GENDER-BASED VIOLENCE: AN EMERGING PANDEMIC

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

Introduction

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

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

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

High Court of Jammu and Kashmir 

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

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

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

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

Delhi High Court 

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

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

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

Conclusion

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

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


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


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

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

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

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

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

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

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

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

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

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

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

FEDERALISM IN TIMES OF PANDEMIC

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

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

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

Changing Centre-State Equations

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

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

The Federal Tensions

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

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

Dynamics of Fiscal Federalism 

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

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

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

Roadmap for the Future

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

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


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


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

Image Source – The Statesman

DOMESTIC VIOLENCE: A SUPPLEMENTARY PROBLEM WITH COVID-19

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

ABSTRACT

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

INTRODUCTION

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

DIFFERENT FORMS OF DOMESTIC VIOLENCE

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

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

LEGAL ASPECT OF DOMESTIC VIOLENCE IN INDIA 

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

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

ROOT OF THIS PROBLEM

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

LOCKDOWN AND THE CASES OF DOMESTIC VIOLENCE IN FOREIGN NATIONS

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

STEPS TAKEN BY THE GOVERNMENT AND ITS RESULT

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

SUGGESTIONS

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

CONCLUSION

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


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


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

FACEBOOK-JIO DEAL: A CHALLENGE FOR COMPETITION REGULATORS

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

Introduction

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

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

Dat-a Privacy

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

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

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

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

Monopolization of Digital Market

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

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

Breach of Level Playing field

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

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

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

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

Conclusion

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


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


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

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

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

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

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

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

[7]UNCTAD/ITCD/CLP/Misc.14 

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

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

[10]E/LC(05)/C728/no.2 

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

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

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

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

THE LOCKDOWN: LAW STUDENTS & EDUCATION

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

Introduction

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

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

Transformation

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

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

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

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

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

Conclusion

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

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

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

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

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


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


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

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

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

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

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

DOMICILE STATUS OF WIDOWS IN INDIA: A DELAYED AMENDMENT

Dhriti Mitra and Pranay Tuteja, both, students of Symbiosis Law School, Pune explains the lacunae in law regarding the Domicile status of Widows in India and the problems they face concerning their right to inherit immovable property.

Introduction

There lies a deep fallacy in the layman’s understanding of the term domicile. The Indian courts have defined the term as the place where the habitation of a person is fixed without any present intention of removing therefrom[1] A mere sojourn or temporary residence does not constitute domicile; it signifies an association with a single system of territorial law which may not dictate the same principles for all classes of persons. The general rules pertaining to domicile are, (i) nobody is without domicile, (ii) a person cannot have two domiciles, and (iii) there is a presumption in favor of the continuance of an existing domicile.[2]

The classes of domicile recognized by the Indian constitution and the Indian Succession Act, 1925, are (i) Domicile of origin; (ii) Domicile of choice, and (iii) Domicile by operation of law.  The two crucial aspects that need to be fulfilled for the acquisition of a domicile of choice are; factum and animus. Factum represents the physical presence as an inhabitant of a particular place. Whereas the concept of animus manendi focuses on the intention to remain in a particular place for an unlimited period of time. The existence of a motive is immaterial unless it helps shed light on the intention of the person with respect to their residence.[3] 

Current Position in Law

The Apex Court has interpreted Article 5 of the Indian Constitution[4] to suggest that the right to change the domicile of birth is available to any individual who is legally independent. The same can also be acquired by residing in the country of choice with the intention of continuing to reside there indefinitely. However, unless proven otherwise, there is a presumption against the change of domicile. Hence, the person who alleges it has to prove so in a court of law.

Additionally, the courts have held that the intention of continuing to reside, is always lodged in the mind. This intention can be inferred from any act, event, or circumstance in the life of such a person. Further, a residence for a long time period in a particular place is considered evidence of such intention, which helps determine domicile.[5]

As per the Indian Succession Act, 1925, a married woman acquires the domicile of her husband and retains the same during her marriage.  The only exception to this is when a woman no longer follows her husband’s domicile because they have been separated by the sentence of a competent court or if the husband is undergoing a sentence of transportation.[6] However, the law maintains absolute silence on the domicile status of a widow and her right to inherit immovable property. 

The 110th Law commission report of India addresses the issue of domiciled widows at length.[7] As per the report, the provisions of the Indian Succession Act, 1925, are founded on the principle that the wife has a duty to live under her spouse’s domicile, and the law disables her to choose her own domicile after the death of her husband. The report proposes the addition of Section 16-A to the Act that would address the predicament of the widows if the present scheme of sections 15 and 16 was to be retained.  

The lacuna in the Law

A large number of widows in India are deprived of their inheritance rights, especially in cases where she is either childless or has given birth to a daughter. Her husband’s familial lineage is considered to be the domicile of the widow. This has proven to be a major contributor to poverty and marginalization for them as it denies them access to not only their inheritance but also other economic benefits. For example, a widow had been physically and mentally tortured by her brother in law in order to gain control over the inherited property.[8]

The Indian law does not have a provision which specifically clarifies the fate of an Indian widow’s domicile after the death of her husband. However, the Indian courts have observed that even on the death of the husband, a widow retains her husband’s domicile. But she cannot change it by choice unless it is by an act of marrying someone else.[9]

The legal rigidity of the widow’s fixed domicile post her husband’s death is directly violative of Article 14 of the Indian Constitution.[10] If every other citizen is allowed a right to choose their domicile status, there is certainly no form of reasonable classification in not allowing the same to widows. Further, it is also violative of Article 300A of the Constitution[11], as a widow cannot be denied access to the property, even when she has a legitimate claim of inheritance in other territories.  

In a situation where the husband’s domicile is proved to be in a foreign country[12], the wife retains the foreign domicile of her husband after his death. India did away with the concept of inheritance tax in 1985 with the abolition of the Estate Duty Act. But certain countries like the UK, continue to charge an inheritance tax up to 40%.[13] The payment of inheritance tax in the UK is dependent on whether a person is domiciled there at the time of his death. If his domicile is proved to be the UK, then his successors will have to pay the tax.[14] The major cause of concern arises when a widow is forced to pay such a hefty sum of money due to the lack of an option to choose her own domicile.

A Global Perspective

The old common-law rule regarding the domicile status of women stated that the domicile of the wife is the same as that of her husband, and if he wishes to change it, his wife must change it along with him. Whether she was in favor of it or not, was not taken into consideration due to the principle of unity of marriage.[15] Years later, Lord Denning criticized the law as “the last barbarous relic of the wife’s servitude.”[16] 

The aforementioned phrase gained much fame and helped achieve substantial alteration in the laws governing the domicile status of women in England. The rule of unity for the purpose of domicile was abolished, and under the English Act of 1973, a married woman could acquire a separate domicile as any independent person.[17] This Act operates in accordance with the spirit of equality of sex as embodied in many international treaties, conventions, and covenants, such as Article 16 (1) of the Universal Declaration of Human Rights, European Convention on Human Rights, International Covenant on Civil and Political Rights, etc. 

Other countries, such as the United States, initially failed to recognize the separate domicile of a married woman. This position was however, changed after the Law Reform Commission was established, and women are now allowed to choose their domicile.[18] Similarly, New Zealand, through the Domicile Act of 1976, abolished the old rule and allowed every married person the right to acquire their domicile independently.[19]

A 2008 survey commissioned by the Loomba Foundation on the treatment of widows, in which seventeen developed and developing nations participated across the globe, showed widespread mistreatment and disadvantage towards widows.[20] The two primary reasons for this disadvantage was ascertained to (i) low levels of economic development, and (ii) social norms biased against the widows. As per the report, 18% of the Indian widows claimed to be treated worse than the general female population. This survey is reflective of how widows still face mistreatment and continue to be at a disadvantage globally. It is, therefore, imperative that necessary changes be introduced at the earliest.

Conclusion

Given the societal inequity, many may state that the attachment of a widow’s domicile to that of her deceased husband is actually beneficial for her, as she will not have to undergo bureaucratic or territorial hurdles in order to claim her inheritance. She will become a Class I heir to her husband’s property as compared to a mere coparcenary to her parental inheritance, that will be further divided amongst several other relatives. Nevertheless, the authors firmly believe that all individuals, irrespective of their societal status, deserve a ‘right to choice.’

The law must not affix, dictate, or limit the residential identity of a widow, just like it should refrain from dictating their choices and identities in other aspects, for example, widow remarriage. The 110th Law Commission Report rightly suggested the addition of Section 16-A to the Indian Succession Act, 1925. This amendment would not only help with the social and political but also the economic upliftment of widows. In conclusion, the authors call for the enforcement of a long-delayed amendment in the existing law, wherein a widow should explicitly be given a right to choose her own domicile.


Dhriti Mitra and Pranay Tuteja are students from Symbiosis Law School, Pune.


[1]Kekhasaroo Sorabji Irani v. the State of Maharashtra, AIR (1972) Bom 357.

[2]Shiv Indersen Mirchandani of Bombay and Ors. v. Natasha Harish Advani and Ors., (2002) (2) BomCR43

[3]Trevor Todd, Domicile, Disinherited, https://disinherited.com/legal-definitions-and-terms/domicile/

[4]Indian Const. art 5.

[5]Sondur Gopal v. Sondur Rajini, AIR (2013) SC 2678.

[6]The Indian Succession Act, § 16, (1925).

[7]Law Commission of India, 110th Report on The Indian Succession Act, 1925, (February 1985).

[8]Ratan Kumari Tholia v. Sunder Lal Tholia, AIR (1959) Cal 787.

[9]Prakash v. Mst. Shahni, A.I.R. (1965) J & K 83.

[10]Indian Const. art 14.

[11]Indian Const. art 300A.

[12]Proles v. Kohli, (2018) EWHC 767(Ch).

[13]Danielle Richardson, Inheritance tax: thresholds, rates, and who pays, Which? (June 2020), https://www.which.co.uk/money/tax/inheritance-tax/inheritance-tax-thresholds-rates-and-who-pays-avrxm3k7kgxw

[14]Domicile Status and UK Inheritance Tax, Blevins Franks, (Mar. 09, 2016), https://www.blevinsfranks.com/news/blevinsfranks/article/inheritance-tax-and-domicile

[15]76/77, The Unity of Husband and Wife in Common Law, Law & Just. – (Christian L. Rev. 33, 1983).

[16]Justice M.D. Kirby, Lord Denning Master of the Rolls, Reformer, Iconoclast, Moralist, (1977), https://www.michaelkirby.com.au/images/stories/speeches/1970s/vol2/1977/26-Lord_Denning%2C_Master_of_the_Rolls%2C_Reformer%2C_Iconoclast%2C_Moralist.pdf

[17]Domicile and Matrimonial Proceedings Act, 1973.

[18]Russell J. Weintraub, Commentary on the Conflict of Laws, (1971). 

[19]Domicile Act of 1976, § 5.

[20]World Widows Report 2015, A Critical Issue for the Sustainable Development Goals, The Loomba Foundation, (February 2016), https://www.theloombafoundation.org/sites/default/files/2019-06/WWR.pdf

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

THE LEGALITY OF LAW ENFORCEMENT BY MILITARY: USA’S ONE STEP FURTHER AWAY FROM LIBERALISM

Samavi Srivastava and Utkarsh Vats, both first year students of National Law University, Bhopal, discusses the legality of law enforcement by Military in U.S.A in light of The Insurrection Act and the Posse Comitatus Act. 

THE PROBLEM 

As protests against racism and for civil liberties in the United States proceeded, while some world leaders came out in support, others were less than accommodating of them. President Trump, a hardcore Republican, not only expressed his disdain of the protests, but also threatened to deploy the military against the protestors if they did not retreat. This brings forth various questions regarding the legality of such an action; the ambit of the presidential powers, their conflict with powers of the states, etc. Two important legislations come into play to address this question: The Insurrection Act and the Posse Comitatus Act. 

Further, is an analysis of the general trend in the USA of moving away from ideas of liberalism, and whether this conflicts with democracy as a whole. This trend also threatens the picture of the USA as the role model of a western liberal democracy. A larger picture is brought to light while assessing the general shift of the world away from traditional ideals of liberalism, and how USA’s actions influence it.  

THE LEGALITY OF TRUMP’S STATEMENT

The idea of prohibiting military from interfering in the affairs of civilians has existed since the Magna Carta of 1215, which iterated that no free man is to be arrested or imprisoned or otherwise withheld except by the law of the land. This view was further upheld by Sir William Blackstone. He believed that interference of the army ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land, for that would be against the Magna Carta. 

Previously, the United States Congress had, through statutes like the Fugitive Slaves Act of 1793[1], allowed the usage of military by federal marshals[2], the American equivalents of British County Sheriffs, for executing a warrant issued by the slave owning family whose slaves had run away. This practice of indifferently using the military prevailed through the civil war into the 1870s. Eventually, in 1877, the House of Representatives, that had a Democratic majority, introduced an Army Appropriation Bill and it was eventually passed by the Senate with a Posse Comitatus clause[3], to limit the arbitrary use of the federal military resources by the President among others. The PCA that exists today remains largely unchanged from the original one.

The PCA outlaws the usage of military for law enforcement purposes unless expressly authorised by the constitution or an act of Congress. This however, leads to a contention between Presidential and Congressional powers. The constitution requires the President to ensure that laws are faithfully executed.[4] The Supreme Court has ruled in In re Debs[5], that when an emergency arises threatening some responsibility entrusted to the federal government, the President may call upon “the army of the Nation, and all its militia to brush away the obstructions.” Simultaneously, the constitution vests Congress with the power to establish, maintain, and regulate the Armed Forces and with the power to describe the circumstances under which the militia may be called into federal service.[6] 

However, the Supreme Court has tried to solve this contention between Presidential and Congressional authorities. In Texas v. White[7] and Youngstown Sheet & Tube Co. v. Sawyer[8], respectively, the Supreme court ruled that the President’s power under the Guarantee Clause of Article IV, Section 4[9], which guarantees the states protection against domestic violence, is only provisionally effective until such time as Congress acts, and that the President may not always use the Armed Forces to meet a domestic emergency when Congress has previously resisted an invitation to sanction their employment.

The Insurrection Act[10] is one of the most significant exceptions to the PCA. It states that the President may call upon the military forces, land or naval, as and when there are cases of insurrection leading to obstruction of laws in the United States or any of its states. However, even before implementing this act, the President must publicly make a proclamation ordering the insurgents to peacefully disperse within a reasonable time, giving them the opportunity to retreat.[11] 

There are certain conditions under which the President may resort to the Insurrection Act while ordering the military to interfere in a state’s functioning. The least controversial circumstance is when the legislature of the State, or otherwise the Governor, itself requests the help of the military to suppress the insurrection.[12] The second condition is when the President believes that it is impracticable to suppress rebellion and enforce laws within a state through the ordinary course of judicial proceedings, and considers it necessary to enforce the armed forces.[13] An example of such an act of President was when George Washington ordered troops to clamp down on the whiskey rebellion started by angry farmers who resented federal tax impositions. This situation initially required an associate justice or the district judge to notify to the President of the United States about the lack of functioning of the judiciary, however, it was eventually made unnecessary. This condition brings in subjectivity and relies mostly on the President’s assessment of the situation in a state, which may or may not always be accurate. Further, terms such as ‘rebellion’ or ‘unlawful obstruction’ are not defined with precision and thereby accord the President with considerable liberty to interpret them. Finally, the President may also call upon the military if he believes that violence in a state is hindering the rights or privileges of any part or class of its people, or is preventing execution of laws and impeding their course of justice, and the authorities within the state are unable to protect such laws and rights.[14] This condition also allows room for subjectivity and hence potential misuse. President Dwight Eisenhower relied on this section in 1957 in Arkansas to eliminate obstructions of justice.

This Act was amended in 2005 post the lack of an adequate response from the Centre during Hurricane Katrina. The Amendment added domestic violence caused by “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition” as a condition for deploying the armed forces in a state to restore public order. This was seen by many as a significant amplification of the powers of the President and an infringement of the powers of a state. However, this ought not to be confused with the Stafford Act that authorises the President to call upon the armed forces for providing aid in states stricken by a natural or man-made disaster. This, unlike the Insurrection Act, does not constitute an exception to the PCA because it merely allows the forces to aid the states in providing relief from the damages caused by the disaster through health and safety measures. It does now empower the forces to implement law and order in the state. 

The Congress also created another exception to the PCA for conditions involving the ‘war on drugs’. The Secretary of Defence has the power to enforce military equipment and personnel for enforcing law related to prevention of the drug problem. Albeit these statutory provisions do not allow direct involvement of the military such as arrests, it encourages their participation in  surveillance and maintenance of peace. 

THE BIG PICTURE 

While Trump’s statement may seem to be made in jest without real implications, it is reflective of a general turn that the United States is taking away from the traditional ideals of Western liberalism. The current administration, with anti-trade, anti-globalism, anti-immigrant policies, along with a rejection of the idea of climate-change, the recent reversal of transgender healthcare protections, and other major policy decisions, has never followed the path of liberalism. Perhaps the apparent apathy towards the ongoing protests for rights and liberties is not so out of context. Yet, President Trump is a democratically elected leader who enjoys popularity among his supporters. 

This suggests that liberalism and democracy are not as inextricable as was once thought. Trump enjoys populism; the support of the ordinary people, which is regarded as the converse of liberalism. “The illiberal populism of Donald Trump entails the reckless use of the mechanisms of democracy to disenfranchise political minorities and diminish civil liberties.” Essentially, populism is democracy without liberalism. The United States was seen as an ideal of a Western liberal democracy by other nations. However, this change might create a ripple effect leading to nations across the world moving away from liberalism. 

The recent tide away from liberalism is threatening to reverse the accomplishments of the modern human rights movement, putting minorities and endangered sections of societies across the world in a position of great disadvantage. Therefore, it is very important to uphold the democratic principles of progressivism and political stability. The most effective way of restoring a less extremist thought is to increase inter group contact. This will help us give up the idea of supremacism and bring everyone out of isolation. Contact and dialogue will put forth ideas of unity and put things in perspective. As Richard Dawkins, an evolutionary biologist and author from Oxford, said, “National pride has evil consequences. Prefer pride in humanity. German pride gave us Hitler, American pride gave us Trump, British pride gave us Brexit. If you must have pride, be proud that Homo sapiens could produce a Darwin, Shakespeare, Mandela, Einstein, Beethoven.” 


Samavi Srivastava and Utkarsh Vats are first year students from National Law University, Bhopal.


[1]Act of Feb. 12, 1793, Respecting fugitives from justice, and persons escaping from the service of their masters, 1 Stat. 302, as amended by 9 Stat. 462 (1850).

[2]See, e.g., 1 Stat. 87 (1789).

[3]See 7 CONG. REC. 3845 (1878)

[4]U.S. CONST. art. II, § 1

[5]In re Debs, 158 U.S. 364, 381 (1895)

[6]U.S. Constitution. art. 1 § 8, cl. 12-16)

[7]Texas v. White, 74 U.S.(1869)

[8]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[9]U. S. Const. Art. IV, § 4

[10]Insurrection Act of 1807, ch. 39, 2 Stat. 443, 443 

[11]10 U.S.C. § 254 (2018)

[12]10 U.S.C. § 251 (2018)

[13]10 U.S.C. § 252 (2018)

[14]10 U.S.C. § 253 (2018)

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

A COMPREHENSIVE STUDY OF IPR PROTECTION IN TATTOOS IN INDIAN PERSPECTIVE

Aranya Nath and Shreeja Shyama Praharaj, both fourth year students of KIIT School of Law, Bhubaneswar discusses the IPR protection related to tattoos in light of Indian Copyright Act, 1957

INTRODUCTION

Tattoos are special kind of character designs which is found on skin parts of human beings, especially on film artist, stage performers to make them more impressive. But we never think of those persons who have the innovative skills to create such a beautiful & complex design. In our society, there is no doubt that copyright should be enabled for the high valued product. We need to understand the fact that with the dynamic changes in technology art forms are also changes at a rapid scale. Now a day we can see that many industries & companies have some tattoos to identify their company. A review has been found that in the USA as a result of the growth of tattoo industries businessman earns billion dollars. They have a legal framework also to protect it. Therefore it is my question in India can we protect the tattoos with the help of copyright?  Whether the tattoo makers should be able to own the rights on the artistic feature created by them only? Is it enforceable up to which extent? All the queries of legal jurisprudence will try to explore the ideas of protecting tattoos so that one can’t infringe the artistic feature under section 51 of the Copyright Act 1957.

TATTOOS & ENFORCEMENT OF COPYRIGHT PROTECTION

Copyright protection generally protects the expression of ideas. Tattoos are also known as an artistic feature as the artist creates the design by their innovative skills. So it ought to be necessary to protect copyright protection. However, Indian Law doesn’t explicitly specify the need for a tangible medium of expression. Still, the Indian copyright office validates the artistic creation of tattoos that enables in the validation of tattoos as copyrightable works, the Indian Copyright Office, in 2011, granted Shahrukh Khan a copyright registration tattoo. There has not been any infringement concerning that still now.

To understand the applicability of copyright to tattoos, one must recognize that it is only original as the artist created the beautiful & complex design; therefore, tattoos become the Subject matter of the discussion. We know copyright has provided bundle of rights yet under sec 14 (c) (ii) of the Copyright Act 1957 it specified that copyright holder has the right to communicate the piece of work in the public domain. It must be noted that the provision relating to the communication of the artistic work is kept for artistic work only in the public domain which implies that the artist’s rights are entitled only for the artistic works only. Under Section 14(c) (ii) the artistic work must be concluded to the public. Therefore the tattoo artist has the right to control by stating the tattoo bearer to restrict the replication of the work under section 14 of the Indian Copyright Act 1957. As a result, any violations led to imposing constitutional rights under Article 19 and Art.21 of the Indian Constitution.

OWNERSHIP

Generally, the tattoo is referred as artistic creations of a copyright owner in practice under Section 17 of the Indian Copyright Act, stating the procedure of creation of tattoos would be subjected to an agreement to the contrary and it is not so hard to state that the more well- established tattoo artists, in specific, would be informed of an intention to maintain their art work’s copyright ownership. It stated that before getting a tattoo, along with the form that is given to the customer for acknowledgement, it is likely to state that a design that had been chosen would be of another tattoo artist which may end up sporting another artist’s intellectual property. As we know that an artistic creation holds IP protection, therefore, the person who holds apart from the main artist also has a right to control, and a question can be raised how to exercise the right to control.

RIGHTS

We all know that copyright provides a bundle of rights under section 14, with regards to the section copyright owner need to communicate the work in a public forum which is mentioned under section 14(c) (ii). It should be noted that the artwork should be communicated not the copies/ design patterns of the artistic work.

ASSIGNOR’S RIGHTS

If the person who has been assigned by the assignor failed to perform his duties, then the copyright board on receiving the complaint from the assignor can easily revoke the assignment.

INFRINGEMENT

As we know about the relevancy of the section stated about the rights of the copyright owner under section 14 (c) (ii) therefore if it is found that someone else has copied the image of the tattoo and presenting the infringing copies in his or her names in the public domain then the filing of infringement suit wouldn’t be implementable as it is on the human body.

POSITION & IMPLEMENTATION OF US LAWS AND INDIAN LAWS

As far as concerned US Laws have the provision for the subject matter to be copyrighted in the view of mainly three parameters i.e. the originality, authorship & the fixed piece. These three parameters are stated because there’s ambiguity is there whether the art is the original or it is the infringing copies. Because the infringing copies which are carried out by the illustrator earn a lot of market potential. Therefore it is required to ensure that the work has originality in nature which also ensures that the art of work has authorship in nature & the artwork is of the fixed piece so that there’ll be no ambiguity related to infringement. If all the parameters succeed then the subject matter is copyrighted in the US 

Whereas in India it is not related to the IP protection concerning tattoos because though tattoo itself is a design so it must have copyright because it has been observed that one of the NBA players was sued for copyright infringement under sec 51 of Copyright Act 1957 for displaying the tattoo in the Nike advertisement. But it was settled outside court which seems that there’s no clear judicial pronouncement for the IP protection of the tattoos. Another point is that the replications of original designs i.e. maroari artwork that led to cause lots of accusations that the opponent has infringed the designs so in this instance the artist has the right to claim intellectual property ownership over the design. Still, it is sad for the artist that there’s no direct judicial pronouncement to protect their creations.

TRADEMARK & TATTOOS

Trademark is defined as a logo that can be a tattoo that will distinguish a company and its product enclosed in ROC. Logos can be distinguished as tattoos also. Imagine a company named “Lion’s Club” has given a logo as a tattoo of a lion. Ironically if someone tattooed the logo of a company on himself or herself, it doesn’t have any intention to befuddle any public member to be the creator of any particular goods & services. Imagine a company tattooed as “I * NY” is used by a person on his hand. The symbol * is available on the company’s product which could be proved in the court of Law as alleging the logo, therefore, the argument can be fought from two sides also which will be engaging in nature as a legal jurisprudence. Another question came in my mind whether I can trademark a tattoo. According to trademark law, we can trademark a tattoo. It is done for the promotion of products in the market. As an entrepreneur one needs to clear about the IP strategy, as trademarking a tattoo will lead to stop rivalry among the products concerning its identification. A tattoo is subjected to some regulations and limitations that would apply to any other picture or logo. It is much more important to look after that as many viewpoints are available for looking at tattoos and trademark, whether the tattoo can be trademark-able or it has a trademark tattooed onto someone’s body.

CONCLUSION

The clarity for IP protection is there as we have seen that Indian Copyright Laws did the registration for Shahrukh Khan’s tattoo that becomes the copyright assets. However, the variable in the equation is the scope and enforceability of the freedoms to be given to the parties. While the moral rights which include the promotion of tattoos within the presence of tattoo artists and imparting them their privileges whilst due are certainly implied, the discussion to be laid to the rest is the legislative right to be granted to either party. Another issue is about the enforceable of these rights so to enforce & safeguard these rights; we need a powerful establishment that will identify the magnitude of damage that copyright owners can seek without breaking the basic rights of the infringer. So it requires a long way to go in terms of tattoos and artist protection from infringement.


Aranya Nath and Shreeja Shyama Praharaj are fourth year students from KIIT School of Law, Bhubaneswar.


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

MIGRANT CRISIS: THE HARSH REALITY OF OUR BROKEN SYSTEM

Manasvi Bhatt, a fourth year student of University of Petroleum and Energy Studies, Dehradun analyses the sufferings of the migrant labourers and the responsibility of the government for their safe return and rehabilitation.

INTRODUCTION

In December 2019, the first case of Covid-19 was registered in China. Soon the outbreak of virus spread across the world. India, to fight the virus, was under lockdown from March 25, 2020. When all the citizens of our country were locked in their houses and enjoying the quality time with their families. Doctors, police officers and all the essential services were working day and night to fight against the deadly virus. But in the midst of this, the government failed to consider a large section of the society who suffered the most: migrant workers. For decades people have moved to different cities, states and countries in search of better life opportunities. People coming from villages and small towns migrated to metro cities. We see them everywhere, yet we failed miserably to acknowledge them.

THE BEGINNING OF THE CRISIS

The Prime Minister announced the first lockdown from March 25, 2020, closing all the factories, industries, hotels and restaurants. Thousands of people lost their jobs and were left with no money. According to the 2011 census, 455 million Indians, or one-third of the population could be classified as migrants.[1] The improperly planned lockdown forced these workers to go to their native village either on foot or bicycle. Hunger and no jobs led to the exodus of these migrant workers from various parts of the country. As their source of income ended abruptly, they were left with little savings their hand. But these savings were not sufficient for them to reach their native villages. They had to sell their valuables to reach their destination. Deprived of jobs and transportation, these workers started walking their way with either no money or little money and no food. For them it was like walking on a two-sided sword, on the one hand, they could stay at their rented houses in the city and depend on government and citizens for their survival, or they could walk to home suffering atrocities and policemen in their way. To avoid police interrogations, they chose to walk on dangerous paths, and some have even lost their lives. On May 8, 2020, 16 migrant workers were killed when goods carrying train passed over them. They were walking towards home and slept on or near the tracks. Many reports have come regarding the desperate measures taken by migrant workers trying to reach home and how their life ended in this dangerous journey. According to reports, 14 migrant workers were killed in Madhya Pradesh and Uttar Pradesh on May 13, 2020. The police said six migrant workers were killed in Uttar Pradesh when a state transport bus ran over them, and PTI reported that eight were killed when the bus in which they were travelling collided with a truck in Madhya Pradesh.[2] On May 15 morning, NDTV reported that six migrant workers were killed in 3 separate incidents in Uttar Pradesh.  According to data from Save Life Foundation phase, 3 of lockdown contributed to 60% deaths of migrants’ workers. Around 198 migrant workers died in road accidents during lockdown according to reports of Save Life Foundations. The workers lost their lives in road accidents, due to hunger and dehydration and they even died in Shramik trains.  After 80 days, these workers can still be seen walking on the highways.  

THE ROLE OF JUDICIARY AND GOVERNMENT

On May 26, 2020, a three-bench judge led by Justice Ashok Bhushan decide to take Suo moto action on the miseries of stranded migrant workers and ordered the central and state government to immediately provide with transportation, food and shelter free of cost to migrant workers. The CourtCourt previously failed to protect the rights of migrant workers in March and made some bizarre statements by saying “How can stop migrants from walking”.[3] The Solicitor General also made a funny statement in Supreme Court in March by saying “there is no person walking on the roads in an attempt to reach his/her home towns/villages.”[4] Time and again, the Supreme Court has abdicated its duty to protect the fundamental rights of the migrant workers. The three-bench judge comprising of Justice Ashok Bhushan, SK Kaul and MR Shah said that 15 days are enough for the central and state government to bring all the stranded migrant workers to their native homes.  

The central government started Shramik Special Trains from May 1 to carry migrant workers. The special trains only added to the plight of these workers. The central and state governments again failed miserably. Indian Railways reported that 256 trains were cancelled by various state governments. The lack of coordination between the state government and central government led to such cancellation of trains. There are reports of people dying on shramik trains and trains not reaching the destination. According to the data from Railway Protection Force, almost 80 persons have died on Shramik Special trains. According to a few reports, the special trains initially were not providing any food or water. The trains were running without any pantry services. The railways and government faced severe criticisms. Only after such criticism, they started pantry services.[5] The railways and government subtly blamed the extraordinary times and the health issues of the workers who died on the train. The Solicitor General said to the Supreme Court denying all the allegations related to the deaths of workers on special trains. He said that no death of migrant worker happened due to lack of food or water or medication. They died because of their poor health. The government did not publish any official data relating to the deaths of migrant workers during the lockdown. There is no official report on the reasons behind the death of migrant workers. 

CONCLUSION 

The Central Government, State Governments and Supreme Court all three of them added to the plight of migrant workers. Instead of helping these people, they turned their eye and blamed these poor people for their miseries. The lack of coordination and the inventiveness of both governments lead to the cancellation of trains and trains losing their route. The central government ill-planned lockdown forced these workers to walk on the road to reach their native places. Some walked barefoot, some walked with small children, and some pregnant ladies walked carrying all their belongings. The government refused to acknowledge their problems and left them on their own. The CourtCourt did not take action on time and made some bizarre statements acting like they can’t help in such a crisis. While the government and CourtCourt failed, the media and citizens reached out to these people. There are several interviews and reports on how citizens helped these people by providing food and shelter. Few celebrities also came forward to help these workers. The Covid-19 did not only lead to economic and health crisis but also a humanitarian crisis. It exposed our broken system. It made us think for the most neglected group of our society and forced us to imagine how our big cities will survive without them?  


Manasvi Bhatt is a fourth year student from University of Petroleum and Energy Studies, Dehradun .


[1]Rukmini S, Why India’s’ Migrant’ Walked Backed Home(May 28, 2020, 5:21 AM)  ,https://www.livemint.com/news/india-why-migrants-walked-back-home-11590564390171.html

[2]Rohini Chatterjee, Migrant Workers Have Died Almost Every Day Since May 8 Aurangabad Tragedy(May 5, 2020, 1:21 PM), https://www.huffingtonpost.in/entry/migrant-workers-killed-lockdown_in_5ebcfdfbc5b63dbb671141d8

[3]Jagdeep S. Chhokar, Migrant Worker Crisis: The Supreme Court Has Abdicated All Responsibility(May 19, 2020), https://thewire.in/law/supreme-court-migrant-workers-crisis-abdicate-responsibility.

[4]Ibid.

[5]The Wire Staff, Almost 80 Persons Have Died on Board Shramik Special Trains( May 30, 2020), https://thewire.in/government/almost-80-persons-have-died-on-board-shramik-special-trains.

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

THE TRANSGENDER PERSONS ACT, 2019: AN INHERENTLY FLAWED LEGISLATION

Source – Arre

Pragya Upadhyay and Aayushi Jha, both 1st year students of Chanakya National Law University, Patna analyzes various attributes of The Transgender Persons Act, 2019 which was signed into law by the President of India on December 5, 2019.

The Vedas explicitly describe every person belonging to one of the three separate categories, classified as pul-ling (male), stri-ling (female) and napunsak-ling (third gender) according to one’s respective nature.[1] The third gender or ‘Transgender’, is defined in the dictionary as a person whose gender expression differs or does not correspond with the sex assigned by birth. In some areas, they are also known as ‘Aruvani’ and ‘Jogappa’.

It is an undisputedly fact that India is a democratic sovereign nation; which essentially means that the government is by the people, for the people and of the people. 

This necessarily entails that the government is supposed to protect people and work for the upliftment of the downtrodden by enacting different rules and regulations in the form of laws that are unbiased and impartial. This treatment by the government becomes even more crucial where a country like India is concerned; a country that is drenched in deep-seated prejudice, superstitious notions and highly flawed moral grounds. Not to discourage or overlook the progressiveness that can be seen in recent times, mobilized by landmark decisions of the judiciary and the rock-solid voice of the masses; the silver lining can be attributed to the rapid and astonishing development in the mindset of the country’s youth, but some facets still leave a lot to be desired.

The society we live in is largely gender-specific owing to which, and that includes ignorance and the stigma surrounding the community, the society does not want to acknowledge the plight of the transgender community. If at all their presence is acknowledged, they are mostly portrayed in a negative light; contrary to the time when they enjoyed power and prestige in the Mughal era where they were the middle rung of power.[2] 

The community has had to face extreme prejudice and marginalization, and it still reflects in the condescending attitude, not only of the common people but also of the laws that govern them. In a gender-specific India, where discrimination and other transgressions against transgender people are fundamentally rooted, appropriate legislation is required to uphold equal access to the law.

The Transgender Persons (Protection of Rights) Act, 2019 is an act of the Parliament of India, to provide for the protection of rights of transgender persons, their welfare, and other related matters. Nevertheless, the 2018 bill, which was preceded by a 2016 version, was met with protests and criticism by trans groups, lawyers, and activists in India. The 2016 bill received significant backlash following which the Lok Sabha drafted an amended version of the Bill and passed it in December 2018. However, it failed to accommodate many of the committee’s recommendations. Members of the opposition in Rajya Sabha, despite criticizing the Bill and assuring transgender people of not voting in favour of it, passed it on Nov. 25 2019. On Dec. 05, 2019, it was signed into law by the President of India.[3]

This Act aims at protecting the rights of the transgender persons. It prohibits the discrimination against a transgender person, including denial of service or unfair treatment about education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public, right to movement, right to reside, rent, or otherwise occupy the property, opportunity to hold public or private office and access to a government or private establishment in whose care or custody a transgender person is. 

The plight of the transgender is not unknown but more often than not, goes unnoticed. The Act, even though fairly incomprehensive and inadequate on various fronts, is a positive step forward to a more gender-inclusive society; however, the fact remains that the negatives of the Act greatly outweigh the positives.

Human sexuality and its identification have such a wide spectrum that restricting it to one word in this case “transgender” is a gross incidence of ignorance towards a significant and relevant section of the society. 

The activists put forth the contention that ‘Transgender’ was restrictive, and it showed a lack of understanding of the complexities in people who do not conform to the gender binary, male/female. The fact that all persons with intersex variations and queers to have been pigeonholed as a transgender further underscores how the definition has been oversimplified and not properly thought through.

Further problems arise from the numerous erroneous propositions that plague a law that is supposed to be progressive. A few of these errors were rectified before the Bill was passed and designated as an act of parliament. Still, the problems left untouched put a dark shadow over the intentions to create an atmosphere that is inclusive and accepting of a section of society that has been subjected to all kinds of mockery, ostracisation and abuse.

 While the Act is progressive in that it allows self-perception of identity, it mandates a certificate from a district magistrate declaring the holder to be transgender. This goes against the principle of the self-determination itself; also, there is no room for redress in case an appeal for such a certificate is rejected. One long-pending demand has been to declare forced and unnecessary sex reassignment surgery illegal and to enforce punitive action for violations. 

 The identity certificate will only identify people as transgender and not as male or female unless the person has undergone a sex reassignment surgery and can provide proof thereof. A revised certificate may be obtained only if the person undergoes surgery to change their gender either as a male or a female. 

It infringes upon the right of the transgender people to decide their gender identity, which was recognized in the landmark judgment NALSA v. UOI[4] and that is problematic. This Bill gives discretionary powers to the District Magistrate to decide upon a transgender’s gender identity. Furthermore, even though the Bill impliedly mandates sex reassignment surgery to be identified as a male or female, the Bill does not specify if any fee relaxation would be given considering the fact that most of them live on low income that translates to living in poverty. 

The Act does not provide for employment opportunities through reservations, disregarding the directions of the apex court in the NALSA judgment. While we see snippets of transgender people rising to respective ranks in society, they are far and few in between and lack the support that a similarly abled cis individual gets.

In hindsight, to do away with the criminalization of beggary was a welcome move from the government even though it remains a sad fact that the people of the marginalized committee had to fight for this limited chance of livelihood that the society provides them.

Perhaps, the most astonishing provision of this act is that it treats rape/sexual assault of transgender persons as different from the cis-gendered individuals and gives a punishment of a maximum of 2 years as compared to 7 years in the case of the latter. This showcases the blatant disregard that the government has for this community resulting in making them feel less of a person; grossly violating their fundamental rights.

It is important to understand that to bring about an active upliftment of the transgender community, it is pertinent to give them sovereignty over their own bodies and how they embody gender identity. This is important to not put any unnecessary financial strain and not make them vulnerable to discrimination by the authorities.

The community remains highly disappointed that the Bill has become an Act without any efforts to make valid or relevant changes to its original composition; it is also highly worried and suspicious of the implementation of the act and its consequences. The activists hope that the National Council for Transgender Persons will allow for a more favourable implementation of the law and thus provide more elbow room for genuine representations of the community that the law has failed to accommodate; resurrecting a progressive and encouraging regulation that has the potential to play a pivotal role in the strength of an inclusive nation.


Pragya Upadhyay and Aayushi Jha are first year law students of Chanakya National Law University,Patna.


[1]Kashish Singh, Transgender People In Vedic Times, Medium (Apr.05, 2020, 10:00 AM) https://medium.com/@kashishsingh2002/transgender-people-in-vedic-times-59aba4334ed9.

[2]Adrija Rowchowdhury, When Eunuchs were the mid rung of power in the Mughal Empire, The Indian Express (Apr. 05, 2020, 10:30 AM) https://www.google.com/amp/s/indianexpress.com/article/research/eunuch-security-guards-bihar-mughal-empire-history-5266102/lite.

[3]Transgender Persons (Protection of Rights) Act, 2019 Bill No. 169 of 2019.

[4]National Legal Services Authority v. Union of India WP (Civil) No. 400 of [2012].

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