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.

Introduction

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.

[29]Supra, note 22.

[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

[35]Supra, note 19.

[36]Supra, note 23.

[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).

[47]Supra, note 39.

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

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.

Introduction

“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.

Statistical analysis

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.

Conclusion

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.

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

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.

Introduction

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.

Conclusion

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. 

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

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.

Introduction

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?  

Conclusion

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.  

[6]The Personal Data Protection Bill, 2019, Bill No. 373 of 2019 (India), § 25. 

[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

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

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.

I. Introduction

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.

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

CONSUMER PROTECTION IN TIMES OF PANDEMICS: AN ANALYSIS OF THE COVID-19 SITUATION

Bhawna Lakhina and Nishi Bhamkar, both 2nd year students of National Law Institute University, Bhopal analyzes business malpractices and consumer protection in the times of COVID-19 pandemic.

Introduction

The COVID-19 pandemic has taken a toll on the lifestyles of people across the world. It has forced a change in consumer habits in the most striking sense. Essentially, it has led to a rise in the number of first-time-e-commerce-users (FTUs), increasing with it the chances of online fraud.[1]

There has been a rise in the demand for essential commodities as compared to other products. People are grappled with the uncertainty regarding the availability of such products and are thereby compelled to make peace with unfair business practices adopted by the manufacturers and sellers.

In this blog, the authors have attempted to analyse all plausible ways in which consumers can be protected from business malpractices being adopted amidst the pandemic by manufacturers and sellers of essential commodities. The first part of the blog provides an in-depth discussion on the various unfair trade practices adopted by manufacturers and sellers of essential goods. The second part of the blog analyses the measures adopted by the government authorities to handle the situation at hand.

Business Malpractices: A Masked Pandemic

The most glaring among the various business malpractices faced by the consumers today includes price hikes, hoarding, black marketing and false advertisements.[2] While the initial rise in the prices of essential commodities was due to a shortage in the availability of such goods, the United Nations Conference on Trade and Development (UNCTAD) has confirmed that suppliers are now deliberately engaging in practices like hoarding and black marketing leading to an upsurge in prices.[3] Furthermore, there has been an increase in false advertising claims made by companies, i.e., advertisements which claim that their products are capable of eliminating/reducing the coronavirus infection.[4]

There has also been a rise in instances of unfair trade practices such as wrong or incomplete deliveries and issues with the quantity and quality of goods. Further, consumers are exposed to fraudulent websites, especially designed to phish information from them.[5] Adding to the plight of the consumers was the notification issued by the National Consumer Disputes Redressal Commission (NCDRC) adjourning all non-urgent matters till 15th April, 2020, thus, adding to the backlog.[6]

In this uncertain environment, e-commerce websites prima facie appear to provide some respite to consumers. Websites such as Amazon have tried to do away with sellers selling fake products that claim to cure the virus.[7] Similarly, Google has started to closely monitor advertiser’s behaviour to protect users from advertisements looking forward to taking advantage of the COVID-19 crisis.[8] However, it has been pointed out that contrary to the claims made by such websites, malpractices have been committed by them wherein they have misused their dominant positions to engage in exclusive trading of essential products.[9]

The government and relevant regulatory authorities have undertaken measures to deal with the problems faced by Indian consumers as a result of the pandemic.

Steps Undertaken by the Government and Regulatory Bodies 

The Consumer Protection Act, 2019, is a positive step towards consumer welfare as it has the potential to bring e-commerce transactions under its jurisdiction. The new guidelines on e-commerce issued under the legislation seek to prevent fraud and unfair trade practices and protect the legitimate rights and interests of consumers.[10]

The guidelines mandate e-commerce entities to register themselves under the prescribed laws, and follow provisions of the IT (Intermediaries Guidelines) Rules, 2011, and conform to the Reserve Bank of India (RBI) guidelines for payment facilities.[11] It also includes provisions against misleading advertisements, and provisions for the return of products in cases of wrongful or improper delivery[12], and stipulates other liabilities of the seller.[13] All disputes under the guidelines are to be directed to the respective consumer courts.[14]

Further, the Union Ministry of AYUSH has taken crucial steps in the direction of curbing misleading advertisements. It issued an order under Section 33P of the Drugs and Cosmetics Act, 1940, directing the authorities concerned to prevent false AYUSH related claims of products being corona resistant.[15] Further, the Advertising Standards Council of India (ASCI) is engaged in monitoring and reporting such advertisements.[16] Additionally, the Cable Television Network Regulation Act and Rules, 1994, prohibit deceptive advertising and, thus, could be used to ban advertisements violating the Code for Self-Regulation, formulated and adopted by the ASCI.[17]

After the recent move by the Ministry of Consumer Affairs declaring hand sanitisers and protective masks “essential commodities” and capping their maximum retail price under the Essential Commodities Act, 1955, the government is now trying to take measures to curb black marketing and hoarding.[18] Statutory provisions exist in this regard. For instance, the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, empowers the government to detain any person found to be committing or instigating any offence punishable under the Essential Commodities Act, 1955, or dealing in any essential commodity to make a gain.[19]

The Competition Commission of India (CCI) has come to the forefront and cautioned business enterprises from taking advantage of the COVID-19 situation.[20] It has declared that the accrual of benefits to consumers, improvement in production or distribution of goods or provisions of services along with the promotion of technical, scientific and economic development will be taken into consideration while assessing competition under Section 19(3) of the Competition Act, 2002.[21] This section lists the factors that may be taken into consideration to determine whether an agreement has an appreciable adverse effect on competition or not. Thus, companies and competitors can now share resources such as distribution network and infrastructure, transport logistics, and production without fear of adverse action or scrutiny as long as it results in increased efficiency and consumer welfare.

Conclusion

The pandemic has significantly increased concerns of malpractices committed by business enterprises, thereby placing consumers in a vulnerable position. In such a context, the government has taken important steps for consumer protection. Though these measures are a step in the right direction, firmer actions are needed towards safeguarding consumers at this point in time.

In this regard, the UK Competition and Markets Authority (CAM) has prepared a taskforce especially aimed at consumer protection amidst the pandemic.[22] Similarly, given the critical state of consumer affairs in India, the government must prepare a task force designed to clamp down business enterprises indulging in unfair trading practices and scrutinise the market situation to prevent harmful sales and pricing. Such a task force would enable the authorities to provide easy and quick responses towards consumer grievances as it would effectively keep a check on any instance of infringement of fair competition and consumer protection guidelines. 

At the same time, it is important that consumers discourage any malpractice on the part of the business enterprises. Any instance of unscrupulous trading must be reported to the relevant authorities. This is because legal measures addressed to safeguard consumers stand futile without consumer activism. In this respect, consumer awareness measures must be undertaken regarding recent steps taken by the authorities concerned to prevent unfair trading practices. This would inculcate confidence amongst people that their grievances will be redressed and lead to the much-needed assurance and credence in the minds of the consumers.


Bhawna Lakhina and Nishi Bhamkar are Second year students from National Law Institute University, Bhopal.


[1]Filip Truta, Surge in Online Shopping Drives Major Increase in Coronavirus-Themed Fraud Attempts, Security Boulevard (June 9, 2020, 10:28pm), https://securityboulevard.com/2020/04/surge-in-online-shopping-drives-major-increase-in-coronavirus-themed-fraud-attempts/.

[2]E-Commerce, Trade and the COVID-19 Pandemic, WTO (June 6, 2020, 14:15pm), https://www.wto.org/english/tratop_e/covid19_e/ecommerce_report_e.pdf.

[3]Teresa Morera, Head, UNCTAD Competition and Consumer Policies branch (June 5, 2020, 15:18pm), https://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=2326.

[4]Pushpa Girimaji, As Covid-19 peaks, beware of advertisers peddling false claims regarding the virus, Hindustan Times (June 8, 2020, 18:19pm), https://www.hindustantimes.com/cities/as-covid-19-peaks-beware-of-advertisers-peddling-false-claims-regarding-the-virus/story-Gfj9VnT4A6vMJJxyx9bgSN.html.

[5]Mohammed Faisa, From fake apps to phishing mails, how Covid-19 is affecting our tech lives, TheIndian Express (June 8, 2020, 16:18pm), https://indianexpress.com/article/technology/tech-news-technology/coronavirus-scams-fake-apps-phishing-mails-who-identity-theft-fake-products-6307017/.

[6]National Consumer Disputes Redressal Commission, Circular (June 7, 2020, 19:10pm), http://ncdrc.nic.in/pdf_Files/circular16032020.pdf.

[7]Jon Porter, Amazon has barred a million products for making false coronavirus claims, The Verge (June 16, 2020, 17:10pm), https://www.theverge.com/2020/2/28/21157629/amazon-coronavirus-products-misleading-false-claims-price-gouging-face-masks.

[8]Google purged 2.7 billion bad ads in 2019, COVID-19 fake ads next target, Brandequity (June 11, 2020, 13:17pm), https://brandequity.economictimes.indiatimes.com/news/advertising/google-purged-2-7-billion-bad-ads-in-2019-covid-19-fake-ads-next-target/75466748.

[9]All India Online Vendors Assn. v. CCI, Company Appeal (AT) No. 16 of 2019.

[10]Advisory to State Governments / Union Territories: Model Framework for Guidelines on e-Commerce for consumer protection, Ministry of Consumer Affairs, Food and Public Distribution (June 12, 2020, 18:19pm), https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Guidelines%20on%20e-Commerce.pdf.

[11]Consumer Protection (e-Commerce) Guidelines, 2018, §3.

[12]Consumer Protection (e-Commerce) Guidelines, 2018, §4.

[13]Consumer Protection (e-Commerce) Guidelines, 2018, §5.

[14]Consumer Protection Act, 1986, §9; Consumer Protection (e-Commerce) Guidelines, 2018, §6.

[15]Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH), Order F. No. Z 25023 /09/2018-2020-DCC (AYUSH) (June 17, 2020, 16:19pm),https://www.ayush.gov.in/docs/121.pdf.

[16]COVID-19: ASCI says keeping tab on ‘unsubstantiated, opportunistic claims’ in ads, Brandequity (June, 17, 2020, 19:18pm), https://brandequity.economictimes.indiatimes.com/news/advertising/covid-19-asci-says-keeping-tab-on-unsubstantiated-opportunistic-claims-in-ads/74923614.

[17]Supra 4.

[18]Ministry of Consumer Affairs, Food and Distribution, Notification F. No. 26(1)/2020-ECR&E (June 16, 2020, 17:19pm), https://www.mohfw.gov.in/pdf/218645.pdf.

[19]Abhishek Gupta, Conundrum of the Consumers during COVID-19, Bar and Bench (June 10, 2020, 17:19pm), https://www.barandbench.com/columns/conundrum-of-the-consumers-during-covid-19.

[20]Advisory to Businesses in Times of COVID-19, Competition Commission of India (June 19, 2020, 18:19pm), https://www.cci.gov.in/sites/default/files/whats_newdocument/Advisory.pdf.

[21]Ibid.

[22]CMA launches COVID-19 taskforce, Gov.Uk (June 18, 2020, 18:19pm), https://www.gov.uk/government/news/cma-launches-covid-19-taskforce.

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

The rising of New Age Racism amidst global pandemic

Kumar Aditya and Shambhavi Singh, both 2nd year students of JEMTEC School of Law discusses the rising incidents of racism amidst the COVID-19 pandemic.

Racism, xenophobia, and unfair discrimination have spawned slavery, when human being have bought, and sold and owned and branded fellow human beings as if they were so many beasts of burden.    – Desmond Tutu

A glimpse to the concept of Racism:

George Stinney Jr. was the youngest person sentenced to death in the 20th century in the United States. He was 14 years old when he was executed by the electric chair. He was accused of killing two white girls, Betty (11) and Mary (7), the bodies were found near the house where the teenager resided with his parents. The boy’s parents were expelled from the city, and the boy was electrocuted with 5,380 volts in the head. Seventy years later, his innocence was finally proven by a judge in South Carolina.[1] He was prosecuted for racial distinctions which was the sole ground of his prosecution.

Racism, also called racialism, is any action, practice, or belief that reflects the racial prejudice   as such an ideology promotes the idea of division amongst humans on the basis of biological differences; that there is a causal link between inherited physical traits and traits of personality, intellect, morality, and other cultural and behavioural features; and that some races are innately superior to others.[2] The concept of racism has been widely read, discussed, debated, and researched, though it is highly misunderstood. Racism is discrimination, prejudice, or antagonism against people belonging to a particular race, group or ethnicity. The new age racism which this article is emphasizing on, includes aversive racism, cultural racism, and othering. 

Aversive racists regard themselves as non prejudiced but, at the same time, harbour negative feelings and beliefs about members of minority groups.[3] Cultural racism is prejudice and discrimination based on cultural differences between ethnic and racial groups. For example, British marriage and kinship forms were considered more ‘advanced’ than other cultural forms (e.g., polygamy or multigenerational, extended families).[4] Othering practices is dichotomy—there must be the Other for the Self to exist and vice versa, and by defining Self, one defines the Other.[5] Therefore, Othering process marks and names those perceived as different from self.[6] It is the “us” and “them” way of thinking in which “them” is often stereotyped.[7] It is usually hierarchical and based on a relationship of power, of inclusion and exclusion.[8] This differentiation affects behaviour and mentality of people and emphasises on a concept of segregation of people into groups rather than diversifying.

Racism and the pandemic:

The new racism or perhaps racism or perhaps laissez-faire racism involves persistent negative stereotyping of African Americans, a tendency to blame blacks themselves for the black white gap in socioeconomic standing, and resistance to meaningful policy efforts to ameliorate U.S. racist social conditions and institutions.[9]

or unmarked racism after the 20th century transformed into a more subtle form of discrimination. The root of new age racism is paternalistic racism, similar to patriarchy, which is structurally embedded in our society and is similarly difficult to eliminate from society. The covert behaviour of racism has been as harmful as it was before for it has taken its ugly form in several nations and has amplified its magnitude resulting into xenophobia amidst the pandemic when uniformity and solidarity were the terms which we should be focussing on, we are looking at troublesome inception of intransigent racism at different levels.

With the outbreak of Coronavirus in the Wuhan Province of China, Asians faced boycotted in several parts of the world, especially those belonging to Chinese descent. It is agreeable to say that the Chinese authorities hid the intensity of the virus, and that resulted in the rife of the virus, but blaming the people of containing the virus is outrageous. They are not only fighting against the virus but racism as well. The extremism to which the Asians and Afro- Americans are discriminated has left an impact on their minds for any apparent violent attack against them by the people; police have continued to racially profile and murder African Americans at alarming rates, prompting public outcry but little remedy.[10] 

The immaculate example of racial discrimination was recently observed with the case of George Floyd, when he was strangled to death for the mere reason of his identity while others became a spectacle to his slow and tragic death as we see the footage of that traumatic incident. The United States offers a sad example where, despite anti-discrimination laws and equal protection rights, the government has failed to protect its people from racism.[11]

Racism is not limited to race but it scales all the forms and kinds of discrimination that are persistently degenerating the society. India has not been much behind America with respect to racism, as students from Delhi University college, belonging to north-east of India was called out by racist slurs.[12] These gross incidents are showing the injustices that society with plaguing mentality forces others to experience others. Likewise, India is also going through a specific form of racism against Islam; after the aggravation of violence by Tablighi with an increased number of coronavirus cases, the country experienced what it is called, Islamophobia. It is ubiquitously present in other countries including the USA and European nations which has also become a tool for the proliferation of hatred and discriminatory behaviour toward a particular community. 

International laws a tool to mitigate racism

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and in furtherance, transforms the society as a whole. Racial discrimination is antithetical to every aspect of the fundamental tenants of international human rights law, which expressly aims to advance the cause of human dignity.

The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on 10 December 1948 in Paris, France, which expressly expounds the human rights. The Art. 2, of the UDHR, states that these rights are entitled without considering any distinctions such as race, colour, sex, language, religion, et cetera. This declaration makes the human rights, universally acceptable. The International Covenant on Economic, Social and Cultural Rights which came into force in 1976, in Art 6, states that the member state should recognize the right to work, which expressly includes right of everyone without any distinction based on race, colour, sex, language, religion, et cetera which abolishes any race-based employment in the member state. Besides, Art. 9 says, that the member states have to recognize the right of everyone to social security, including social insurance, which ensures the social integrity of the society. The International Covenant on Civil and Political Rights which was adopted in 1989, in Art. 16 states that; everyone shall have the right to recognition everywhere as a person before the law, which was a step forward in establishing the rule of law across the globe. The International Convention on the Elimination of All Forms of Racial Discrimination Adopted, following Art. 19, where racial discrimination was defined in Art. 1, which states that; the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

The problem of the current scenario is that even the more liberal democracies do not systematically and constructively oppose the rising tide of racism. On the contrary, they have indulged themselves in the well-known elite denial of racism, especially also by ignoring their role in the elite management of “race relations.” This aversive racism is leading to the gradual destruction of the welfare state. These race relations policies have also become intolerant, and such policies are generally blatantly endorsed, or at least hardly criticized, by the elite governance of any democracy.

Ways to mitigate racism during Covid 19:

Firstly, mitigating racism is via acknowledging deep-rooted racism. We cannot find a solution to a problem if we restrain ourselves from recognising it. Adversity brings the ugliness of the society, and so has this pandemic; Therefore, it is necessary for every individual around the world to consciously make efforts in eliminating this disease, which is a hidden pandemic in itself. 

Secondly, understanding the responsibility, any statement which in its slightest form, if is synonymising racism should be immediately prohibited. Authority brings responsibility; therefore, it is the responsibility of the people in authority to understand their actions and behave responsibly with accountability.

Thirdly, understanding the roles of member states with international human rights law is an instrument to mitigate racism because this impediment can only be countered strategically with a legal framework that empowers the people without any distinctions and establishes the rule of law across the globe. 

We need a better discussion and debate along with the correct understanding of the concept of racism, and attentively take actions and amend orders, which anyway procreate the idea of discrimination. Dismantling all such systems irrespective of any attachment or prejudice, will help in creating harmony. This can be concluded with the words of Kofi Anan “Ignorance and prejudice are the handmaidens of propaganda. Our mission, therefore, is to confront ignorance with knowledge, bigotry with tolerance, and isolation with the outstretched hand of generosity. Racism can, will, and must be defeated.”[13]


Kumar Aditya and Shambhavi Singh are Second year students from JEMTEC School of Law.


[1]Lindsey Bever, It took 10 minutes to convict 14-year-old George Stinney Jr. It took 70 years after his execution to exonerate him.,TheWashingPost (Dec. 18, 2014), available at:https://www.washingtonpost.com/news/morning-mix/wp/2014/12/18/the-rush-job-conviction-of-14-year-old-george-stinney-exonerated-70-years-after-execution/

[2]Britannica; “Racism” by Audrey Smedley; available at: https://www.britannica.com/topic/racism

[3]Psychology Research; “Aversive Racism”; available at: https://psychology.iresearchnet.com/social-psychology/prejudice/aversive-racism/

[4]Encyclopedia.com; “Cultural Racism”; available at: https://www.encyclopedia.com/social-sciences/encyclopedias-almanacs-transcripts-and-maps/cultural-racism

[5]Canales, Mary K. 2000; “Othering: Toward an understanding of difference.”; Advances in Nursing Science 22: 16–31

[6]Weis, Lois. 1995;  “Identity formation and the processes of othering: Unravelling sexual Threads”; The Journal of Educational Foundations; 9: 17–33.

[7]Udah, Hyacinth, and Parlo Singh; 2019; “Identity, Othering and belonging: toward an understanding of difference and the experiences of African immigrants to Australia” ; Social Identities Journal for the Study of Race, Nation and Culture 25; 843–59.

[8]Canales, Mary K. 2000; “Othering: Toward an understanding of difference”; Advances in Nursing Science 22; 16–31

[9]Lawrence Bobo, James R. Kluegel, and – Ryan A. Smith, “Laissez-Faire Racism: The Crystallization of a Kinder, Gentler, Antiblack Ideology”; RACIAL ATTITUDES INTHE 1990s; P. 16, 1997 available at: https://scholar.harvard.edu/files/bobo/files/laissez-faire.pdf

[10]Between 2014 and 2016, for example, Eric Garner, Michael Brown, Tamir Rice, Alton Sterling, Laquan McDonald, Freddie Gray, Sandra Bland, and Philando Castile were among the disproportionate number of African Americans killed by police or who died in police custody. See, e.g., Jasmine C. Lee and Haeyoun Park, 15 Black Lives Ended with Confrontations with Police. 3 Officers Convicted, N.Y. TIMES (Oct. 5, 2018), https://www.nytimes.com/interactive/2017/05/17/us/black-deaths-police.html; Alvin Chang, There are huge racial disparities in how US police use force, VOX (Nov. 14, 2018), https://www.vox.com/identities/2016/8/13/17938186/police-shootings-killings-racism-racial-disparities (reporting that black people make up 62.7 percent of all the unarmed people killed by police based on available FBI data).

[11]Act of Sept. 14, 2017, Pub. L. No. 115-58, 131 Stat. 1150 (joint resolution of Congress acknowledging the “growing prevalence” of “hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy”).

[12]Mohd Ibrar, Delhi: M. Phil scholar faces slur, spat on over coronavirus paranoia, Times of India (Mar 24, 2020), available at: https://timesofindia.indiatimes.com/city/delhi/mphil-scholar-faces-slur-spat-on-over-corona-paranoia/articleshow/74783458.cms

[13]Tahir Habib Cheema, Ignorance and prejudice: learning from Kofi Annan, The Express Tribune, (August 21, 2018), available at: https://tribune.com.pk/story/1785660/6-ignorance-prejudice-learning-kofi-annan

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

PAINTING NATION SAFFRON: SHOULD INDIA BE RENAMED AS BHARAT?

Daksh Saroha and Lavanya Chawla, both 4th year students of Amity Law School, Delhi assays their views on the petition filed in the Supreme Court to rename ‘INDIA’ as ‘BHARAT’

The Bench of Chief Justice of India SA Bobde with Justice AS Bopanna and Justice Hrishikesh Roy on 3rd June 2020 rejected a petition to rename ‘the symbol of slavery’ India as Bharat or Hindustan. The sentiment of Delhi based petitioner is not something new, and has been brought up numerous times in the past by the likes of RSS Chief Mohan Bhagwat who in 2013 stated that “Rapes happen in India, not Bharat” and the incumbent Chief Minister of Uttar Pradesh, Yogi Adityanath in 2014 moving a similar Constitution Amendment Bill in 2014 to substitute the word “India” with “Hindustan” throughout the Constitution and amend Article 1 as, “Bharat, that is Hindustan, shall be a Union of States.” A pertinent question arises as to how the matter was entertained in the first place when the Supreme Court is restricting itself to “urgent matters” only amid an ongoing global pandemic. 

William Shakespeare in his play Romeo and Juliet expressed his views on symbolism with the famous lines: “What’s in a name … That which we call a rose. By any other name would smell as sweet.” But it is not just the unmerited nature of designation that is the subject matter of the issue at hand, it is also the underlying intention behind the petition. 

The origin and validity of various names given to this country have been widely discussed by various historians and authors. The name “India”, originally derived from the Indus or Sindhu river, was used in Persian and Greek since ancient Greek geographer Herodotus in the 5th century BC. The name “Hindush” which later became “Hindustan”, was attributed to Persian origin.[1] Jawahar Lal Nehru, in his book Discovery of India, says, “In the Mahabharata a very definite attempt has been made to emphasize the fundamental unity of India, or Bharatvarsha as it was called, from Bharat, the legendary founder of the race.” Bharat is thereon felt native, while India felt foreign. 

But it is argued through 9th-century Hindu philosopher Vacaspati Misra’s commentary that “Bhārata then refers to a spatially delimited social order, but not to a politically organized entity.” The social order of the Varna system is the antithesis of constitutional values of equality and existed as a mechanism of class oppression. In this sense, Bharat differed from the organically developed political regime that was Hindustan or India. Bharat Ratna winning historian Pandurang Vaman Kane on this matter states that “The Viṣṇu (II, 3, 2), Brāhma, Mārkaṇḍeya (55, 21-22) and other purāṇas proudly assert that Bharatavarṣa is the land of action (karmabhūmi). This is a patriotism of a sort but not of the kind we see in western countries. Bharatavarṣa itself has comprised numerous countries from the most ancient times. There was no doubt great emotional regard for Bharatavarṣa or Ᾱryāvarta as a unity for many centuries among all writers from a religious point of view, though not from a political standpoint. Therefore, one element of modern nationhood viz. being under the same government was wanting.”[2]

This country maturing through its cultural and eventual political stages, is described by Bipin Chandra Pal in his book The Soul of India. The idea of political sovereignty and administrative centralization, he says, were not in the genius of the Aryan people. He states that “the unity of India was neither racial nor religious, nor political nor administrative. It was a peculiar type of unity, which may be best described as cultural. The Moslem rulers of India came into these invaluable inheritances of the Hindus. To the old community of socio-religious life and ideals, the Mahomedans now added new elements of administrative and political unity, all irrespective of castes or community, became equally subject to certain laws and obligations, known only to Islam. Thus, we had, under the Moguls, a new and more united, a more organic, though not yet fully organized, national life and consciousness than we had before. Political unity was achieved and added to the existing cultural unity of Bharat allowing Indians to develop a complete sense of belonging together irrespective of religion and other considerations.”[3] 

This secular solidarity was evident through the words of Mohammad Iqbal in his famous patriotic poem, “सारे जहाँ से अच्छा हिन्दोस्तां हमारा, हम बुलबुलें हैं इसकी ये गुलिस्तां हमारा … मजहब नहीं सिखाता आपस में बैर रखना, हिन्दी हैं हम, वतन है हिन्दोस्तां हमारा”. When he uses the term ‘Hindi’, he does not mean a particular community or religious group; he means the people of Hindustan, irrespective of caste or religion.

The communalisation of this term ‘Hindu’ was done by Savarkar when he divided the Holy land Puṇyabhūmi from Fatherland Patṛbhūmi, and in doing so, excluded the Muslim and Christian community. With Hindustan, he envisioned a Hindu nation. The current petition at hand followed that same intention, which goes against what a secular nation stands for.

According to Jawahar Lal Nehru, “The correct word for ‘Indian’, as applied to country or culture or the historical continuity of our varying traditions, is ‘Hindi’, from ‘Hind’, a shortened form of Hindustan. ‘Hindi’ has nothing to do with religion, and a Moslem or Christian Indian is as much a Hindi as a person who follows Hinduism as a religion”[4]

Replying to the petitioner, in the case at hand, the Supreme Court bench noted that “India is already called Bharat” under Article 1 of the Indian Constitution. The petitioner sought the complete exclusion of the name “India” to “instill a sense of pride in our own nationality.” The logic of the Supreme Court rings true when one examines the practice followed by other nations too. Nations like Spain, Germany, or Japan did not change their official English name to España, Deutschland or Nippon respectively, then why is such a religion coloured need felt in a secular democratic country such as ours?

The petitioner further mentions Constitutional Assembly debate in his application but conveniently omits that any and all such suggestions were deemed as unnecessary. Even suggestions such as those by Kamlapati Tripathi proposing “Bharat, that is India” and Hari Vishnu Kamath proposing “Bharat, or, in the English language, India, shall, be and such” were rejected by the assembly. 

The sentiment shared by the aforementioned political leaders as well as the petitioner that there is a requirement to rid ourselves from the colonial constructs is flawed to an extent. Structures such as the Parliament, The Supreme Court, the Railway network, many major laws such as the Indian Contracts Act 1872, Indian Penal Code 1860, The Indian Evidence Act, 1872, Transfer of Property Act, 1882 were all developed in the colonial era. The nationalist argument based on ethnocentrism, symbolism, and ridding the country from the “symbols of slavery” is not only unnecessary, but it also focuses on the growing Hindu centric sectarianism. 

It is argued that it is not the name of the country that matters; it is how it is represented on an international front. The respect of, rights of the individuals, the freedom of press, and independence of non-political organisations that define its position in that matter. In these tumultuous and difficult times, the Supreme Court should have imposed heavy costs on the petitioner for making unnecessary claims and wasting the honorable court’s time, instead of referring the application as a representation to the centre.


Daksh Saroha and Lavanya Chawla are fourth year law students from Amity Law School, Delhi.


[1]Bʀᴀᴛɪɴᴅʀᴀ Nᴀᴛʜ Mᴜᴋʜᴇʀᴊᴇᴇ, Tʜᴇ Fᴏʀᴇɪɢɴ ɴᴀᴍᴇs ᴏғ ᴛʜᴇ Iɴᴅɪᴀɴ Sᴜʙᴄᴏɴᴛɪɴᴇɴᴛ 46 (Place Names Society of India, 1989).

[2]3 Pᴀɴᴅᴜʀᴀɴɢ Vᴀᴍᴀɴ Kᴀɴᴇ, Hɪsᴛᴏʀʏ ᴏғ Dʜᴀʀᴍᴀsᴀsᴛʀᴀ 137 (2nd ed. Bhandarkar Oriental Research Institute, Poona 1973). 

[3]Bɪᴘɪɴ Cʜᴀɴᴅʀᴀ Pᴀʟ, Tʜᴇ Sᴏᴜʟ ᴏғ Iɴᴅɪᴀ: A Cᴏɴsᴛʀᴜᴄᴛɪᴠᴇ Sᴛᴜᴅʏ ᴏғ Iɴᴅɪᴀɴ Tʜᴏᴜɢʜᴛs & Iᴅᴇᴀʟs 387 (4th ed. Yugayatri Prakashak Limited, 1958).

[4]Jᴀᴡᴀʜᴀʀ Lᴀʟ Nᴇʜʀᴜ, Dɪsᴄᴏᴠᴇʀʏ ᴏғ Iɴᴅɪᴀ 76 (6th ed. Oxford University Press 1994)

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

PATRIARCHAL NOTIONS IN THE INDIAN JUDICIARY: SUBVERTING WOMEN’S CONSTITUTIONAL RIGHTS

Amol Verma, a 4th-year student of CNLU, Patna discusses about the manifestation of patriarchal notion by Indian judiciary and the constitutional rights of women in the country.

Introduction

In the Indian Jurisprudence, the victims of sexual assault are treated worse than the offenders, thereby grossly undermining the dignity of the victims. Patriarchal notions have become deep-rooted in our society to the extent that the judiciary is also not unaffected by it. The victims of sexual assault have to fulfill a prescriptive list of conditions for their testimony to be credible in the eyes of the law. Even in cases where the victims’ complaint against the perpetrators results in a conviction, we find that the offence of rape is typified as one that robs the women of her much-valued chastity and honour. All of this results in the utter disregard of women’s bodily integrity and autonomy. Judicial precedents have virtually created a requirement of self-defense, which is unique to the crime of rape. This is despite the fact that India has through legislation abandoned the requirement of resistance and adopted the requirement of consent.[1] Prior sexual history tends to vitiate the complainant’s credibility. Rape happens to be the only crime where the victim’s actions during the crime and her past behaviour are considered relevant to determine the outcome of the trial.[2] 

The Recent Archaic Order of The Karnataka High Court and An ‘Ideal Rape Victim’

In a recent order[3], a single judge of the Karnataka High Court considered a bail application made by a rape accused. While granting the anticipatory bail, the judge pointed out that the allegations made by the complainant were difficult to believe and that the complainant did not object to having a drink with the accused and even let him stay till the next morning. The Judge further observed that the explanation offered by the complainant that she was tired and fell asleep was unbecoming of an Indian woman. This patriarchal observation by the judge was followed by another remark as he pointed out that this is not how our Indian women behave when they are ravished. While these observations have since been expunged, it speaks volumes of how patriarchal notions have become engrained in our system.

Manifestation of Patriarchal Judgments and Notions By the Judiciary

There have been important legislative changes in the last few years, most notably after the Nirbhaya Gang Rape Case.[4] After the case of State of Punjab v. Ram Singh[5], prior sexual history has been rendered irrelevant by the repeal of Section 155(4) of the Indian Evidence Act, 1872.[6] Furthermore, after 2013, the absence of physical resistance cannot be regarded as consent. However, changes in statutory provisions appear not to have altered the way evidence is appreciated in rape cases. In Raja v. State of Karnataka[7], despite the fact that the victim was kidnapped and gang-raped, the Apex Court remarked that the victim’s behaviour was unlike a rape victim and added that she was accustomed to sexual intercourse. Similarly, in Mahmood Farooqui v. State (Govt of NCT of Delhi)[8], the Delhi High Court observed that in certain instances it is difficult to ascertain that there was no consent when there is little or no resistance by the victim and a feeble ‘no’ by the victim may imply a ‘yes’ therefore not amounting to the offence of rape.  The Punjab and Haryana High Court in Vikas Garg & Ors. v. State of Haryana[9], observed that the rape victim had social relations with the perpetrators, and basis this arrived at outrageous conclusions regarding the consent, thereby belittling the integrity of the women. The court added that young minds with a bright future should not be allowed to rot in jail. The court considers woman’s chastity and honour as her most prized possession. It views a physically and mentally devastated victim’s testimony as more credible as was observed by the Supreme Court in Kamalanantha & Ors. v. State of Tamil Nadu.[10] 

All of the above egregious observations are despite the proviso to section 375[11] which states that: 

“A woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”

An ideal rape victim is supposed to physically resist the offence of rape; this aggravates the chances of harmful consequences and could possibly lead to her death. Ultimate insults and humiliations are heaped on the victim, which converts the accuser into the accused and is a fertile ground for making the accused rapist the accuser. 

It wouldn’t be an exaggeration to say that the above judgments grossly ignore the statutory mandates and subvert women’s constitutional rights. The law, as it is administered by the courts, grossly undermines women’s fundamental rights guaranteed under Article 14 and Article 21 of the Constitution of India. A right to the freedom to live her life as she chooses is infringed upon by this subversion of the judicial process and disregard of the legislative provisions.  

Conclusion and Way Forward

The JS Verma Committee dealt, in detail, with the constitutional rights of women in Chapter I of its report.[12] It highlighted that women are also guaranteed equal protection of the laws; therefore, offences committed against women must be tried in an effective manner so as to ensure the successful conviction of such offences. To achieve the same, the state must set up a dynamic review mechanism. Pasayat J. in State of Himachal Pradesh v. Shree Kant Shekari[13], observed with specific reference to Article 21 that rape is a crime against basic human rights, and is violative of the victim’s right to life.[14] Therefore, the courts are expected to deal with sexual crimes against women with the utmost severity. The 2018 Amendments[15] increased the jail terms for the offence of rape by inserting new provisions. However, what is the need of the hour are more proactive legislative changes that are targeted towards mitigating the imbalance of credibility that women tend to face, which are formulated taking into account the patriarchal double standards that women live with. It is important to understand that these steps are bound to be ineffectual if the outlook of the judiciary does not change. A socially aware and sensitized judge is always a better statutory armour in cases of crimes against women.


Amol Verma is a fourth year student from Chanakya National Law University, Patna.


[1]Indian Penal Code 1860 Proviso § 375.

[2]Mrinal Satish, Virginity and Rape Sentencing, The Times of India (Jul. 15, 2020, 8:55 PM), https://nludelhi.ac.in/UploadedImages/7c23fbec-6b60-4587-a0b3-2c999bdd996a.pdf.

[3]Rakesh v. State of Karnataka, Criminal Petition No.2427 OF 2020.

[4]Mukesh & Anr. v. State of NCT for Delhi & Ors.,  (2017) 6 SCC 1.

[5]State of Punjab & Ors. v. Ram Singh, AIR 1992 SC 2188.

[6]The Indian Evidence Act 1872 § 155(4).

[7]Raja & Ors v. State of Karnataka, AIR 2016 SC 4930.

[8]Mahmood Farooqui v State (Govt. of NCT of Delhi), 243 (2017) DLT 310.

[9]Vikas Garg & Ors. v. State of Haryana, (2018) 1 CriCC 176.

[10]Kamalanantha & Ors. v. State of Tamil Nadu, (2005) 5 SCC 194.

[11]Indian Penal Code 1860 § 375.

[12]JS Verma Committee, Report of the Committee on Amendments to Criminal Law (Jan.23, 2020), https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.

[13]State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404.

 [14]INDIAN CONST. art 14.

[15]The Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliament, 2018 (India).

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

THE ESSENTIAL COMMODITIES (AMENDMENT) ORDINANCE, 2020 – DOES IT HIT THE RIGHT NOTE?

Saumya Gupta, a final year law student from NUALS, Kochi reviews the implications of recent amendment in the Essential Commodities Act on the agricultural economy of India.

To make agriculture sustainable, the grower has got to be able to make a profit. – Sam Farr

The recent amendment to the Essential Commodities Act (ECA) via an ordinance is a welcome step owing to the crisis in the agricultural economy. It seems to be a transformative move as it is considered to be farmer-friendly. The amendment is grounded on the narrative of ‘One nation, one market’ and hogging all the spotlight right now. In light of current panorama, it becomes important to evaluate this law to highlight its possible impact on the agri-business and farmers.

What led to the amendment?

This law was enacted against the backdrop of food scarcity that was persisting in the country back in time, with the aim to put a check on hoarding and black-marketing of essential food items. However, the situation has changed since then as the statistics substantiate the fact that production has increased exponentially over the past six decades.[1] 

The economic survey 2019-2020, found ECA to be distortive of the agricultural market. Several reasons cited were ineffectiveness of stock limits in controlling price volatility, the low conviction rate in contrast to numerous raids, futile administrative efforts, etc. Survey also called upon the government to assess the relevance of ECA in the present times, asking for much-needed amendments in the obsolete law. NITI Aayog has also called this act as a hindrance to the farm exports.[2] The amendment came out after a protracted delay shown by the government in realising the need to further liberate the Agri-economy.

Finally, in the wake of the crisis created by COVID-19 in agriculture and Agri-market, by the closure of mandis and supply-chain disruptions, the government has introduced the much-awaited reforms.

Amendment and its Positive Impacts-

The amendment has added a sub-section 1(A) to Section 3 of the Act; it restricts the power of government by formulating a mechanism for regulation of foodstuffs like grains, oils, pulses, potatoes, etc. These foodstuffs can only be regulated under extraordinary circumstances, i.e., war, famine, extraordinary price rise natural calamity of grave nature, to protect the interest of consumers. Also, stock limits can be imposed on the criteria of price rise of certain commodities. It specifies that limits can be invoked only in two circumstances, i.e., in case of horticultural produce, a 100% increase in the retail price, and for non-perishable agricultural foodstuffs, set-off will be a 50% increase in the retail price. 

Interestingly, the amendment provides that the value chain participants shall be absolved from the imposition of stock limits. Therefore, in the absence of stock limits, the value chain participants such as processors, millers, importers, exporters, traders can hold as much stock of these commodities as they want to. However, the aforementioned provision is only applicable when participants are in compliance with the rider to the provision, i.e., stock held shall be less than (i) overall ceiling of installed capacity of processing, or (ii) demand for export in case of an exporter.[3] Further, orders relating to the Public Distribution System and Targeted Public Distribution System are exempted from the application of the ordinance.

The positive impacts of the amendment are multi-fold, which are both farmer-friendly as well as business-friendly. Now, it seems the power wand has been handed over to the farmers, for good. They can now store and export commodities as per their wish because the stock limits can be imposed on certain situations of excessive price rise only.

One of the major reasons behind introducing this amendment was to attract private investments into the farm sector, especially in cold storage, warehouses, processing, and export.[4] There was almost no private investment in the aforesaid facilities as many commodities fall under the purview of the act, and sudden imposition of stock limits created unnecessary ruckus and fear. Amended law will also attract foreign investments by removing excessive regulatory interference and pave the way for entrepreneurial advances.

Further, the amendment sets to herald the positive changes by increasing cold-storage and processing facilities. The lack of adequate cold-storage facilities and processing avenues often leads to wastage of perishable commodities and leaves a dent in the farmers’ pockets.[5] The move is also expected to control inflation in the lean season.

Moreover, it may lessen the instances of harassment faced by innocent exporters, producers, etc.at the hands of bureaucracy in the form of hollow raids and others. Dilution of power of imposing stock limits and exclusion of value chains may cut down such practices and reduce red-tapism.  

Possible Drawbacks-

Though these amendments are receiving much critical acclaim, the possibility of them being the harbinger of a few hazardous effects is not unlikely. The confidence shown by the government in the market power to attract investment and uplift the farm sector might be myopic in nature.

The negative implications can be seen in the following ways- 

  • Opportunists may resolve to limitless stocking, encashing upon the vacuum created by a lack of governmental responsibility to regulate prices of commodities. This will eventually lead to hoarding and black-marketing. Further, the act doesn’t distinguish between genuine stock holding and speculative hoarding, which creates a dubious situation.[6]
  • The regulation and monitoring of the market will cease to exist, as there will be no regulatory body to oversee market activities.
  • In the long run, there is a likelihood of the creation of monopolies and cartels, which can adversely affect the competition and prove to be perilous for the farmers.
  • This situation may result in a general price level hike[7] and, thus, negatively affect the industries dependent on the agricultural sector.

Conclusion

The evaluation of the law brings forth the two sides of the coin, but the million-dollar question here is whether it meets the present demand of the issue, i.e., crop loss, plummeting agricultural wages, and repayment of crop loans by farmers. It will most likely have long-run positive impacts, but immediate concerns remain unaddressed. Looking into the bigger picture, one can only hope that these reforms turn out to be efficacious by proper implementation and monitoring.


Saumya Gupta is a final year law student from NUALS, Kochi.


References

[1]Undermining Markets: When Government Intervention Hurts More Than It Helps, Economic Survey, Vol. 1, (2019-2020),https://www.indiabudget.gov.in/economicsurvey/doc/vol1chapter/echap04_vol1.pdf

[2]Joe C Mathew, Essential Commodities Act is a hindrance to Agri exports, says Niti Aayog, Business Today, (July 7, 2020,6:16 PM) https://www.businesstoday.in/sectors/agriculture/essential-commodities-act-a-hindrance-to-agri-exports-says-niti-aayog-farm-

[3]The Essential Commodities (Amendment) Ordinance,2020 (https://consumeraffairs.nic.in/sites/default/files/file-uploads/essential-commodities-order/EC_Ordinance.pdf)

[4]Union Cabinet, PM chairs Cabinet Meeting to give historic boost to Rural India, Pib (June 03, 2020, 5:02PM)https://pib.gov.in/PressReleasePage.aspx?PRID=1629033

[5]Id.

[6]Supra note 1 

[7]Farm gate in focus: On amending Essential Commodities Act, The Hindu, (May 18, 2020, 01:22 AM)https://www.thehindu.com/opinion/editorial/farm-gate-in-focus-the-hindu-editorial-on-move-to-amend-essential-commodities-act/article31609782.ece

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