unknown, and we don’t know till when we will have to stay with it. This is the time to avail the opportunity and transmute the system. The changes made today will be seen giving results after a decade or so, but things will change for the better. Let’s get equipped to leave the conventional and to train and adapt to the new normal. 


Aashi Sharma is a fourth year student from Vivekananda Institute of Professional Studies, GGSIPU, New Delhi.


Press Information Bureau, Government Of India, Variousinitiativeshavebeentakentopromotedigitallearningunder‘Nationalmissiononeducationthroughinformationandcommunicationtechnology’ (05.06.2019), https://mhrd.gov.in/sites/upload_files/mhrd/files/ru1470.pdf.

Ministry of Human Resource Department, Government of India, Indian National Commission For Cooperation With UNESCO response To COVID 19 (06.06.2020), https://mhrd.gov.in/sites/upload_files/mhrd/files/inccu_0.pdf.

National Sample Survey Office of Ministry of Statistics and Programme Implementation, Key Indicators of Household Social Consumption on Education in India (July 2017-June 2018), http://mospi.gov.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf.

Ananya Koppikar Murthy, Online Higher Education in India during the COVID-19 pandemic (26.05.2020), https://www.orfonline.org/research/online-higher-education-in-india-during-the-covid-19-pandemic-66768/.

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

CENTRE DIRECTS SC FOR CESSATION OF CASE AGAINST ITALIAN MARINES AFTER INTERNATIONAL TRIBUNAL’S DECISION

The Centre has proceeded the Supreme Court attempting termination of judicial proceedings against two Italian marines’ charged for killing two Indian fishermen, off the Kerala coast, stating that it has considered the recent ruling of the Permanent Court of Arbitration (PCA) at the Hague which held that India is entrusted to get reimbursement. India had held two Italian marines, Salvatore Girone and Massimiliano Latorre, on board the MV Enrica Lexie — of murdering two Indian fishermen who were on a fishing vessel off Kerala coast in India’s Exclusive Economic Zone (EEZ).

The exemptions relished by the Marines employ as a deviation to the jurisdiction of the Indian courts therefore prevent India from performing its jurisdiction over the Marines. It cancelled Italy’s profess to reimburse for the restraint of the Marines. India being a member to the UNCLOS, in compliance with the regulations of the UNCLOS and the Rules of Procedure agreed by the Parties, the Award is ultimate and shall be in accordance with by the parties to the dispute (Article 11, Annex VII, UNCLOS) . The remonstrance against the marines was filed by Freddy, the owner of fishing boat ‘St Antony’ in which the two Kerala fishermen were killed when the marines unfasten fire on them allegedly under the misapprehension that they were pirates. The top court was previously well aware by the Centre that the international arbitral proceedings would be concluded by December 2018 before the International Tribunal for Law of the Sea in Germany. The apex court had earlier stayed all criminal proceedings, including the trial of the two marines. The apex court stated that the proceedings would remain obstructed till the jurisdictional issue about which nation has the right to conduct trial was expressed through international arbitration.

(BY- VASUNDHARA DHAR)

GOOGLE PAY IS A NOT A VERIFIED PAYMENT OPERATOR – RBI TO DELHI HC

In the leading case of Abhijit Mishra v. RBI & Ors, Reserve Bank of India affirmed that Google Pay is only a Third-Party App Provider, before the Delhi High Court. The revelation constitutes RBI’s testimony lodged in a PIL seeking a command to the Reserve Bank of India to instantly halt the uncertified functioning of Google Pay in India.

The petitioner claimed that it is an unauthorized entity in terms of section 4(1) of the Payment and Settlement Systems Act, 2007 (PSS Act). Google Pay did not feature in RBI’s list of authorized ‘Payment System Operators’ in India. The contention also asserted that Google Pay was wholly in violation of Section 15 (4) of the Ombudsman Scheme for Digital Transactions, 2019 as it had not allotted any Nodal officer.

RBI brought to notice that Google pay is not a verified payment system operator and elucidated that PSS Act and the misdemeanours would not be considered. The Court was notified that Google Pay was a Third-Party App Provider with four sponsor banks and therefore did not needed any mandatory registration under PSS Act and it did not came under the purview of Ombudsman Scheme for Digital Transactions, 2019. Althoug the four banks came under the Banking Ombudman Scheme 2006.

Contrasting to it, RBI further concluded that according to the National Payments Corporation of India’s communication, Google Pay was in objection with the prerequisite of RBI circular on storage of data related to the payment system in India. In light of the matter, RBI has egged on the Court to dismiss the petition.

(By – Vasundhara Dhar)