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Automated Facial Recognition System: Dawn of a new era in policing

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Recently on 11st August,2020, the hon’ble UK Court of Appeal (Civil Division) in a case titled ‘R. (Bridges) V. The Chief Constable of South Wales Police’, bearing Case No: C1/2019/2670 rendered a landmark judgement dealing with the interrelation of policing, right of privacy, data protection regime, human rights, public sector equality duty visà-vis the Automated Facial Recognition System (AFR). The hon’ble Court has made pertinent observations which would, undoubtedly, set the tone for its future development in India and worldwide. 

The case relates to two events on 21st December, 2017 and 27th March, 2018 at Queen’s street and Defence Exhibition at Motorpoint Arena respectively wherein the South Wales Police (SWP) had deployed AFR for the purpose of surveillance of the visitors/protestors. It was the case of the Appellant i.e. Mr. Edward Bridges that the Police Force had not taken sufficient steps to inform general public about the use of AFR at the area in question thus the same resulted in violation of provisions of different statues viz. section 43 of the Data Protection Act 2018 (DPA), section 149(1) of the Equality Act 2010 (EA Act), noncompliance of Surveillance Camera Code of Practices etc. thus resultantly it was an disproportionate and excessive invasion on the right of privacy of the concerned individuals. He further contended lack of legislative framework regulating the usage of AFR.

 The Divisional Court of the Queen’s Bench Division (Lower Court) had dismissed the Appellant’s claim for judicial review challenging the legality of the use of AFR on the two events, however the Appellate Court i.e. Court of Appeal, after extensively discussing the international law on this subject, allowed the appeal and observed that the afore-said two events did in fact in violate the DPA, EA Act and the European Convention on Human Rights. The hon’ble Court observed in Para 152 of the judgement that ‘AFR Locate fails to satisfy the requirements of Article 8(2), and in particular the “in accordance with the law” requirement, because it involves two impermissibly wide areas of discretion: the selection of those on watchlists, especially the “persons where intelligence is required” category, and the locations where AFR may be deployed.’ Further, the Court went on to opine in Para 164 that ‘It is said that there is scientific evidence that facial recognition software can be biased and create a greater risk of false identifications in the case of people from black, Asian and other minority ethnic (“BAME”) backgrounds, and also in the case of women.’

 Likewise, in America also the use of AFR has drawn strong flak from various sectors for it being a tool of mass surveillance, lack of adequate statutory framework regulating the use of AFR, encouraging racial profiling etc. So much so that it has compelled several companies to temporarily put a moratorium on its use in America for some time until adequate law in this regard is enacted.

 India has also approved the implementation of AFR with the objective of having ‘A robust system for identifying criminals, missing children / persons, unidentified dead bodies and unknown Traced children/persons all over the country…Enhanced ability to detect crime patterns and modus operandi across the states and communicate to the State police departments for aiding in crime prevention’. The National Crime Record Bureau (NCRB), under aegis of the Ministry of Home Affairs (MHA), is the nodal agency overseeing its implementation and is posed to be the world’s largest database of Auto Facial Recognition System in 2021.

 Use of AFR: A double-edged sword 

Although, the AFR would result in more efficient and productive policing considering that its ability to screen mass gathering of people in matter of few seconds which would be very useful considering that India’s huge population, aid in early and timely identification of any miscreants/history shetters etc. It may be pointed out that the use of cameras for the purpose of surveillance is not something out of the blue; and it has been used and continues to be used in India and abroad at various public places such as Museums, Stadiums, Courts, offices and even at schools and colleges. The advocators of the AFR have often supported their use citing proof of documentary evidence in case of any untoward incident. The hon’ble High Court of Delhi in case titled ‘Daniel George V. Government of Nct of Delhi’, bearing W.P. (C) 7083/2018, is currently hearing a plea seeking removal/ban of CCTVs in Delhi schools and as of now to the best of author’s knowledge no stay has been granted by the Court.

 It is very likely that in India also AFR would have to withstand strict judicial scrutiny on several account of several legal, regulatory and policy issues accounts such as its apparent invasion on the right of privacy of an individual which has been time and again been recognized as a fundamental right under the Article 21 of the Indian Constitution (See for example Justice K. S. Puttaswamy V. Union of India, (2017) 10 SCC 1 aka the Privacy case), its interrelation with the yet to be enacted Date Protection Bill, 2019, purported violation of Articles 14, 19, 21 of the Indian Constitution etc. In addition to this, several other pertinent legal questions would also arise as to whether surveillance by AFR/State would satisfy the triple test of legitimate state purpose, existence of corresponding law, proportionality as propounded by the hon’ble apex court in the privacy case, further, whether the use of AFR has the potentiality of turning India into ‘Orwellian State’ is also one of several factors which has to be looked into. Perhaps, one could in this regard take a cue from the recent hon’ble Supreme Court judgement in K. S. Puttaswamy v Union of India (Aadhaar case), (2019) 1 SCC 1, to understand some of the myriad legal and factual aspects which could be an obstruction in the successful deployment of the AFR in Indian sub-context. 

The Way Forward

 Enactment of a specific legislation on AFR would be correct way foreword which would inter-alia establish a central and a state authority to oversee its nationwide and state-wise implementation in a phased and controlled manner, detailed guidelines on the storage, preservation and security of data etc.

 Further, Standard of Procedure (SOP) on the use of AFR could also be prepared after taking into consultations the views of various stakeholders which could inter-alia enlists the manner and extent of publicity of usage of cameras at the proposed site, password protected access to data that too after written consent from a designated authority, automatic deletion of data after a specific period of time etc. The afore-said steps could to a certain extent ally the concerns of infringement of privacy bearing in mind that no fundamental right be it the right of privacy or any other is an absolute right and, if the situation so warrants, it must yield to compelling public and societal interest, thus what is required is a balance of two competing interest i.e. uses of AFR for better Policing vis-à-vis the fundamental rights of an individual.

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Opinion

NCLT has no jurisdiction to examine legality of action taken under MPID Act: Bombay HC

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In a fresh and significant development, the Bombay High Court in a latest, landmark and laudable judgment titled The State of Maharashtra Through the Deputy Collector & Competent Authority (NSEL) V/s Anil Kohil in Writ Petition No. 3396 of 2019 With Civil Application No. 29 of 2020 delivered recently on 9 November 2020 has pronounced in most certain terms that the National Company Law Tribunal has no jurisdiction to examine the legality or validity of action taken under Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (MPID Act) and it is only the designated Court constituted under Section 6 of the said Act that will have exclusive jurisdiction to deal with the same. The Division Bench of Justice SC Gupte and Justice Madhav Tamdar quashed and set aside the order dated January 28, 2019 passed by the Member (Judicial), National Company Law Tribunal, Mumbai Bench directing the de-freezing of bank account in the name of Dunar Foods Ltd, which was freezed in relation to the National Spot Exchange Limited (NSEL) payment default crisis. This certainly has to be complied with now.

To start with, it is first and foremost enunciated in para 1 that, “In the present case a very interesting question arises as to whether action taken under the provisions of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (hereinafter referred to as “MPID Act”) against a “Financial Establishment”, as contemplated under the MPID Act, can be challenged not before the Designated Court under the MPID Act but before the National Company Law Tribunal (hereinafter referred to as “NCLT”) by resorting to the remedy provided under the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as “I.B. Code”). On the application of a “Financial Creditor” as contemplated under I.B. Code, an Interim Resolution Professional (hereinafter referred as “IRP”) is appointed by NCLT by exercising power under section 7 of the I.B. Code against the Corporate Debtor as contemplated under I.B. Code, which is also the Financial Establishment under the MPID Act and de-freezing of the corporate Debtor’s account attached in MPID proceedings is ordered. This order is the subject matter of challenge in this petition.”

While setting the background, it is then put forth in para 4 that, “The State of Maharashtra through the Deputy Collector and Competent Authority (NSEL), by the present Writ Petition filed under Article 226 and 227 of the Constitution of India , has approached this Court challenging the legality and validity of the order dated 28/01/2019 passed by the Member (Judicial), National Company Law Tribunal, Mumbai Bench in M.A.No.1372/2018 in CP(IB)-1138(MB)/2017. By the said order, National Company Law Tribunal (NCLT) directed de-freezing of bank account No.1952320006245 in HDFC Bank, Karnal, Haryana, (hereinafter referred to as “said account”) in the name of Dunar Foods Ltd.”

While dealing with factual aspects, it is then laid down in para 5 that, “Some of the factual aspects set out in the petition are as follows :

(i) An FIR being C.R.No.216/2013 was registered against Financial Technologies (India) Ltd. (hereinafter referred to as “FTIL”) now known as “63 Moons Technologies Ltd.”, the National Spot Exchange Ltd. (hereinafter referred as “NSEL”), the Directors and key management persons of FTIL and NSEL, 25 borrowers/trading members of NSEL, some brokers of NSEL, and others, under sections 120B, 409, 465, 467, 468, 471, 474, 477(A) of the Indian Penal Code, by the M.R.A. Marg police station on 30/09/2013. In the said FIR, the first informant had alleged that NSEL had caused wrongful loss of about Rs.2.2 crores to himself, and wrongful loss of approximately Rs.5600 crores to more than 13000 investors. On the same day, i.e. on 30/09/2013, the investigation into the said case was transferred to Economic Offence Wing, Mumbai (hereinafter referred to as “EOW”), who registered EOW C.R. No.89 of 2013. The EOW applied the provisions of the MPID Act to the said C.R. in October 2013.

(ii) NSEL is a company registered under the Companies Act, 1956 having its registered office at Chennai, Tamil Nadu. The NSEL provided an electronic platform for spot trading in commodities, and used to operate from 16 States across the country. The NSEL was promoted by FTIL, now known as “63 Moons Technologies Pvt. Ltd.”, which holds 99.99% of the share capital of NSEL. The balance 0.01% of the share capital of the NSEL is held by the National Agricultural Co-operative Marketing Federation of India Ltd. (hereinafter referred as “NAFED”).

(iii) In the petition, a reference has been made to notification dated 05/06/2007 and further notification dated 06/02/2012 issued by the Department of Consumer Affairs, Ministry of Consumer Affairs, Government of India (hereinafter referred as “DCA”) by which exemption was granted to NSEL from the operation of the Forward Contracts (Regulation) Act, 1952 (hereinafter referred as “FCRA”) for all forward contracts of one day duration for sale and purchase of commodities traded on its platform subject to certain conditions.

(iv) In the Writ Petition, the manner in which NSEL was working has been set out in detail.

(v) As per the FIR, during the initial contracts, member companies squared off the contracts on the dates of maturity. However, later on, these companies did not honour their commitments and caused wrongful loss of about Rs.5600 crores to about 13000 investors. The members of the NSEL fraudulently obtained huge funds from the NSEL against non-existent stocks of commodities. There was a semblance of trading, which was actually being done in non-existent goods, by issuing forged warehouse receipts. Further, the warehouses, which were an integral part of the NSEL as the commodities were required to be deposited in the exchange designated and certified warehouses as part of the pay-in obligations, lacked capacity and some of them had no stocks.

(vi) The NSEL vide their circular dated 14/8/2013 announced a settlement schedule. According to this schedule, NSEL had to make payouts of Rs.5,574.31 crores to its members. The settlement calendar announced by NSEL was spread over 30 weeks for pay-out on pro-rata basis to 148 members. The NSEL subsequently defaulted in all the payouts since the announcement of the settlement plan.

(vii) The investigation revealed that the mode of transaction that the NSEL was allowed by the Government of India was not followed by the NSEL, and that the NSEL had promised attractive returns to persons who had traded on the NSEL platform. The NSEL had assured them that if they entered into a contract on T+2, they would get an attractive return of 14% to 16% on the completion of the contract on T+25.”

While elaborating further, it is then set out in para 6 that, “As set out hereinabove, the FIR was registered on 30/09/2013, and after investigation, the EOW filed charge-sheet on 06/01/2014 in EOW. C.R. No.89/2013 in MPID Court, Mumbai. EOW thereafter filed supplementary charge-sheets from time to time including on 04/06/2014, 04/08/2014 and 27/12/2018. It is set out in the petition that as provisions of MPID Act were made applicable, the Government of Maharashtra vide notification dated 28/08/2014 issued under section 4 of the MPID Act attached several properties of several companies including Lotus Refineries Pvt. Ltd., White Walter Foods Pvt. Ltd., Shree Radhey Trading Co., Vimladevi Agrotech Ltd., Mohan India Pvt. Ltd., Tavishi Enterprises Ltd., Brinda Commodity Pvt. Ltd., Ark Import Pvt. Ltd., P..D.Agroprocessors Pvt. Ltd., Aastha Minmet India Pvt and Juggernaut Projects Ltd., White Water Foods Pvt. Ltd., Swastik Overseas, MSR Foods, Loil Continental, Loil Health Foods Ltd., Loil Overseas Foods Ltd., Spin Cot Textiles Pvt. Ltd., NCS Sugars Ltd., Metkore Alloys and Industries Ltd., Yathuri Associates, Namdhari Food Internation Pvt. Ltd., Amdhari Rice and General Mills and of Dunar Foods Ltd. It appears that during investigation, as and when the Investigating Agency got knowledge about properties of various companies/persons to which the provisions of MPID Act in relation to said FIR could be applied, necessary notifications under section 4 were issued by Government of Maharashtra attaching immovable and movable properties. By the notification dated 19/10/2018 various properties belonging to various parties were attached including of M/s.E.D. Agro Procedures Pvt. Ltd. and Dunar Foods Pvt. Ltd. including the said account. In this petition, we are concerned with defreezing of the said account which is subject matter of the impugned order dated 28/01/2019.”

Going forward, it is then put forth in para 7 that, “When the said investigation by EOW was going on and when the authorities were taking action under MPID Act, simultaneously on 27/06/2017, the State Bank of India, a Financial Creditor of M/s. Dunar Foods Ltd., invoked the jurisdiction under section 7 of the I.B. Code for the defaulted financial debt of Rs.758,73,62,546/- outstanding against the Corporate Debtor M/s.Dunar Foods Ltd. In the said proceedings, by the order dated 22/12/2017, the said petition was admitted by the NCLT and Mr. Anil Kohli was appointed as IRP and directed to comply with provisions of sections 13 and 15 onwards of the I.B. Code. It was further directed that as the petition was held fit for “admission”, hence as a consequence Moratorium as prescribed under section 14 of the I.B.Code would commence. It was further directed that on enforcement of Moratorium, certain prohibitions were applicable, such as institution of any Suit before a Court of Law, transferring of any Asset of the Debtor, encumbering any rights over the assets of the Debtor. However, it was also clarified that the supply of essential goods of services to the Corporate Debtor shall not be terminated during Moratorium period. It shall be effective till completion of the Insolvency Resolution Process or until the approval of the Resolution Plan as prescribed under section 31 of the I.B. Code. Accordingly, the said petition stood admitted. The Corporate Insolvency Resolution Process commenced from the date of the order.”

In hindsight, it is then mentioned in para 8 that, “It is significant to note that on 20/02/2018, M.A.No.237/2018 was filed by Dunar Foods Ltd. through IRP under section 9 of MPID Act before the Designated Court under MPID Act, seeking direction to defreeze the bank accounts of Dunar Foods Ltd. attached pursuant to the notifications issued by the Home Department of Government of Maharashtra under the MPID Act from time to time and seeking further direction to the Competent Authority designated under MPID Act to forthwith handover all assets of Dunar Foods Ltd. to the Applicant. By the order dated 28th December, 2018, passed by the learned Special Judge (MPID Act) City Civil and Sessions Court for Greater Bombay passed below Exhibit-1 in Miscellaneous Application No.237 of 2018, the said application was rejected, however, it was clarified that IRP was at liberty to raise objections before the Court under section 7 of the MPID Act.”

Of course, what cannot be ignored is then stated in para 9 that, “In the meanwhile, on 12/11/2018, M.A.No.1372 of 2018 in C.P.No.1138/I & BC/NCLT/MB/MAH/2017 was filed by IRP for Dunar Foods Ltd. under section 60(5), 14(1a) and 74(2) of I.B. Code before the NCLT, seeking direction to de-freeze the said account of the corporate debtor attached pursuant to the notifications issued by the Home Department, Government of Maharashtra under MPID Act from time to time and consequential directions to the Respondent, being the Competent Authority designated under MPID Act, to forthwith handover all assets of Dunar Foods Ltd. to the Applicant. It is further prayed that action be directed to be initiated under section 74(2) of the Code against the concerned officers of the corporate debtor for deliberate and willful violation of section 14 of the Code. A detailed reply dated 15/01/2019 was filed by the Deputy Collector and Competent Authority (NSEL) to M.A.No.1372/2018. By the impugned order dated 28/01/2019, passed by the learned Member (Judicial) NCLT, Mumbai Bench, M.A.No.1372/2018 was partly allowed by directing defreezing of the said account. The said order is challenged by the State of Maharashtra through Deputy Collector and Competent Authority, (NSEL) in the present writ petition.”

To put it succinctly, it is then pointed out in para 28 that, “The Respondents have also relied on the judgment of the Designated Court under the MPID Act at Bombay City Civil and Sessions Court, Mumbai in Roofit Industries Limited Vs. The State of Maharashtra in MPID Special Case No. 34 of 2004. A perusal of said order dated 18.08.2017 passed by the Special Judge, MPID Act clearly shows that provisions of I.B. Code were pointed out to the Court and after giving hearing to Competent Authority, depositors, objectors and others, Competent Authority and EOW were directed to hand over certain properties to the Applicant in the said case who claims to be an Interim Resolution Professional appointed by the NCLT for Roofit Industries Ltd. The operative portion of said order dated 18.08.2017 is reproduced herein below:-

“ORDER

1. Application is allowed.

2. Competent Authority and EOW is directed to hand over to applicant/intervener the custody and charge of the immovable properties mentioned at Sr. No. 8,10, 12,16,17,18,19, 20 and 23 of the notification dtd. 06.05.2016 alongwith all documents, record etc., within two weeks from today. They are further directed to handover to applicant office equipment, computers, furnitures and fixture in premises at Sr.5 and 24 of the notification.

3. The Competent Authority and EOW are directed to hand over amount of Rs.40 Lakhs alongwith accrued interest, if any to the applicant, within two weeks from today.

4. The Competent Authority is directed to the represent all depositors/investors before the applicant/intervener and to file the claims on their behalf. CA shall do all acts necessary for safeguarding and protecting the interest of depositors in Roofit Industries.

Date: 18.08.2017 A. S. Kaloti

Special Judge, M.P.I.D. Act & Addl. Sessions Judge,

City Civil & Sessions

Judge At Bombay.

Thus, even the said order, on which reliance is placed by the Respondents, shows that the IRP in that case approached the Designated Court under the MPID Act and after hearing all the parties, an order was passed and certain directions in the interest of depositors as contemplated under the MPID Act were also issued.”

For the sake of clarity, it is then clarified in para 29 that, “The learned counsel for the Petitioner has also relied on the judgment of NCLAT in the case of JSW Steel Ltd.(supra) wherein it has been held that the action of Directorate of Enforcement did not meet the criteria under Section 32-A (1) (b) of I.B. Code. However, in the present case, the Designated Court under MPID Act will examine the said aspect and therefore, the said judgment is not applicable to the present case.”

In the ultimate analysis, the Bench then holds in para 30 that, “Thus, in view of the above discussion, we hold that the NCLT has no jurisdiction to examine legality or validity of action taken under MPID Act and it is only the Designated Court constituted under Section 6 of the MPID Act that will have exclusive jurisdiction to deal with the same. Therefore, the impugned order passed by the NCLT is without jurisdiction and therefore, amenable to a challenge in our writ jurisdiction.”

Quite significantly, it is then held in para 31 that, “Thus, it is clear that the only remedy for Respondent-IRP is to approach the Designated Court under Section 7 of the MPID Act. Therefore, the impugned order passed by NCLT by which the said account was directed to be de-freezed, is without jurisdiction. The learned AGP has rightly relied on the judgments in Whirlpool Corporation (supra), Harbanslal Sahnia (supra), Committee of Management(supra) and Godrej Sara Lee Ltd. (supra) wherein it is consistently held that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any fundamental right or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Now coming to the concluding paras. Para 32 states that, “In view of above discussion, we quash and set aside the order dated 28/01/2019 passed by the NCLT in M.A.No.1372/2018 in C.P.No.1138/I & BC/NCLT/MB/MAH/2017 by which the said account was directed to be de-freezed. The Respondents can approach the Designated Court under section 7 of the M.P.I.D. Act seeking appropriate reliefs. We have not dealt with the merits of the case and the contentions in that behalf are expressly kept open. Rule is made absolute in above terms with no order as to costs.” Finally, it is then held in the last para 33 that, “In view of disposal of the Writ Petition, Civil Application No.29 of 2020 does not survive and is disposed of as such.”

Quite rightly, the two Judge Bench of the Bombay High Court comprising of Justice SC Gupte and Justice Madhav Tamdar have substantiated this notable judgment with logical and learned reasons rightly while also noting that the only remedy for the IRP now is to approach the designated court under Section 7 of the MPID Act and set aside the NCLT’s order. It has rightly held that NCLT has no jurisdiction to examine the legality or validity of action taken under MPID Act. It has to be now complied with. There can certainly be no ever denying or disputing it!

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Opinion

India’s European dilemma as a ‘Vishwa Shishya’: Strategic delusions & idea-centrism issues

Abhivardhan

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The year 2020 marks the shedding of ideological obscuration amidst democracies. Geopolitics and the face of ‘realpolitik’ is undoubtedly at the centre of many problems and avenues that the world accordingly faces. India’s dilemma therefore – is different. In many aspects, India has a fortunate position, unlike EU and the US, which we must never ignore. In terms of constitutionalism, India can learn the social coherency and the urge of credibility towards its institutions from Europe, while in terms of the of the dynamic nature of a democracy and its three sections, it can certainly learn from the US. In terms of strategy and information warfare, India needs to learn from Israel and Russia. In addition, in terms of harnessing the global supply chain and enabling the middle class in India to grow, it can learn, if not inspire from China, Bangladesh and Japan. However, to learn is different from the art, handiness and clarity to adopt or implement. For years, India has been a different ‘Vishwa Shishya’ (term coined by Harsh Gupta, one of the authors of ‘A New Idea of India’), where even the understanding of the term is not as literal as the term even depicts. Vishwa Shishya means someone who can be a ‘disciple’ of the world, in a rigorous, focused and devoted manner. For a constitutional cum civilizational state like India, the internal and exterior annals of learning and relationship towards the world itself have been crispy, confusing and improving. No disciple is perfect, and it is certain that there are strategic, constitutional and economic backlashes that are faced in general. Therefore, even if Europeans or Americans see India differently in a technocratic or Newtonian manner, the depiction itself is not complete, neither absolute.

Even if you see the 6 stages of Indian Foreign Policy as beautifully explained by India’s External Affairs Minister, Dr S Jaishankar in the 4th Ramnath Goenka Lecture, 2019 – then you will find that the 2nd and 3rd phases of vulnerability, recovery and regional assertion flipped India’s earlier ideological connectivity with Nehruvian Socialism (political and economic). The social faction of Nehruvian Socialism met its gradual end in the 4th and 5th phases, when economic growth and balancing ties with the US, China and Russia was important. Despite the fact that in the matters of politics, society and economics, there are still some percolations or strands of degeneracy of India’s civilizational ethos, there is no doubt that a sense of revival is imminent, which will be more or less a struggle, for not a long time. The current stage of energy diplomacy, which India stepped in since 2014, has been adventurous – and is reaching the logical conclusion of its beginning in 2020, which was fast because of the expose of the global conditions due to one pandemic. However, the impact is still not much significant, because rebounding and strategic protectionism will drive countries to become competitive. India and ASEAN countries are at the verge of the same. In fact, towards the likelihood or non-likelihood of Joe Biden winning the US Presidency, India is seeking an outreach towards the Democratic Party with the hope that the US is still bipartisan. Under Joe Biden, this would seem calculatedly true (if he wins), and this therefore must not be ignored. Considering the mess that the US Presidential Elections 2020 have become, and the Democratic Party’s deep divisions within, it is clear that the benefit of doubt over the transformation of the realpolitik conditions of the international community will be now central to two important regions – the Indo-Pacific up to the Far East & continental Europe. The article attempts to declutter India’s dilemma towards Europe over two important issues – strategic delusions and idea-centrism.

India and Europe – Moderate & Natural Partners

There is no doubt in asserting that India and Europe are moderate natural partners, in areas such as trade and environment. A report from the European Parliament also suggests that the potential impact of an EU-India trade agreement at between €8 billion and €8.5 billion gains from increased trade for both sides, with a more noteworthy upsurge of trade gains likely towards the Indian side. The study also refers to additional potential gains from enhanced coordination on the provision of global public goods, such as environmental standards. Even in culture, Europe and India are not far, but closer in a reasonable manner. The EU in India organizes cultural fests with the Indian Government and participates in the dialogues and consultations openly. Even Ambassadors from European countries are open to participate with India reasonably. However, the real issue begins when India and Europe, at social levels, clash. This clash is not civilizational, but has both ideological and cultural aspects, which exists, and is not affably even noticed properly by the European community, if is done by the Indian community. The problems, which affect the coherence of cultural-personal relationships between India and Europe are ethnocentrism and Eurocentrism.

There is no doubt to expect that Europe and India do share some common worldviews, which in general is not so close, if can be near to coherency. Whenever we estimate the US’s views on India, we often jump on Hinduphobia and the Kashmir question/affinity towards Pakistan or kindness towards the Muslim Brotherhood, which is merely a limited angle to see the trajectory of Indo-US relations. Similarly, the argument kept that ethnocentrism and Eurocentrism exists as a problem is not merely a monolith of differences over religion and human rights, because the issue of Hinduphobia, like in the US, is more related to the lack of awareness and consciousness in culture policy and diplomacy, which very few Non-Resident Indians reflect in the Americas and Europe, unfortunately. The problems that India as a civilizational state faces, are definitely real, but cannot be overestimated, nor exaggerated. Same applies to those people, who exaggerate Eurocentric world views and act ethnocentric over India and its internal political and social problems – like they intend to do in the case of Africa as well. This exaggeration, has been at peak in the US for long, if not is so much in Europe, where a set of people taint the Indian worldview unreasonably. India’s communication and counter-information strategy has been weak and unfit, which is not completely owed to the Indian Government’s mistakes in dealing with information warfare from the West. In fact, the burden must be shared by the Eurocentric and ethnocentric Western media, which has not been non-partisan for a long time, despite the fact that colonialism and cold war mentality are over. Ideological obscuration, therefore is not the basis of European worldview, in completion, but it also does not mean that Europe cannot suffer from the lasting effects of lack of cultural sensitivity and mobility. The mobile and supportive behaviour of the Central and Eastern European bloc towards India has been a positive act, and will help foster better Indo-EU relations. Inviting center-right and few far-right MEPs to visit the Union Territory of Jammu & Kashmir in 2019 is not an ideological move, because Eurocentrism is not just the disease of those leaders, who are socialists (even libertarians and conservatives have a lack of awareness of India’s cultural sensitivity and mobility) & so, even Christian conservatives, and libertarians could have made mistakes in understanding the Indian state. Fortunately, the feedback was positive enough, which is a significant win for India. Even the uproar over the Citizenship Amendment Act of 2019 was unfounded – because the classification of a particular set of people given for the purpose of citizenship into India, does not bar people from earning citizenship into India through legal means, which is naturalization (for outsiders). Unless the Citizenship Amendment Rules of 2020 or 2021 come, no absoluteness over the same matter can be reckoned by the European side over the constitutionality of the Act, and thus, even this claim is unfounded.

Strategic Delusions and its Percolation

Now, why ethnocentrism and Eurocentrism is not myopic to the Indian Government, but to Europeans? Is awareness the only reason? Perhaps not. Europe is very much open in terms of engagement and diversification, and blaming a set of Far-Left/Far-Right political leaders is just an unreasonable method to deal with the problems India and Europe have had for some time. In this century, the European Union needs a defence arrangement (to end the over-reliance on NATO for good), to reckon a non-defeatist and science-security-centric technology leadership (which is being fought among China, the US, India and ASEAN, to name some) and finally, a relevant global competition policy (which is urgent considering the expansionist designs of China in Eastern Europe and the Scandinavian region). In all 3, the situation is quite not much grown, and the migration crisis has already caused some Central and European States to ignore the EU over migration. Although migration is an issue of zero concern to India, there is no doubt that India is eager enough to be patient to seek a revitalized and transformed Europe, which can balance populism and political correctness, like Emmanuel Macron over Islamist extremism, which Angela Merkel could never be able to do so. India’s arduous support of Macron and his diplomatic and personal dignity is not a populist anti-Muslim move, but a clear indication of what reformed multilateralism looks like.

Also, the US is more damaged as an institutional democracy, which is owed to the 12 years of over-personalization of the sanguine nature of the Presidency it relies on. Frankly, it is a bipartisan failure, of both the Democrats and the Republicans, but considering that the Republican party intends to move forward and not endorse Donald J Trump’s rants, they will never ignore the achievements of the 45th President – but rather capitalize on the same reasonably. The Democrats however, have some really bad years ahead due to their stance over the Critical Race Theory, and the Black Lives Matter campaigning, which in no way helps the minorities. In fact, as per the AP VoteCast survey on the US Presidential Elections 2020, around 35% Muslims voted for Donald J Trump, including a more diverse coalition of women, Latino and black voters. The white vote has plummeted, which is insanely interesting. Also, the House Republicans have gained amassed benefits in their numbers, even if they cannot grab the majority this year, which shows that the end of a Trump Presidency, will undeniably lead to a degeneracy and decay of the democratic socialists and cultural Marxists, who dominated the image of the Democratic Party for long, and destroyed their credibility around the world. The relationship between democratic socialists and cultural Marxists in the US & Europe is also not unfounded. However, considering France and Germany’s unison over resisting political Islam and China, which will be significant in Europe in the coming years, the political disease of eurocentrism is set to be cured better, thus making the European political faction cautious about their worldviews. A reasonable definition of anti-Semitism also has been adopted by the Global Imams Council, which is a reasonable move, not only in the eyes of UAE and Saudi Arabia, but also the European right, which has to stand up reasonably. European secularism will also take a dramatic turn. France’ Macron is a perfect balance between the Far-Left and the Far-Right in Europe, and before Chancellor Merkel leaves world politics, she will never be intending to taint the Christian Democratic Union in Germany, and therefore empowering the Far-Right Alternative for Germany. Thus, the four years of Trump Presidency, even if have been turbulent for Europe and its institutional cum ideological values, have given a sense of learning to Europe to expose itself to a stronger and resilient worldview, which is coherent.

Additionally, Europeans are now realizing that they need to bridge and change their policies over three significant countries – India, Russia and China. With India, Europe is set for a trade deal any year soon, in clear opposition to the treachery of the values of European liberalism (or libertarianism) committed by the Chinese Communist Party led by Xi Jinping. Taiwan cannot be ignored anymore, as not only the US, but some EU member-states are leaning to endorse the leadership there in a moderate and transforming resistance against the Chinese wolf-warrior diplomacy. With Russia, the range of complexity depends on the state of Central Asia, where if Europe and NATO do not control Turkey (supported by Pakistan), then the US might step in assertively. However, it is in the best interest of Europe to sanction and take action against Reccip Tayyip Erdogan. Eastern Europe and Central Asia are the umbilical cords to the geopolitical transformation of defence partnerships between India and EU member-states. India already is in course for defence partnerships with Kazakhstan under the nose of China, as Eurasian Times reported. Thus, a better vision of multiculturalism – which started from Europe (not the US) in the 1990s can be presented to the international community, which will be welcomed heartily by the Indian Government.

IDEA-CENTRISM AND ITS DIMENSIONS

India shares the values of multiculturalism that Europe concedes to. Secularism and multiculturalism, despite being amazingly different, are essential to India and Europe in general. Indian secularism is not based on Semitic faiths such as Christianity, Islam and Judaism (although several attempts were made in India to impose the same, unfortunately by the Indian National Congress and the Nehruvian socialists for years). Instead, India’s vision of secularism, in full agreement with Rajeev Mantri and Harsh Gupta’s A New Idea of India – is composed of respect and devotion towards the civilizational heritage and diversity of India’s geography and cultures, which cannot be limited to the term called ‘Hindu Nationalism’ & the idea of coherence instead of artificial tolerance towards different Semitic and non-Semitic faiths, frankly. India has always welcomed people of different faiths, and will do, whenever it feels reasonable enough. Also, the dimension of sovereignty in India, is not ideological, but pragmatic, based on (1) a feudal governance model, which is often misinterpreted as ‘quasi-federalism’ under Indian Constitutional Law (since the Government of India Act of 1935 and other colonial adoptions from the British is still present in India) and (2) central to the concept of competence, and not power (which the Western and Indian media represents worse on unfounded claims). Kautilya, the architect of the Mauryan empire always embraced the idea of competence over a micro-managed servility towards power as a corrupt concept. It was Ashoka who destroyed this empire, because of his micro-management of governance and the eulogization of his identity as a King equivalent to that of a God, which never happens commonly in the history of Indic kings. Celebrating the cult and its diversity is not unfounded, neither unreasonable for the Indian people, because of years of mistreatment of the Indian state and the judiciary of the religious, social and cultural institutions of the Indic community. For example, the word Dharma is not equivalent to the word ‘religion’ and ‘Jati’ is not the English word ‘caste’, which unfortunately, has been a colonial misrepresentation of the Indic culture. Thus, the feudal system of constitutionalism from the British had its own reasonability in India, which now can be effectively transformed to a federal but responsible and accountable system of governance. India knows it very well that dominance in the information age is based on decentralization, not over-centralization of the state machinery. This inspiration is not directly American, but European – because if we see the laws (passed and in process to be proposed or passed in the Indian Parliament), many of them on information technology, AI and fintech are directly inspired from Europe. The Personal Data Protection Bill of 2019 is definitely inspired from the General Protection Data Regulation with some Indian modification of course, for example. Therefore, there is no doubt that India is eager to learn from Europe, its old friend. What Europe should do to express gratitude is to transform and revitalize its approach to strategize some limited identitarian European values, which are universal yet pragmatic, which starts with the European Parliament and the European Commission’s leaderships. Center-right, libertarian and Center-left politicians are better than Far-Right and Far-Left parties, and even when we see the current state of the COVID19 pandemic, we will find surveys proving that the Far-Right, for example, is suffering pretty well, especially in Germany and Austria. Center-right parties will have a better stronghold, but if their public health policies are not reasonable, then mere populism or assurance will not help the people. On the other hand, in India, the Culture-conservative and governance-libertarian governments in India (state-level) are doing significantly well in their efforts to curb the COVID-19 virus and its spread. Some socialist governments in India are not doing well, like West Bengal and Kerala, while the Central Government in India is well-prepared in contact tracing, decreasing the number of deaths and even handling the quarantine zones, which no one would have ever expected from a country like India, whose health infrastructure is a serious mess. India has been cooperative and helpful towards ASEAN countries, like what European Union tries to do with the Middle East and even some non-EU member-states as well as the Commission did since March 2020.

Thus, it is clear that the pair of India and Europe can certainly do better in terms of cooperation and transformation of the global economy, global health and environment system & the world of multilateralism, instead of the pair of India and the US. No one should ignore the potential of an Indo-US cooperation – but over relying on a skewed democracy like the US is often risky for the resilience of the Indian democracy. India can adopt and maintain the transformation of QUAD to its logical beginning as of now, as it presides the UN Security Council, the Shanghai Cooperation, G20 and other significant forums along with the Executive Bodies of the World Health Organization and the International Labour Organization. It is however also in the best interest of Europe, like India to have a meaningful and not over-reliant relationship with the US. Instead, Europe can look towards the global south and transform a resilient and meaningful network of partnerships swiftly, in the interest of peace and security, and so, a reasonable model of economic development. The US will be significant in the coming years to combat ideological obscuration and culture wars, which India and Europe would never to intrude much. Thus, one US election cannot decide in absolutism, as to how the state of the world will be – as the impact of the changes made by President Trump will help more, and damage less, the global order. This is therefore the best moment of a charted territory in the relationship between India and Europe to revitalize and protect the liberalism that the rules-based international order is fond of, which is not misused by anyone, whether it is the US, or China or Russia.

About the author: Abhivardhan is the Chief Executive Officer of Internationalism and the Chairperson & Managing Trustee of the Indian Society of Artificial Intelligence and Law.

In terms of strategy and information warfare, India needs to learn from Israel and Russia. In addition, in terms of harnessing the global supply chain and enabling the middle class in India to grow, it can learn from China, Bangladesh and Japan. However, to learn is different from the art, handiness and clarity to adopt or implement. For years, India has been a different ‘Vishwa Shishya’ (term coined by Harsh Gupta, one of the authors of ‘A New Idea of India’), where even the understanding of the term is not as literal as the term even depicts.

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Opinion

Ensuring a safe future for our children

Between 2005 and 2016, India lifted 270 million people out of poverty, according to a report by the Oxford Poverty and Human Development Initiative in collaboration with the United Nations Development Programme. This is an impressive feat—to put things in perspective, the entire population of the UK is around 67 million.

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According to some estimates nearly 40 percent of the country comprises of children- below 18 years- this is a substantial demographic. This week marks two significant days for children. November 14th is marked as Children’s Day across India to celebrate Nehru’s birthday. November 20th is marked as World Children’s Day internationally to commemorate the Geneva Declaration of the Rights of the Child. It is important to look at issues around child welfare that we as a country and a society must address collectively.

First and foremost perhaps, is the need for poverty alleviation. In some good news, between 2005 and 2016, India lifted 270 million people out of poverty according to a report by the Oxford Poverty and Human Development Initiative (OPHI) in collaboration with the United Nations Development Programme. This is an impressive feat- to put things in perspective, the entire population of the UK is around 67 million.

Having said that, it is no secret that poverty is a huge concern for the country. The covid situation may possibly make it worse. This means that sadly, a huge part of the population is still malnourished- according to some estimates about 40 million children. The state has taken some incredible steps- the mid-day meal scheme for instance is a step in the right direction. Not only does it ensure education for all, it does so whilst also ensuring at least one nutritional meal is afforded each day. Perhaps one of the largest such schemes in the world- more than 12 crore meals are served in our schools daily. This is an excellent initiative- yet a huge number of children are unable to avail this- on account of not being able to go to school.

Second, education is a crucial need for all children. Article 21 A makes education for children between 6 and 14 as compulsory. The Right to Education Act of 2009 furthers this objective by providing free and compulsory education for all. The 83rd Amendment to the Constitution made it a fundamental duty on every parent or guardian to ensure that their child or ward is provided education between the age of 6 and 14. These are all steps in the right direction. However, going forward, the applicability of these provisions must be strictly monitored. The quality of education should similarly be monitored to ensure parity across all schools and quality education that is world class and in line with the world standards. Private schools must accommodate students from all financial backgrounds.

Third, the protection and safety of the children is absolutely non negotiable. It is essential that the health- mental as well as physical health of each child is taken care of. This also includes protection from any harm. The Protection of Children from Sexual Offences (POCSO) Act, 2012 is one such legal instrument. It makes it mandatory to report sexual assaults on children. It also balances out the form of trial and courts have been sensitive to witness protection of children. Similarly family courts continue to adopt practices to limit damage to children. Those who come into conflict with laws are to be dealt with under Juvenile laws. We need a comprehensive study of these laws- to ensure complete protection of our children and ensure that each child is given the best possible opportunity to grow and if appropriate, reform.

Human trafficking continues to be a dreadful threat- leading to abduction and kidnapping of children that further leads to exploitation, including child labour. To truly stop this- not only do enforcement agencies need to be on top of it all- the role of the civil society to report such crimes and the role of the international community to help detect these is also crucial. A concentrated effort of all sections needs to be made to stop this immediately.

Last, it is important that any action we take as a nation- ranging from our education policy to environmental decisions should all be taken keeping the interests of our children and the future generations in mind. Education should be wholesome and practical. Environment degradation needs to be reversed with particular zeal. The pollution, for instance, effects children disproportionately. This needs to become a top priority to ensure healthy children who are able to have a happy childhood.

The great Rabindranath Tagore once remarked ‘Every child comes with the message that God is not yet discouraged of man.’ This children’s day, we must reflect on ensuring that each child has the happiest and safest childhood possible. They should not be bridled, cabined and cribbed by the social evils of child labour, poverty or lack of opportunity. It is them, after all, in whom we invest our futures.

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Opinion

Indian data centres draw $396 million investment in 2020 so far: Report

The country’s data centre industry has attracted close to $977 million in PE and strategic investments since 2008, of which nearly 40% or approximately $396 million were infused between January and September 2020 alone.

Anuj Puri

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Data centre industry revenue grew 3X in last 6 years – from USD 386 mn in 2014 to USD 1.01 bn in 2019

At least USD 7 bn leveraged capital investment committed or in stages of being deployed

India’s ~126 third-party data centres owned / operated by 53 players, but top 12 players operate ~95% of the total IT Power capacity

Mumbai’s under-sea cable landings currently make it the most popular location for data centres; in the future, Mumbai & Chennai to be the preferred locations.

Analysing under-construction projects and capital invested or committed, an ANAROCK-Mace report titled ‘Navigating the India Data Centre Lifecycle – Trends & Perspectives’ reveals that India will see at least 28 large hyperscale data centres constructed over the next three years. These will span over 16+ mn sq. ft. with at least 1,400+ MW of IT power capacity, equalling nearly 0.6 mn sq. ft. and 50 MW per facility on an average per hyperscale data centre.

The Indian data centre industry has attracted close toUSD 977 mn in PE and strategic investments since 2008, of which nearly 40% or approx. USD 396 mn were infused between Jan-Sept 2020 period alone.

While India has been seeing a massive digital thrust since 2014, the current government’s data localization policy has paved the way for hyperscale data centres to handle the increasing data consumption. Hyperscale facilities have clear advantages over smaller colocation centres as they can cater to the huge domestic data warehousing demand creating operating efficiencies and thus, pass on cost benefits to their customers. Smaller colocation facilities will need to reassess their competitive position and may need to repurpose to ensure survival.”.

Indians’ data consumption increased from 0.3 GB/user/month in 2014 to 10 GB/user/month in 2018; per capita consumption to hit 25GB/month by 2025 – total data traffic in the country likely to touch 21 EB (exabytes) per month.

The report finds that India currently has ~126 third-party data centres (colocation or hyperscale) spanning 7.5+ mn sft, and a cumulative IT Power Capacity of 590+ MW. While 53 players own /operate these 126 third-party data centres, the capacity is highly concentrated among the top 12 players who operate ~95% of the total IT Power capacity in the country.

The report also tracks investments into digital infrastructure for data storage in India from exchange and MCA filings of the top 12 data centre operators, and finds that the last decade saw this industry’s net fixed assets increase 25% p.a. – from USD 115 mn in 2010 to USD 1.1 bn in 2019.

Upcoming supply is expected to be concentrated amongst Mumbai and Chennai, followed by NCR and Hyderabad also getting a fair share of interest. Mumbai and Chennai together will witness ~60% of total future capacity, with NCR and Hyderabad contributing another 33%.

OTHER KEY REPORT HIGHLIGHTS

• Data centres are now the hottest alternative real estate asset – With the focus shifting to large hyperscale developments, the underlying property is becoming more valuable. Approx. USD 9.5 bn of capital is in various stages of being announced, committed or waiting to be committed into Indian data centres.

• Two exciting capital trends emerging – Data centres as alternative real estate assets providing yield income to large infrastructure investors, and the creation of large platforms between operators on one hand and investors / developers on the other.

• State governments providing fiscal and other benefits for setting up data parks – Benefits by Maharashtra, Gujarat, Telangana, Uttar Pradesh and Haryana state govts. range from subsidies on land, power, or other infrastructure and tax or duty waivers to granting of infrastructure / industry status and classification as essential service, and more.

• Need for proximity to customers – Tier 1 cities will see a fair share of data centre developments, especially in light of expected 5G rollout. Data consumption in Tier 2 cities will generate demand for smaller colocation facilities, given the growing data consumption of other urban cities.

While India has been seeing a massive digital thrust since 2014, the current government’s data localization policy has paved the way for hyperscale data centres to handle the increasing data consumption. Hyperscale facilities have clear advantages over smaller colocation centres as they can cater to the huge domestic data warehousing demand creating operating efficiencies and thus, pass on cost benefits to their customers.

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Opinion

No monetary punishment for cartelisation: Necessary or high-risk precedent?

The Competition Commission of India pointed out that the main objective of the penalty is to discipline the behaviour of the opposite parties so that the act performed by the accused is not repeated and the penalty imposed by the CCI will fulfill the same. In response to the following justification by the commission, the question arises: By ignoring the monetary punishment, is the CCI showing disrespect to the legislature?

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INTRODUCTION

Anti-competitive activities are those activities which hinder the free and fair competition of the market and bring such ideas into action that harm the consumers interest and increase their profit structure. Cartels belong to the same group of activities having anti-competitive nature. In the order dated July 10, 2020 the Competition Commission of India (CCI) passed an order against the offenders who were found guilty of cartel formation. In the matter CCI issued a cease and desist order instead of imposing any monetary penalty on the offenders. In this article an analysis is made in order to see whether this decision of the authority was the need of the hour or will the order serve as a dangerous precedent in the future.

CASE OVERVIEW: DIRECTOR GENERAL’S INVESTIGATION

On receiving the complaint from various railway offices, investigation was conducted by the Director General (DG) appointed by the CCI after which from the various evidences collected by the DG during investigation including e-mails and messages exchanged through SMSs and WhatsApp between the Opposite Parties, from the call detail records of their individuals and from the statements of their officials who were confronted with the evidences available against them it was found out that 10 brake block manufacturers were involved in the process of price fixation and quantities to be quoted in the tenders floated by the railways.

SUBMISSION OF THE PARTIES

In the submissions made by the Opposite Parties statements were made in order to show how the act was not causing any appreciable adverse effect on competition (AAEC). Firstly, As the Indian Railways is the primary buyer, it is the price maker and has significant countervailing buyer power thus the structure of the tender process eliminates all possibility of any price effect from the Opposite Parties’ side and in the absence of any price effect, no AAEC can be caused in the market. Secondly, quoting of established rates in the absence of direct evidence of cartel cannot be inferred as cartelization. Thirdly, the accused should receive the maximum benefit of penalty reduction as they have provided full, true and vital disclosures on its conduct relating to the supply of CBB to the Indian Railways. Lastly, although there was cartel formation but no AAEC was caused in the present matter.

ISSUES RAISED

  1. Whether the Opposite Parties had acted in a manner which is in contravention of the provisions of Section 3 (3) of the Act in the tenders floated by the divisions/ zones of the Indian Railways?
  2. 2- Who are the individuals/ persons/ officials of the Opposite Parties, who are liable in terms of Section 48 (1) or Section 48 (2) of the Act?

CCI’s FINAL ORDER

CCI in its final order held that the 10 brake block manufacturing companies have contravened the provisions of Section 3 (3) (a), 3 (3) (c) and 3 (3) (d) read with Section 3 (1) of the Competition Act,2002 (Act) during the period 2009 to 2017. The commission also held 11 persons of the 10 opposite parties liable under section 48 (1) of the Act and 26 persons liable under section 48 (2). CCI gave the following reasoning for the objections raised by the opposite parties: Some of the opposite parties have argued that same price was not quoted in the tender. In regard to this CCI observes that DG had relied on many evidences gathered from the email/ whatsapp conversations that same price was quoted in the tender. Hence, the claim of the opposite parties in misconceived. The opposite parties have made the claim that although there has been a cartel formation but there was no AAEC in the present matter. In response to this CCI stated that section 3 (1) of the Act clearly shows that not only the agreements which cause an AAEC but those agreements which are likely to cause an AAEC are forbidden. Furthermore, once an agreement of the types specified under Section 3(3) of the Act is established, the same is presumed to have an AAEC within India. Thus, the claim stands false. In view of the point that Indian Railways being a monopolistic player in the market when it comes to brake blocks the CCI stated that as a consumer Indian Railways is free to negotiate the price as it is for the benefit of the final consumers i.e. the passengers. Thus, Negotiations/ bargaining made by the Indian Railways does not detract from the factum of bid-rigging indulged in by the vendors in flagrant violation of the provisions of the Act. In view of the fact that CCI did not impose any monetary penalty on the accused the following reasons stated by the CCI – The opposite parties have cooperated in all the way possible and even admitted to the wrongdoings which made the investigation go smooth and without any hinderance. The companies in the cartel belong to the MSME sector and looking at the turnover in the CBB business and the in the situation of global crisis observes that most of the opposite parties have small turnover in this segment. The main objective of the punishment is to discipline the behavior of the accused and by the cease and desist penalty imposed by the CCI will fulfill the said objective.

ANALYSIS

In the order dated July 10, 2020 the CCI did not impose any monetary penalty on the accused and it turned out to be a point of discussion among the industry professionals and others. The main question that arises after this order is that whether this order of the CCI will serve as historic decision in this time of covid-19 or is going to turnout as a dangerous precedent in the future. As the adjudicating authority gave the reason of the global pandemic affecting the MSME sector another question that arises after this judgement is that whether all the judgements are going to be made considering the covid-19 situation and if such is a true fact then will that be fair for the other sectors of the nation. If the MSME sector had a severe blow in this global crisis another alternative could have been a reduction in the monetary punishment but simply ignoring the penalty which is a legislative provision and the fact that all the opposite parties cooperated with the authority and confessed all the wrongdoings conducted and considering that changing the punishment can serve as a dangerous precedent. The commission pointed out that the main objective of the penalty is to discipline the behavior of the opposite parties so that the act performed by the accused is not repeated and the penalty imposed by the CCI will fulfill the same. In response to the following justification by the commission the question arises is that by ignoring the monetary punishment, CCI is showing disrespect to the legislature or not by not imposing the penalty mentioned in the provisions of the Competition Act.

CONCLUSION

Precedents are an important factor which can affect any judgement in the future. Decision passed without considering any future happening can be disastrous for the legal fraternity. Fair judgements should be passed maintaining the base of equality following the fundamental rights enshrined in the Constitution of India. This article has made an analysis and suggested as to what other measures could have been taken by the CCI instead of passing an order of cease and desist.

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Opinion

Will legislation alone solve India’s rape problem?

Anushka

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How many more Nirbhayas before this savagery stops? Have our men dehumanized? Where have we as a society gone wrong?

India’s rape problem gained international attention in 2012 when a woman was violently gang-raped and murdered on a bus in Delhi. The brutal rape of Jyoti Singh, a 23-year old physiotherapy intern in a bus on her way back home from a movie with a male friend, shocked many across the world. The six perpetrators, brutally raped her, going as far as inserting an iron rod and left her to die. She eventually succumbed to her wounds in a hospital in Singapore. Little has changed since then, In Unnao on the 4th day of June, 2017, a minor girl, merely 17 years in age then, was kidnapped from her village of residence in Uttar Pradesh, and allegedly raped by a MLA and his brother and others. She was found 17 days later, on 21st June, 2017- in a village named Auraiya- 116.8 kms away from her village Mankhi.  As a desperate attempt to make herself heard in the dark, on 3rd April, 2018, the victim tried to immolate herself in front of the Chief Minister’s residence and alleged the crimes against her and her immediate and extended family. She also accused the police force of having turned a blind eye to the entire situation, thereby facilitating more offences. Finally, on the fateful day of 20th December, 2019 MLA Sengar was convicted of his charges and the court awarded him a sentence of incarceration for life, under Section 376(2) Indian Penal Code, 1860. Even though this sentence was welcomed, this delayed- and often denied- justice by the police and the law enforcement showed us the plight of women in this country. In the Kathua Rape Case, The eight-year-old girl was kidnapped on and raped inside a village temple in Kathua district. She was from the Bakharwal nomadic community. The investigation showed that she was kept sedated while kidnapped, raped then bludgeoned to death. The court sentenced the accused for murder and gang rape with life imprisonment. Dr Priyanka Reddy, a veterinary doctor from Shamshabad in Hyderabad was found dead with her body partially burnt. She was raped, smothered and then burnt by four men. Coming down to the very recent case in Hathras which shook us to the core and makes us put our head down in shame where on a 19 year-old woman died of injuries after she was allegedly gang raped by a group of men in a field in Hathras district, in the north Indian state of Uttar Pradesh, The girl had multiple fractures and was in intensive care unit for two weeks. Just before she died she was moved to Delhi but unfortunately succumbed to her injuries. Throughout this period, actions of the Uttar Pradesh police and administration have come under question. These incidents once again brought the discussion on the plight of women’s safety in India to the front pages of all major newspapers and news websites. That’s not to say that such news is absent on other days, except it is tucked away on the inside pages unless something truly heinous comes to light.

The biggest question: Why, despite the outcry over Jyoti Singh’s murder and government promises of change, does sexual violence remain endemic in the country?

Amid the public pressure that followed the Nirbhaya case, the government, then led by the Congress Party enacted significant reforms. It developed guidelines for the health care system to provide better treatment to survivors of sexual violence, and it created the Nirbhaya Fund in 2013, which provides state money to help pay for initiatives focused on women’s safety and on assisting female victims of violence.

That same year, new laws expanded the definition of sexual offences to include sexual harassment, voyeurism, and stalking, and mandated stricter punishments for offenders.

Can we not safely conclude that we do not need more laws to curb rape? A glance at the laws will tell you that we have enough and more. The basic problem is implementation. At the core of the breakdown of implementation is an overworked police force that neither has the time, nor the training to handle violence against women. What we’re actually in need of are effective, long-term solutions like prevention and protection mechanisms to reduce gender-based violence, improving investigations, prosecutions and support for victims’ families. Also in curbing and understanding the problem of rapes in India, it is important to recognise that there is not one isolated factor.  There are a confluence of issues and reasons, each reinforcing the other. Ranging from a lack of sexual education to societal norms that entrench gender inequality to inadequate legal deterrence, the problems run deep. Addressing the problem requires a multi-faceted approach. Perhaps the first step forward is education, fast-track trials that are supposed to be fast-track, more openness to talk about sex. We need to be aware that in India, although sex education is not banned de jure, it is definitely banned de facto, because it is kept out of school curriculum. This results in a situation where women do not realise the sexual rights they have. Hence, they do not report instances when their sexual rights are violated.

One critical issue related to the problem of rape in India is also that all too often lawmakers in India hold up the death penalty as a symbol of their resolve to tackle crime.

Awarding death penalty is subject to the ‘rarest of rare cases’ doctrine according to which a death sentence is to be pronounced only in those cases where the crime has been committed in an extremely cruel, barbaric or gruesome manner so as to be covered in the category of rarest of rare cases. The compulsory death penalty is against Constitutional rights of equality and right to life and personal liberty guaranteed under articles 14 and 21. Further, it would also go against Section 235(2) of the CrPC, which guarantees a convict a right to be heard while deciding the question of a sentence; and Section 354(3) of CrPC, under which, the court is bound to provide special reasons for imposing a death sentence. In cases where the death penalty is granted, the execution takes ages. 

In one of the most important cases that shook this country the death penalty was delayed for 7 years. On January 14, 2020, a five-judge bench of the Supreme Court rejected the curative petitions filed of Mukesh Singh and Vinay Sharma, the accused. Mukesh, however, then filed a mercy petition before the President which was also rejected. Then, he challenged the rejection of the mercy petition before the Supreme Court. Further, after a huge delay, on January 28, 2020, the convict Akshay filed his curative petition before the Supreme Court, which was rejected.

The trial court in Delhi, in lieu of the pendency of the mercy petitions of Vinay Sharma and Akshay Kumar, suspended the death warrants. Subsequently, the President rejected the mercy petitions of the two convicts consecutively.

The Delhi High Court, on February 5, affirmed the stay on the execution of the death sentence of the convicts, while directing them to exhaust all legal remedies within a week. On the same day, the Centre and Delhi government challenged the order of the Delhi High Court before the Supreme Court that all the convicts should be hanged together.

The Supreme Court allowed the Centre to approach the trial court, seeking the issuance of a fresh date for the execution of the death sentence of the convicts. Additionally, the appeal against the rejection of mercy petition was rejected by the Supreme Court. The Delhi High Court on Wednesday dismissed Mukesh’s plea that challenged a trial court order which rejected his claim that he was not in the national capital when the crime was committed.

The SC further rejected Pawan’s curative petition, in which he claimed that he was a juvenile at the time of the crime in 2012 and that the lower courts had ignored this fact. He had previously filed a review petition on he same matter but that had been rejected by the top court. In this case, incongruously, there had been postponement of the execution of these convicts constantly. Four days before the scheduled hanging, three of the convicts wrote a letter to the judges of the International Court of Justice, seeking a stay of their executions. In the letter, the death penalty has been termed as ‘barbaric and inhuane’. They had alleged that the trial was faulty and the conviction was based on insufficient evidence like many of the facts of the investigation that pertain to recording of dying declaration, recording of statements of witnesses under Section 161 of the CrPC, the medical examination, holding of the test identification parade, the manner and method of search and seizure and the procedure of arrest. However, it was important to note that the International Court of Justice hasno power to adjudicate individual disputes within the sovereign states.

Poignantly, there had been a huge delay in granting justice to the victim of the 2012 Gang Rape yet 20th March, 2020 ensured closure for the tragic event and provided justice to the family.

Nevertheless even if the death penalty is granted the question remains – Will provision for death penalty set a deterrence? If so then why haven’t murders stopped? Why are women still being gang raped? Minor girls being sexually assaulted?

Centuries of patriarchal mindset have conditioned men to believe in their superiority and to look down on women as inferior beings. The Entertainment Industry has often produced songs which loud and clear talk about objectification of women, the caste system already is a slur on our culture. What more do we need? Pornography is one of the leading industries, you can find toy shops with sexually objectified toys. I just ask one question, what impression does it leave on the Young minds of our country? There are video games which explicitly encourage violence, all of it needs to stop.

Nevertheless we also should strictly consider legalizing prostitution. Suppressed sexuality has greater chances of erupting into violent behavior. The concept of “consent” has to be made clear to the men and probably after seeing the ratio of marital rapes in our country we can conclude that consent is completely incomprehensible to them.

We need a system which makes sure that no accused whether rich or poor whether a middle class or an influential personality manages to manipulate the administration and get out of the clutches of law. A system that deals with rape cases expeditiously and spares no one who commits such a crime right from arrest to execution.

More than PUNISHMENT we need to focus on PREVENTION of the crime and that requires collective efforts from all the pillars of this country including the citizens.

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