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Drone rules to come up by 31 March: MoCA

Drone rules are already in final stages of discussion with the Law Ministry, says Amber Dubey, Joint Secretary, Civil Aviation Ministry.

Tarun Nangia

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Amber Dubey, Joint Secretary, Ministry of Civil Aviation, Govt of India today said that the vision is for us (India) to be the drone hub of the world. “Aatmanirbhar Bharat is no more a slogan. However, bulk of the drone components requires scale and right now the market in India is too small to give that scale. Volumes will only come through enabling DSR (Demand, Supply, Regulations),” he said.

 Mr Dubey said that drones are the future of armed conflicts and the impact has been witnessed by all in recent times. Lauding the start-up ecosystem in the drones’ sector, he said that the very people who today are delivering agri drones and mining drones will also give us military drones

Further, Dubey informed that the draft Drone Rules are already in the final stages of discussion with the law ministry. “Hopefully by 31 March we should come up with the drone rules,” he said.

On quality, Mr Dubey noted that the DGCA has appointed QCI (Quality Council of India) to look at the quality certification and approvals process. The QCI, in turn, has a run a collaborative process and come up with a guidance manual. “Quality is paramount and that is why we have outsourced it to parties that have more knowledge. This is the kind of PPP that we are looking at,”said Dubey, while addressing the FICCI Session on Drones & Counter-Drone Opportunities in Defence and Homeland Security at Aero India

Rakesh Asthana, Director General, Border Security Force informed that while there were 167 recorded sighting of drones in the Western Front in 2019, there were 77 sightings in the last year. “There have been instances of dropping off arms & ammunition as well as narcotics through drones, particularly in the Punjab and the Jammu sector,” he said.

“The drone technology is being effectively used for not only smuggling activities but also for surveillance purposes by anti-national elements and non-state actors that are also seeking to augment their counter drone capabilities having interception, direction finding, and jamming capabilities. If these are not addressed appropriately and effectively, it will pose a daunting challenge for us in times to come,” Asthana said.

The use of drones for anti-Naxal operations is also very important. As far as BSF is concerned, we are using the drone technology for surveillance purposes, countering rogue drones sent in by our not so friendly neighbouring nations, he added.

Asthana further informed that the govt has already authorised a considerable number of micro and small drones and in the times to come this number is expected to increase manifold. “Many anti-drone systems have also been approved by the MHA and we are in the process of finalising the equipment suited to our requirements,” he said.

BSF is equipping itself with futuristic technology, especially in drones and the system to counter rogue drones at the border. There are specific parameters that we are working on and in the near future we are going to acquire a sizeable number of drones to enhance our capabilities so far as border guarding is concerned, Asthana noted.

Brig ZIS Yazdani SM, VSM, Brig Army Design Bureau, Indian Army said the Army Design Bureau facilitates the industry, academia, DRDO’s, DPSU’s participation towards resolving the problems that the army is facing. 

“Our country has a land border of 15,000 kms and a coastline of 75,000 kms. The armed forces need to carry out surveillance and operations; need to target enemy camps and technology is needed to take it forward. Hence, the demand for drone surveillance in the country is huge,” he said. Brig Yazdani pointed out that there is a requirement for surveillance in high altitude area.

Further, on the contribution of start-ups in the Drones sector, Brig Yazdani said, “Start-ups in this field have beaten large industries, not on cost but on technology in meeting user requirements,” he said.

MA Ganapathy, Director General, Bureau of Civil Aviation Security (BCAS), Ministry of Civil Aviation, Govt. of India said that drones have proliferated multifarious uses and the regulatory regime in almost all countries is struggling to cope with the growth of the drone ecosystem.

Ganapathy added that the deadline for all metro and hypersensitive airports to have counter-drone solutions has been extended from 21 January as decided earlier owing to the pandemic. The BCAS is in the process of issuing new dates for the installation of counter drone solutions, especially for the metro airports.

Rajan Luthra, Chair – FICCI Committee on Drones said that India›s Drone & Counter-Drone market potential up to 2030 is cumulatively estimated to be around INR 300,000 crore (approx. US$ 40 billion) with Defence and Homeland Security accounting for ~50 per cent of it.

He added that India’s drone sector has a promising future. “The importance of the drone sector is getting realised on a daily basis in terms of how new opportunities are shaping up and many key developments are taking place at an increasingly rapid pace,” he said.

Luthra further said that in line with the Raksha Mantri’s address at the inaugural session of Aero India 2021, the ‘sangam’ (confluence) of rising demand for drones & counter drones; innovation due to a large number of start-ups; enabling conducive policies and maturing ecosystems, will make India the drone hub of the world.

Ankit Mehta, Co-Chair – FICCI Committee on Drones and Co-Founder, IdeaForge said that the announcement of SWAMITVA Yojana is supremely in favour of drone industry. “We need to look at local sources of UAV technology and use at our borders as well,” he added.

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Policy & Politics

Environmental criminal law: Is it the need of the hour in India?

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INTRODUCTION

Even a single thought about the Bhopal Gas Tragedy never fails to send a chill down the spine- this is enough to address the grave consequences of the disastrous activities of the profit-sucking corporations that the people and the environment are exposed to. It is indeed thought-provoking how the gravity of such crimes go unnoticed even if they take the lives of hundreds of people, while an act of murder is seen with great contempt. Are these crimes less than murder? Indeed not. Environmental crimes are a simultaneous murder of not one but many people, and of the environment. The only method to curb such crimes is through a strong legal framework which currently is not up to the mark be it the legal provisions or the judicial pronouncements. The article, therefore, seeks to address and analyse the issues that the liberal perception of this crime raises.

The primary focus has been on analysing the liability of corporations in environmental crimes. To that effect, this article has been divided into four major sections. The first section of the article discusses and describes the concept associated with Environmental Crime. The second section of the article presents a detailed legal analysis of the criminalisation of corporate environmental crimes. The third section of the article highlights the lacunae concerning the incapacity of three legislations, i.e., the Indian Penal Code, the Code of Criminal Procedure, and the Environment (Protection) Act to deal with environmental crimes. The fourth and the final major section of the article based on some of the case laws, analyses the paradigm shift in the judicial trend that the concept of Environmental Crimes in India has gone through.

ENVIRONMENTAL CRIMES

The term ‘Environmental Crimes’ does not have a universally accepted definition, and is in most instances defined based on the convenience to interpret. The genesis of such an idea can be owed to the deleterious acts/omissions that are responsible for the violation of the environmental law.1 Y. Situ and D. Emmons2 cumulatively put forth the definition as “an environmental crime is an unauthorised act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanction”. According to the United Nations Crime and Justice Research Institute, “environmental crimes encompass a broad list of illicit activities, including illegal trade in wildlife; smuggling of ozone-depleting substances; illicit trade of hazardous waste; illegal, unregulated, and unreported fishing; and illegal logging and trade in timber”.3 Legally speaking, for an act or omission to be categorised as an ‘Environmental Crime’ it should- a) cause direct/indirect damage to the environment, and b) be prohibited by the law.4 These interpretative definitions, though objective, do not suffice in toto. On analysing the proposed array of definitions available, a few shortcomings could be highlighted- firstly, the lack of a universally accepted definition creates uncertainties regarding a common ground for accepting an act as an environmental crime; secondly, the lack of a well-defined area of activities the definition would encompass; thirdly, the jurisdictional and geographical limitations- what is a crime in one nation may not be a crime in the other.

It is per se called a ‘crime’, for it endangers people’s health and causes irreparable damage to the environment. Such long-lasting and grievous harm is bound to have grave consequences not only on the present generation but also on the future generation, undermining the idea of Sustainable Development. It is the disastrous and far-reaching consequential nature of the act or omission that calls for criminal sanctions being associated with an environmental offence. There is no reason acceptable enough that would outweigh the costs over benefits of such heinous acts. As the telos is merely to serve either of the two- a) Corporations, or b) Individuals. These acts are unapologetically used as a means to serve the end of profit-making or financial gain. Corporations, under the veil of capital generation and lucrative business, blatantly ignore environmental and public concerns. Therefore, the present research seeks to deal with the Corporate Criminal Liability that arises out of the Corporate Environmental Crimes committed by industries and corporations.

THE CRIMINALISATION OF CORPORATE ENVIRONMENTAL CRIMES: AN ANALYSIS

There are three kinds of stances that are put forward concerning the corporate liability for environmental crimes.5 First, the traditional view argues that since a corporation does not have a mind of its own, so the criminal act would lack the requisite mens rea, therefore, the corporate bodies cannot be charged criminally. The supporters of this view majorly argue that a corporation though a separate legal personality has no physical existence, therefore, imposing criminal liability would render the punishment of imprisonment meaningless. Some European countries like Germany, Greece, Hungary, Mexico, Sweden, etc., support the traditional view. Second, are the ones who support imposing criminal liability on corporations for the commission of environmental crimes. In this scenario, the corporation and the persons responsible for running the corporation would be held liable personally. Countries like the USA, Australia, Denmark, France, Finland, Netherland, Belgium, United Kingdom, etc., favour this view. Moreover, the International Environment Law contemplates a mandatory obligation on all parties to the convention to incorporate within their domestic law- provisions imposing criminal sanctions on the erring corporations.6 Third, this view is mediatory, which suggests that criminal liability ought to be adopted as a last resort. It is only supposed to be chosen in the cases where the other remedies fail to deter the actions of the offender.

This article seeks to support the second stance- the one of making corporations criminally liable for environmental crimes. To refute the argument put forward by the traditional view- that seeks to not make corporations liable for their criminal activities associated with the environment, the following premises are vital. Corporations are non-physical entities but have a distinct legal persona. Moreover, corporations are run by individuals like the directors, who are said to be the ‘mind of a company’. Oftentimes, the Courts have treated such officers as the mind, body and soul of the corporate body.7 Though legally, it may appear to be a non-physical entity, however, in reality, it is an association of persons. A corporation cannot be run without individuals associated with it. Therefore, it is wrong to hold that a corporation lacks mind and that it cannot have the requisite mens rea to commit a crime. Furthermore, a widely accepted rule of corporate law is the lifting of the corporate veil used to make such offenders personally liable who seek to commit the offence under the guise of the corporation. This rule becomes cardinal while seeking to make the officials of a corporation liable for environmental crimes. The mediatory view of adopting criminal liability as a last resort is certainly not acceptable provided the egregious nature of these crimes and the incapacity of penalty to alone suffice for punishments in such grave cases.

The Bhopal Gas Tragedy of 19848 has come to be known as one of the ‘World’s Worst Industrial Disasters’. The Bhopal plant of Union Carbide Corporation negligently released Methyl Isocyanate and Hydrogen Cyanide gas into the atmosphere. This incident killed at least 3,800 people immediately. The toll of death has risen to an approximate number of 25,000 in the three subsequent decades. This disastrous incident not only took away the lives of many people but also gravely affected the survivors who were present inside the corporation and who resided in its vicinity. Some half a million survivors suffered respiratory problems, eye irritation or blindness, and other maladies resulting from exposure to the toxic gas. Such industrial disasters have an inherently detrimental impact on the people and the environment which continues to haunt in the years to come. In the early 21st century, 400 tons of industrial waste was said to be present on the site of the disaster. This industrial waste has contaminated the soil and the groundwater to an extent that the consumption has led to chronic health problems and birth defects among the inhabitants of the area. This incident has been a major contributor to all three kinds of pollution- air, soil and water.

So, the whole point around emphasising the need for the criminalisation of corporate environmental crimes, a sub-type of white-collar crimes, is because of its inherently vast nature and capacity to cause harm. Industries significantly contribute to polluting the environment in diverse ways- intentional littering, improper disposal of nuclear and hazardous waste, releasing toxic substances into air and water bodies. Most of these above-stated activities are well-known to the officials and are not mere cases of negligence. Such activities not only affect the environment but also affect countless people, rendering them victims of a plethora of respiratory illnesses and other problems. The argument of making the corporations criminally liable for environmental offences gains efficacy in light of the following reasons.9 Criminal sanctions mostly deter violations in ways that are efficient to the other methods of punishment. “Deterrence works best on people who have not had contact with criminal justice and for whom prosecution or even investigation will have severe personal consequences.”10 Corporate officials are known to be a “social group that is exquisitely sensitive to status deprivation and censure”.11 The accusation of a crime would be degrading to their corporate image since the publicity value means a great deal to their job. Criminal sanctions can have certain systematic effects as well, like disqualification of a corporate official may change his attitude towards the environment thereby, reducing the chances of prospective violations by him. Furthermore, on moral grounds, it could be argued that the affluent persons who used to escape liability by affording even heavy penalties would become more responsible towards the environment in the absence of an alternative. Last but not least, oftentimes, the gravity of environmental crimes is so high that such behaviour must only be addressed with the criminal law.

The Statutory Provisions Dealing with Environmental Crimes- An Analysis

The major lacuna that the Indian environmental law suffers from is the lack of the consideration that environmental crimes are serious and may take the shape of even an organised crime12. Such crimes are even lowly ranked in the law enforcement priority list. The Law Commission of India has recurrently recommended that the liberal punishments concerning environmental crimes must be amended to include stricter punishments so that the responsible corporations do not go scot-free.13 There is a wide array of provisions and legislations which have been enacted by the Indian government with respect to environmental protection. Some of the important ones are discussed hereunder:

THE INDIAN PENAL CODE, 1860

Chapter XIV of the Indian Penal Code, 1860 deals with “offences affecting the public safety, health, convenience, decency and morals”.

Section 268 provides for the offence of public nuisance- A person is held liable for the offence of public nuisance if he engages himself in any act/omission which causes- a) common injury, b) danger/annoyance to the public/people in general who live or occupy property in the vicinity, c) necessarily causing injury/obstruction/danger/annoyance to persons who may have occasion to use any public right. Further, Section 290 provides for the punishment of public nuisance with a maximum penalty of two hundred rupees. It is indeed dispiriting to know that the perpetrators of an egregious environmental offence like public nuisance can go scot-free by paying a mere penalty of a maximum of two hundred rupees or even less than that. This penalty can never succeed in deterring the violations towards the environment by the big corporations.

Fouling of the water of a public spring or reservoir is contemplated to be an environmental crime under section 277 of the IPC. Under this section, to voluntarily corrupt or foul the water of any public spring or reservoir is an offence and the person held liable would be punished with imprisonment for a maximum term of three months, or with a maximum fine of five hundred rupees, or with both. Moreover, the making of atmosphere noxious to health is punishable under the IPC under section 278. Under this section, to voluntarily vitiate the atmosphere in any place making it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way is a punishable offence. The offender is bound to be punished with a maximum fine of five hundred rupees.

The above-stated two provisions are directly related to environmental protection as they seek to prevent water and air pollution through a penal strategy. However, firstly, the problem with all these environmental offences is that the nature of punishment is not effective to cause a deterrent effect among the corporations. They are too lenient for offences as big as the ones where, for example, the industries pollute the only source of drinking water and the consumption of which causes mass public suffering.14 Secondly, the effective application of these provisions in achieving the objective of environmental protection is doubtful because the technicalities of Indian criminal law require a complete satisfaction of the ingredients of the offence as stipulated in the penal provisions making the process of delivery of the criminal justice system tedious.

THE CODE OF CRIMINAL PROCEDURE, 1973

Chapter X of the Code of Criminal Procedure, 1973 deals with the “maintenance of public order and tranquillity”. Part B and Part C enumerates provisions relating to Public Nuisance and urgent cases of nuisance and apprehended danger respectively- both relevant to be considered for environmental protection.

Section 133 (Part B) provides for the conditional order for the removal of the nuisance. The District Magistrate/Sub-Divisional Magistrate/Executive Magistrate is empowered to pass a conditional order for the removal of the nuisance on a report by the police officer or based on any other information after considering the evidence (if any). This has been proved to be an effective remedy to resort to abating public nuisance associated with environmental harm.

Section 144 (Part C) provides for urgent powers of the District Magistrate/Sub-Divisional Magistrate/Executive Magistrate to issue an order in urgent cases of nuisance or apprehended danger in situations where a speedy remedy is desirable. This section particularly confers wide powers on the Magistrate to deal with urgent cases of nuisance or apprehended danger.

ENVIRONMENT PROTECTION ACT, 1986

The Environment (Protection) Act, 1986 was enacted in an aftermath of the Bhopal Gas Tragedy and in accordance with the decisions taken at the United Nations Conference on the Human Environment, held in Stockholm in June 1972.15 The Act seeks to provide for protection and improvement of the environment and the prevention of hazards to human beings, other living creatures, plants and property.

Chapter III of the Act provides for the prevention, control and abatement of environmental pollution. The following provisions are relevant to the corporations for environmental protection. Under Section 7 of the Act, the persons carrying on industry operations, etc., are not supposed to emit or permit to be discharged/emitted any environmental pollutants above the prescribed standards. Further, Section 8 provides that a person handling hazardous substances must comply with the procedural safeguards.

The penal provision of the enactment has been incorporated under Section 15 of the Act. This section, in case of contravention of the provisions and rules, orders and directions of the Act, provides for imprisonment of a maximum period of five years and a maximum fine of one lakh rupees. If the contravention is continuing then an additional fine of a maximum of five thousand rupees can be imposed every day. Furthermore, if the contravention exceeds beyond a period of one year after the date of conviction, the punishment can be extended to a maximum period of seven years.

The Act under section 16 provides a specific provision for environmental offences committed by companies. This section very appropriately makes all such persons liable for the offence who were directly in charge of and were responsible to the company for the conduct of the business of the company, as well as the company. Such persons would be held liable and be punished accordingly. However, a person can escape from liability under section 16 if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

THE JUDICIAL TREND

1984- Union Carbide Corporation v. Union of India16 (The Bhopal Gas Tragedy Case): The very fact that in the Bhopal Gas Tragedy (the world’s worst industrial disaster) the Union Carbide Corporation was not held criminally liable suggests that the development of criminal jurisprudence of environment did not start off on the right foot. The UCC was absolutely exempted from the criminal liability and the Court held that the pending criminal prosecution was a separate and distinct proceeding unconnected with the suit from an interlocutory order. Since the Court did not have the power to withdraw the criminal proceedings, it urged to quash the order. “The order of February 15th, 1989 provided: All such criminal proceedings including contempt proceedings stand quashed and accused deemed to be acquitted.”17

1987- M.C. Mehta v. Union of India18 (The Oleum Gas Leak Case): This case is based on yet another instance of the leakage of gas that happened soon after the disastrous Bhopal Gas Tragedy. In one of the units of the Shriram Food and Fertiliser Industries, a major leakage of oleum gas was reported which caused considerable damage to the workers and the people residing in the vicinity of the factory. It was alleged that an advocate also died due to the gas leak. The Court very appropriately sought to hold the chairman and Managing Director and other officers along with the operator and head of the concerned plant personally responsible for this mishap. Such officers have often been treated as the mind, soul, and body of the corporation.19

However, the outcome of this case was particularly disappointing as the Court later decided to change the First Order. Subsequently, the Court ordered that the officials could be exempted from being held responsible if they prove that the escape of the gas was due to an Act of God or vis major or sabotage. On a positive note, the case particularly holds landmark importance in the development of criminal law in environmental jurisprudence and has also led to the incorporation of the tortuous doctrine of absolute liability in India.

1992- Dwarka Cement Works v. the State of Gujarat20: The absence of a strict legal framework provides the chance to the corporations to frame excuses to get rid of their responsibility in environmental offences. This is one such case where the corporation framed a lame excuse to escape liability.

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The Chairman, Director and the General Manager who were involved in the environmental crime contended that there was nothing in the complaint that concerned them with regards to the management of the industry, and, therefore, they could not be personally held liable for the harm caused. However, the Court did not allow their plea on account of their tricks to escape liability.

2003- M.C. Mehta v. Union of India21: This case marked the success of the environmental illuminary Mr M.C. Mehta in the unveiling of criminal sanctions on the respondent of the case. The Supreme Court ordered the respondent to close the hot mix plant unit. However, he alleged that the High Court had approved of his activities. Moreover, when the contempt notice was served on the respondent, he again chose to allege but this time it was the Apex Court, with contumacious statements. Therefore, the SC given the highly contemptuous statements decided ‘to give a strong signal to the respondent so that like-minded people do not repeat the same and such recurrence is thwarted in future’ who was responsible for causing the risk of deleterious effects of air pollution on the health of the society.22 Concerning the criminal sanction- he was punished with one week of simple imprisonment and a fine of one lakh rupees. One week of simple imprisonment seems too liberal for a criminal sanction, however, this case attempted to apply criminal sanction in environmental jurisprudence in a full-fledged manner.

Suggestions and Conclusion

The need of the hour is a shift in the environmental jurisprudence from tortious liability to criminal sanctions for crimes that affect the health and lives of people en masse and irreparably degrade the environment. The Courts must not allow the criminals to go scot-free.

It is high time for the environmental provisions to be amended to- a) include organised environmental crimes as separate and specific offences and b) raise the strictness of the currently liberal penalties.

The wide array of legislation on the environment should be consolidated to form a separate and specific piece of legislation that would precisely provide for environmental offences and their stipulated penalties.

The lame excuses of the corporations continue to take advantage of the weak legal framework and degrade the environment. Therefore, it is highly recommended to allow the full operation of absolute liability in environmental offences.

Considering the heinous, grave and egregious nature of environmental crimes, significant efforts should be made to formulate a definition and classify the acts that would result in environmental crime. The lack of a universally accepted definition, the liberal penalties, the weak legal framework and the absence of judicial activism has exacerbated the consequences of such a crime altogether. All of these lacunae should be given wide importance and be looked at with immense concern. Otherwise, profit-sucking corporations would continue to work in neglect to deteriorate and damage the environment. After all, it is not some temporary damage to the environment but serious, irreversible deterioration that affects not only the present generation but also the generations to come.

(Endnotes)

1 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ 98 (2011-2013).

2 Y. Situ, D. Emmons, Environmental Crime: The Criminal Justice System’s Role in Protecting the Environment 3 Sage Publications, Thousand Oaks (2000).

3 UNITED NATIONS INTERREGIONAL CRIME AND JUSTICE RESEARCH INSTITUTE, http://www.unicri.it/topics/environmental (last visited June 29, 8:23 PM).

4 Stuart Bell, Donald McGillivray, Environmental Law 254 Oxford University Press (2008).

5 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ 98 (2011-2013).

6 The Resolutions of the XVth International Congress on Penal Law, (Rio) Res. 12, 14 and 20, 1994.

7 Moore v. Brester, (1944) 2 All ER 515; Tesco Supermarket Ltd. v. Nattrass, 1972 AC 153.

8 BRITANNICA, https://www.britannica.com/event/Bhopal-disaster (last visited June 29, 8:23 PM).

9 Joseph F. Dimento, Criminal Enforcement of Environmental Law, 525 The Annals of the American Academy of Political and Social Science 134-146 (2013).

10 Greider, Fines Aren’t Enough: Send Corporate Polluters to Jail, Rolling Stone 46 (1984).

11 Susan Hedman, Expressive Functions of Criminal Sanctions in Environmental Law, 59 Geo. Wash. L. Rev. 889-99 (1991).

12 Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652; Indian Council For Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

13 The Report of the Law Commission of India (Forty-first) 1969; The Report of the Law Commission of India (Forty-seventh) 1972.

14 Vellore Welfare Citizen Forum v. Union of India, AIR 1996 SC 2715.

15 Environment (Protection) Act, 1986, No. 29, Acts of Parliament, (1986) India.

16 Union Carbide Corporation v. Union of India, AIR 1992 SC 248, 281.

17 Id.

18 M.C. Mehta v. Union of India, AIR 1987 SC 965.

19 Moore v. Brester, (1944) 2 All ER 515; Tesco Supermarket Ltd. v. Nattrass, 1972 AC 153.

20 Dwarka Cement Works v. State of Gujarat, (1992) 1 Guj L Her 9.

21 M.C. Mehta v. Union of India, (2003) 5 SCC 376.

22 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ (2011-2013) 98.

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Policy & Politics

How cyber crime has become a serious concern for society

Cyber world is considered a massive community consisting of millions and billions of users from all around the globe. Particularly, in India, there has been a rapid growth in the number of Internet users in the recent years. According to the IAMAI-Kantar ICUBE 2020 report, ‘The number of India internet users is expected to increase by 45% in the next five years to 900 million in 2025 from around 622 million in 2020.’

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The technological advancements we all have undergone through the arena of revolution have totally made our lives way easier than ever thought. Its emergence has provided us myriad of opportunities but at the same time it’s inevitable for cyber offenders to grab such opportunities to make themselves rich at the cost of others privacy. Cyber laws are itself becomes prime importance especially in today’s technology driven era in which person’s privacy and safety becomes the first priority as the internet user gradually increasing all over the World. This article certainly aim to point out what all revolves around such mishaps and malicious activities. Author with the help of this write-up made an endeavor to fathom the concept of cybercrime in depth so that everyone knows what actually threat them and accordingly protect themselves against the same to stay safe during online transactions and business.

Let’s throw some light towards the meaning of cyber crime and understand exactly what it constitutes. Cyber Crime also known as computer crime can be defined as a systematic criminal act involves a network and a computer as a means to commit an illegal activity. Here illegal activity has a wide arm and includes series of issues apart from stealing someone’s data such as theft to using system or IP address as a tool for committing a crime.

TYPES OF CYBER CRIME

Cybercrime is not a new term for anyone living in the 21st century, but many have not an idea about the forms in which this hazardous act can occur. Speaking in a broad sense cyber crime can be classified into three major groups. These categories are Individual, Property and Government.

Cyber Crime against Individuals: These are offences that are committed by the cyber offenders against a person. In this classification Cyber Crime may take the form of Email spoofing, Spamming, Cyber defamation, Cyber trafficking, Cyber stalking, Phishing, Financial fraud, Internet Relay Chat (IRC) Crime and so forth.

Cyber Crime against Property: Just like in the real world the crimes such as theft, robbery is committed against the property of a person, in the same parlance in techno savvy world it is committed against the data of an individual. These crimes are known as Cyber Crime against the property and includes Intellectual (Copyright, patented, trademark etc) Property Crimes, Online threatening, etc.

Cyber Crime against Government: In this category crimes are commonly denoted as cyber terrorism because there always a terror of attack which can get hold of all essential official documents of national importance. There is huge number of cases where a terrorist hacks an important government databases.

The perpetrators of all the above discussed forms of Cyber Crime are increasing at an alarming rate and thereby causing a significant threat at the same time loss to the individual and organizations.

CYBER CRIME IN INDIA

The Cyber World is considered as a massive community consisting of millions and billions of users from all around the globe. Particularly, in India there has been a rapid growth in the number of internet users in the recent years. According to the IAMAI-Kantar ICUBE 2020 report, “the number of India internet users is expected to increase by 45% in the next five years to 900 million in 2025 from around 622 million in 2020.” People access it for variety of purposes starting from online dealing to the online transaction and so on. The advancement in the age of Technology no doubt opened the easy to approachable world full of information. Besides this, it also gives birth to the cyber crime. In the present scenario, India is one of the favorite hotspots for the Cybercriminals. “More than 27 million Indian adults experienced identify theft in the past 12 months and 52% of Indian adults admitted they don’t know how to protect themselves from cybercrime”, according to the 2021 Norton Cyber Safety Insights Report by NortonLifeLock. Thus, it is quite clear that due to the huge reliance on internet and lack of awareness there is a much folded increase in Cyber Criminal Activity. So, here Cybersecurity in order to counter these issues has becomes a major concern for a society in large.

LAWS RELATED TO CYBER CRIME

Cyber Law emerges as a tool to prevent the crime committed during course of activities and transactions that occur on the internet or on other communications platforms. Cyber Law plays a pivotal role in this new evolving era of technical society. In India, to curtail the spread of Cyber Crime and to safeguard the confidential data of people the legislature has enacted number of statues and regulations. The Information Technology Act (IT Act), 2000 and the Indian Penal Code (IPC), 1860 serve as protection against a menace of Cyber Crime. Apart from this, there are also many cyber cells were established that aid the whole process of penalizing the offenders. The Information Technology Act, 2000 is based on the United Nations Model Law on Electronic Commerce 1996 and is considered the most important law that deals with digital crimes in India. Some highlighting points of IT Act, 2000 are:

• The most important feature of this Act is addressing the issue of security. The Act introduced the construct of digital signatures which will help in verifying the identity of an individual on internet.

• Now e-mail is considered as a valid and legal form of communication.

• With the introduction of the Act, the Digital Signatures and etc. are given legal validity.

• Act has given birth to new business to new business to companies to issue digital certificates by becoming the Certifying Authorities.

• The Act allows the communication between the companies or the company on the one side and the government on the other side through internet. The Act also gives power to government to issues notices on platform of internet through e-governance.

• The Act provides the compensation in the form of many to company if any harm or loss suffered by the company due to any criminal activity.

Later, to keep pace with the changing time the Parliament in 2008 amended the IT Act, 2000. The new IT (Amendment) Act, 2008 which was made effective from 27 October, 2009 has brought several changes in the IT Act, 2000 on certain counts. The key features of the IT (Amendment) Act, 2008 are as follows:

• With the IT (Amendment) Act, 2008 India has adopted the electronic signatures as a legally valid mode of executing signatures. Electronic signature has a wider ambit and also includes digital signatures as one of the mode.

• The amended Act provides the distinction between the terms ‘contravention’ and ‘offence’ by introducing the new element of mens rea for an offence.

• Through the amendment in the IT Act in 2008 certain definitions are added. The two important definitions that are inserted through the IT Act, 2008 are: ‘Communication device’ under section 2(ha) and ‘intermediary’ under the section 2(w). The addition of these definitions further clarifies the term and removes any ambiguity.

• The power of the Adjudicating officer under the amended Act of 2008 limits to decide claims for injury or damage where it exceeds 5 crores. Beyond this amount the jurisdiction now vests with competent court.

• Under the Section 46(5) a new change is made whereby the officers who are adjudicating have conferred with the powers of execution of orders passed by them, including order of attachment, sale of property, arrest and detention of accused.

• The IT (Amendment) Act, 2008 changed the composition of the Cyber Appellate Tribunal (CAT). Now it consists of Chairperson and such other members as central government directs.

• By the amended Act many new Cyber Crimes such as sending of false or offensive messages, receiving stolen computer resource, identity theft, cheating by personation, violation of privacy and so on are included.

Surprisingly, none of the legislations (IT Act & IPC) define the term Cyber Crime. Moreover, there are number of parallel provisions of IT Act and IPC that overlap with each other. There exist several dots in the operational system of investigation of cases of Cybercrime.

THE WAY FORWARD

At the initial phase, Cyber Crime cannot be easily detectable but after causing significant consequences it come into notice. Cyber Crime of all types drastically affects the lives of people by breaching their privacy and causing a huge amount of loss. Cyber Crime is not something which cannot be prevented. Thus, to tackle this malicious threat here is some of the suggestive measures. Till today, the Indian Policing System for the purposes of investigation is stuck to the old methodology. Thus, it is the high time for reforms in the Police system and they should gather new modern ways of collecting information against the suspects.

• One of the major lacuna and also highly debatable issue is the concept of territorial jurisdiction which needs to be tackled.

• There needs to be a proper implementation of the Cyber Crime related laws and for this purpose a well established mechanism should be adopted. Also there is a requirement of a Standard Operating Procedure (SOP) to reduce the ambit of ambiguity.

• To effectively counter this there is a demand for judges, police personals who are well equipped with IT and there exist an imperative need to impart them legal and technical training.

• In India to efficiently investigate cybercrimes we need officers well equipped with technicalities of forensic science and cyber law.

• By educating the common man and informing them about their rights and obligations in Cyberspace is also the one way which facilitates the proper enforcement of cyber laws in our country.

Above all, while working with advanced technology one should follow security measures and use their common sense and logic. As there is a very famous saying, “Prevention is better than cure.”

CONCLUSION

The proliferation of cyberspace is at the peak during this unpredictable time of COVID 19. This dramatic rise also makes an uneven increase in the rates of Cyber Crime, thereby creating the situation worse than ever. There are many reports which states that there is an increased in cyber frauds during the pandemic. Apart from this, for the very first time our nation, had a “the number of India internet users is expected to increase by 45% in the next five

years to 900 million in 2025 from around 622 million in 2020.” in September 2018. It was held with the aim of creating a common platform for the investigators, forensic teams and other officials to discuss the ways to curb the cyber related offences. Like this, law enforcement agencies should take more encouraging steps. The Cyber Crime related Acts should be revised and modified according to changing needs for our nation. As Cyber Crime is not only becomes the great threat to the mankind but also violates the basic human rights of an individual such as Right to life, Right to privacy, etc. Protection against the same is essential for every aspects of our nation, be it, social, cultural or economic. So, there is an exigency of the hour that this issue must be addressed to maintain the harmony and peace in the society. In sum, Antonie de Saint-Exupery rightly said that “The time for action is now. It’s never too late to do something.” But at the same instance it should kept in mind that “Action should be taken before it’s too late.

REFERENCES

https://www.mondaq.com/india/it-and-internet/891738/cyber-crimes-under-the-ipc-and-it-act–an-uneasy-co-exitence

https://m.economictimes.com/tech/technology/india-to-have-900-million-active-internet-users-by-2025-says-report/articleshow/83200683.cms

https://www.livemint.com/technology/tech-news/over-59-of-indian-adults-fell-victim-to-cyber-crime-over-past-12-months-report-11618827697551.html

https://www.vedantu.com/english/cyber-crime-essay

https://www.toppr.com/guides/essays/cyber-crime-essay/

https://www.tutorialspoint.com/information_security_cyber_law/introduction.htm

http://www.lawyersclubindia.com/articles/classification-of-CyberCrimes–1484.asp

https://www.ijarcsse.com/docs/papers/Volume_5/8_August2015/V518-0156.pdf

https://indianexpress.com/article/cities/delhi/cyber-crime-rose-during-lockdown-7196262/

The cyber crime-related Acts should be revised and modified according to changing needs for our nation. Cyber crime has not only become a big threat to the mankind, but also violates the basic human rights of an individual such as Right to Life, Right to Privacy, etc. Protection against the same is essential for every aspect of our nation, be it social, cultural or economic. So, there is an exigency of the hour that this issue must be addressed to maintain the harmony and peace in the society.

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Making it happen: Arpan’s journey to respond to child sexual abuse

Anil Swarup

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This was 2017. As Secretary, School Education, Government of India, I was sitting on the last bench of a class-room, along with students of class 5, in a school in Mumbai. I was extremely impressed and least embarrassed at what was being taught primarily because of the manner in which a sensitive subject of child sexual abuse was being discussed so effortlessly with the children. With me was Pooja Taparia, the founder-CEO of Arpan, an NGO that was originally set up in 2003 to improve the lives of the underprivileged.

The journey to deal with Child Sexual Abuse (CSA) started in June 2006 after Pooja Taparia was influenced by a play ‘30 Days in September’ on this subject. It gave her a new vision and direction for Arpan. When she embarked on this journey, she saw a world that was seemingly silent and quiet to the sexual abuse of children. There was a tremendous social and cultural taboo on conversation around sexuality and awareness about CSA was non-existent. Sexual abuse of children was often hidden and under-reported and there was a limited acceptance of its prevalence and negative consequences. A broad variety of societal, cultural, individual and family-related normative frameworks restricted initiating the required conversations. Amidst this silence, the idea was to ignite the movement to prevent CSA as it was felt strongly that CSA needed to be prevented because of its high prevalence and negative impact. This was only possible if the tribe grew and each one played her part in child protection and took the pledge to create ‘A World Free of Child Sexual Abuse’.

To initiate the work on CSA, the need was to demystify it, create awareness that the phenomenon exists and it exists in our families and homes. The second step was to develop a scientifically researched prevention model that can address a multifaceted problem like CSA in the Indian context. Arpan developed the Personal Safety Education (PSE) programme which is a school-based comprehensive and holistic intervention model to respond to CSA by helping children identify and seek help in an unsafe situation so that they can participate in their own safety and strengthening their safety net. Since then, Arpan has implemented the PSE programme with 133,000 children and 104,000 parents and teachers, non-teaching staff across 218 schools, 6 institutions and 23 communities in 3 districts of Maharashtra. From its inception, Arpan believed that prevention investment must include greater provision for scientifically rigorous, large-scale outcome evaluation studies. External evaluation of the PSE programme by International Market Research Bureau (2014) revealed that out of the 8% of children reported to have faced an unsafe situation, 90% were able to seek immediate help. A Case Study (2017) also revealed that all who faced sexual abuse experience were able to stop the abuse and seek help. Based on an evaluation of the ideal gap period for implementation of PSE (2018), Knowledge retention ranged from 92% to 69%.

The third step has been to put in concentrated effort to mainstream PSE starting in early childhood and to sustain it during subsequent years. Towards this, public-private partnership has been pivotal as without the strategic deployment of government machinery, it would not have been possible to successfully achieve a safe childhood for all children. Arpan has trained 189,000 individuals and professionals through public-private partnership as well as partnership with large school chains and NGOs. Of these 139,000 professionals (govt. and non-govt. teachers, social workers and mental health professionals) were trained to replicate prevention and intervention models of Child Sexual Abuse. These professionals have reached out to over 1.13 million children and adults all over the country. This model of replication has been able to deliver impact – ~80% of children taught by the training participants remember 75% of the key concepts.

Arpan worked closely with various Government Ministries and Departments both at the central and state levels to integrate PSE within their curriculum and training. It has been part of a Life Skills think-tank initiated by the Ministry of Education (MoE) and working closely with an extremely committed set of officers like Saroj Yadav at National Council of Educational Research and Training (NCERT) and at Central Board of Secondary Education (CBSE) to ensure that the curriculum on Health and Wellness of school-going adolescents under the aegis of the school health programme of Ayushman Bharat incorporate messages of Personal Safety. This curriculum will take PSE to twenty-five crore children and fifteen lakh schools across India. Arpan has been able to integrate Personal Safety in Maharashtra SCERT school safety and security module as well which will also be transacted to all school-going children in Maharashtra.

Initiatives have been taken to integrate PSE in a number of states like Bihar, Delhi (where an energetic young officer, Ira Singhal along with Neelam Kumari and Advisor in the Education Department of the State, Shailendra Sharma provided all support and guidance) and Maharashtra (where the Education Commissioner, Vishal Solanki took the lead). Training of Master Teacher trainers and Teachers across these states has already started. On implementation, the programme will reach 30 million children through 700,000 teachers. As a part of the Nationwide Safe Neighbourhood campaign, initiated by the Ministry of Women & Child Development Department (WCD), Arpan has conducted trainings with regional officers from Childline who are in turn conducting trainings with all teachers across the country under the Nishtha programme.

Arpan also partners with the Ministry of Health & Family Welfare (where Dr. Zoya Ali Rizvi has been proactive and supportive) for trainings of Adolescent Health Counselors and Medical Officers across the country.

Work also commenced with Chandrapur District Administration, Akola District Administration, Kolhapur Zilla Parishad (under able guidance of a committed IAS officer, Aman Mittal, CEO), Kolhapur Municipal Corporation, Thane Municipal Corporation and slowly moving towards creating these as Sexual Abuse Free Districts of Maharashtra

Realizing the potential of an interactive e-Learning platform as an easy and efficient learning tool to transcend geographical boundaries and scale PSE programme, a responsive website www.arpanelearn.com was launched in 2019. 78,000 children and 2800 adults have taken the digital courses of PSE. With the support and guidance of Dr. Amarendra Behera and Dr. Abhay Kumar at the Central Institute of Education Technology (CIET), Arpan’s digital courses are also being showcased on Doordarshan’s Swayamprabha channels. This digital journey that Arpan initiated is proving to be useful during COVID time.

Arpan plans to build collaboration with 10-15 states and integrate Personal Safety in the curriculum over the next 5 years. Simultaneously, digital technologies will be leveraged to scale reach and teach personal safety to every child in the country. This will have a cascading effect to reach millions of children and adults and help the country take a step towards world free of Child Sexual Abuse.

Arpan, under inspired leadership of Pooja Taparia, with an amazing team comprising committed persons like Aditi Ray, made it happen in a domain that was considered to be kept at a safe distance and not even discussed on account of perceived embarrassment. This wonderful team brought this out in public discourse and sought to remedy the malaise. They have succeeded on account of their commitment, dedication, meticulous planning and immaculate execution.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

Horrendous atrocities being committed on women and girls in Afghanistan

When America suddenly decided to withdraw its troops, the ground slipped under the feet of the women of Afghanistan. Who will stop the Taliban now?

Vijay Darda

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A short video clip uploaded by an international news channel has shaken me to the core. In that video, a fourteen-fifteen-year-old girl is seen screaming and shrieking. Her parents are begging for mercy but Taliban terrorists are forcibly taking away the girl from the family.

The girl will now be turned over to some Taliban terrorist to quench his lust. If that monster is killed someday in the war, then the child will be given to another monster! This is the fate of that girl!

And that girl is not the only unlucky one. This is the fate of lakhs of girls like her in Afghanistan. In the areas which the Taliban has occupied so far, they have started barbarity in the name of Sharia. It has decreed that a list of unmarried girls above the age of fifteen years and widows should be prepared. It is evident that all these girls and women will be used for quenching the lust of terrorists.

Although the leadership of the Taliban based in Qatar is ruling out such incidents, the Taliban terrorists who are bloodying Afghan soil are kidnapping girls every day. In those areas, even the media is not working now so that the whole truth could come out. But the pictures and news that are coming out after filtering fill the mind with pain.

When the Taliban captured the whole of Afghanistan in 1996, it was women who had to bear the brunt of their brutality. The education of the girls had stopped. You must recall how an attempt was made on Malala because she was secretly spreading her voice to the world in favour of the education of the children. So will the girls be imprisoned in homes again? When asked, Suhail Shaheen, Taliban spokesman in Qatar, said that women will have freedom of education and work but under Sharia law they will also have to wear hijab. Let us remind you that during the Taliban regime from 1996 to 2001, it became notorious for their misogyny and violence against women. The women who did not wear the hijab or even those, whose fingers were visible, were also lashed publicly. A woman could not step out of the house without a male member of her household accompanying her. The actions of the Taliban are showing that the old dark days and dreadful nights are about to return.

When American troops landed on Afghanistan’s soil in 2001 and the Taliban started shrinking, there was a ray of light in the lies of the women there. The girls started going to school. Cruelty to women decreased. Women started going out for work. A lot has changed in Afghanistan in the last 20 years. But when America suddenly decided to withdraw its troops from Afghanistan, the ground slipped under the feet of the women of Afghanistan. Who will stop the Taliban now?

However, the rural women there have an inborn conditioning to discrimination because no woman’s name is even taken outside the house. Even on the doctor’s prescription slip it is written ‘daughter of so and so’ or ‘wife of so and so’. Her name is neither on her birth certificate nor on her death certificate. This irony is a part of their life. But the condition in urban areas was getting better. The arrival of the Taliban has raised a fog of fear and suspicion. The problem is that in Afghanistan there is no one to raise the voice of women and anyway, Taliban does not listen to anyone’s voice.

Interestingly, this time some brave Afghan women have come forward to raise their voice against the Taliban. In Afghanistan’s urban areas such as Kabul, Faryab, Herat, Jowzjan and Ghowr, hundreds of Afghan women took to the streets carrying Kalashnikov rifles and Afghan flags. They are trying to show to the world that they do not approve of Taliban rule. That is why they are with the National Army in the war against the Taliban and the barbaric terrorists should also understand that women are not lumps of meat for their lust. They too an fight the war and are ready for the war. It is possible that the Afghan army will also train and equip such brave women. However, in cities it may be possible to join and fight alongside the National Army, but what will happen in rural areas?

The painful and bitter reality of the present time is that the Afghan army has also left the rural areas defenceless. The Afghan National Army is focusing all attention on the security of the country’s

capital Kabul and various provincial cities. The Taliban took advantage of this vacuum immediately and took over the rural areas. Right now it is difficult to say how much of the country is with the Taliban and how much is with the army. But wherever there is Taliban, the life of women has become worse than hell. The number of women in Afghanistan’s population of 3.80 crore is about 1.8 crore. Today, after two decades of tasting freedom, Afghan women and girls are again scared of a repeat of that dark era of confinement as the Taliban advances and the world remains a mute spectator!

I feel like crying at the plight of these women..!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

In Afghanistan, the terror outfit Taliban is committing horrendous atrocities on girls and women. It had been doing the same in the earlier regime too. But this time it is introducing sweeping restrictions on women in areas controlled by it. In defiance, women in many cities have picked up Kalashnikov rifles to defend their motherland against the Taliban.

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Policy & Politics

The good, the bad and the googly: The curious case of the Air India data breach

SITA is a multinational information technology company based in Geneva, Switzerland, which has been furnishing IT & Telecommunication services to the air travel industry since 2016. SITA released a statement intimating the airlines it has partnered with, in March, 2021, that it has been affected by a cybersecurity attack to its system due to which customer-data has been leaked.

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The Good, the Bad and the Googly: The Curious Case of the Air India Data Breach

An indispensable virtue for humankind – personal data and privacy, unfortunately, wanders for sale in the dark web; with a substantial increase in data leaks over the recent years having become a central cause of concern for all and sundry. The equilibrium of data protection & technological advancement is in a disarray, attributable to the significant rise in the misuse of users’ information and the wildfire-like upsurge of incidents of data breach which have no plausible explanation to them.

All things considered, in light of the rampant instances of data breach doing rounds in the news, the issue of the Air India- Data Breach has posed an out-of-ordinary question of paramount consequence – legally, can a mechanism for monetary compensation exist for instances of data- infringement?

WHAT REALLY TRANSPIRED IN THE AIR INDIA DATA BREACH?

SITA is a multinational information technology company based in Geneva, Switzerland which has been furnishing IT & Telecommunication services to the air travel industry since 2016. SITA released a statement intimating the airlines it has partnered with, in March, 2021, that it has been affected by a cybersecurity attack to its system due to which customer-data has been leaked. Some of the notable airline companies which were compromised included behemoths like Lufthansa, British Airways, Finnair, and American Airlines, who individually issued statements to inform their customers of the breach in March itself. SITA, however declined to make a comment on the incident to the larger public and merely stated that it, “acted swiftly and initiated targeted containment measures. The matter remains under continued investigation by SITA with the support of leading external experts in cyber-security.”

Interestingly, a few months later in May, 2021, Air India (“AI”) released a statement revealing that it was one of the compromised airline companies due to the cybersecurity attack on the SITA Passenger Service System (“SITA PSS”), and that there was a data-breach wherein personal data of its customers for the period of 26thAugust 2011 to 20th February 2021 was infringed upon. The cybersecurity attack lasted for 22 days, affecting the personal data of 4.5 million passengers, wherein the data breached included their name, passport information, frequent flyer details, and credit card information – but did not affect passwords including CVV/ CVC info. The lax inaction of Air India is questionable, looking at the magnitude of the attack and the impact on data privacy & security concerns. Dubious also was the defence put forth – AI shielded itself by claiming they made an announcement regarding the attack on their website on 19th March, 2021, but it seems like their announcement did not reach the doorstep of the consumers, leaving them confused, enraged, and with an impending feeling of vulnerability.

WITH EVERY ACTION, THERE IS A CONSEQUENT REACTION: THE CLAIM AGAINST THE BREACH

Ensuing the delayed appraisal of the attack, the AI management was sent a notice, by one of the aggreived customers (a journalist from Delhi), seeking damages of Rs 30 lakhs. In the notice, the airline has been accused of “knowingly, intentionally and deliberately leaking the personal data and for breach of sensitive information” of its customers. A reference was made in the notice to the famous case of K.S Puttaswamy v/s Union of India, in which the right to privacy was held to be a fundamental right under Article 21, subject to reasonable restrictions. As per the unanimous understanding of the nine-judge bench in the Puttaswamy judgement, the right to privacy includes one’s autonomy over his/her personal decisions, bodily integrity, and very importantly – a right to protection of one’s personal information.

The notice as sent to AI expressly mentions that as a corollary of the cyberattack, there has been a loss of autonomy over personal data and hence the journalist contends that she has been subject to hardship because of the violation of her right to privacy and her right to be forgotten – which is an extension of the rights recognised by the Apex Court in its Puttaswamy judgement.

Upon a careful perusal of the judicial acumen behind the Puttaswamy judgment, one can analyze that the interpretation given by the Honourable judges to the right to privacy is wide in its scope, which leads to a range of claims arising as a direct consequence of breach of privacy can be admissible; thus, the demarcation of the extent of application of this judgment has to be determined on a case to case basis, depending on the facts and other associated factors. Nonetheless, the number of data breaches occurring in neoteric times, in light of the KS Puttaswamy judgement, indicate a pivotal focal point: the urgent and dire need for the introduction of a data protection law in India.

FACT VS FICTION: CAN COMPENSATION INDEED BE SOUGHT, OR IS IT MERE WISHFUL THINKING?

In the not-so-distant past, we have witnessed a lot many data breaches that have emanated in India – we have had the personal data of over 29 million job seekers which found its way to the dark web, and the expose of the sensitive data of over 7 million CSC-BHIM users last year, and the (in)famous Domino’s India data breach which affected over 180 million of its customers, to cite a few examples among many such instances which have come to light, and the plethora of instances which have not.

In light of such breaches and in the absence of a specific data protection law, limited safeguards are guaranteed by the existing legal regime. Section 43A of the Information Technology Act, 2000 (“IT Act”) specifies that the body corporate, which holds, handles or deals with the sensitive data or information of a similar nature of a particular person, and under whose oversight a data or information breach has taken place (i.e., concerning our discussion, Air India), would be held negligent and liable to compensate such aggreived person. The victim of a data breach can thereby approach the Adjudicating Authority established under the IT Act seeking redressal – with the only catch being that the victim will have to show that he/she has sustained a monetary loss of INR Five Crores or less.

To add on, the umbrella protection of Section 43A comes with one particular condition which can be misused by body corporates, which we find in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“2011 Rules”) – whereby, Rule 8 says that the body corporate is absolved of liability to a large extent if it has complied with reasonable security practices, standards, and procedures as specified by the 2011 Rules. Thus, when Rule 8 of the 2011 Rules is read with Section 43A of the IT Act, the threshold of the onus on the body corporate is consequentially lowered – and the single pit-stop defence of a body corporate having adhered to “reasonable security practices and procedures” could let it off the hook hassle-free.

This showcases that as per the current legal regime governing data breach-compensation in India, no aggrieved customer/consumer/user can seek compensation ‘ipso facto’ – even if a particular body corporate concedes to a data breach on its end.

However, this raises a crucially pertinent question – should the corporate under whose aegis the data breach took place be vindicated merely because it adhered to set standards of security as per the IT Act and the 2011 Rules?

An answer in affirmative to the immediate question is troublesome on two grounds – One, the standard of care & reasonability established in the years 2000 and 2011 are far outdated when viewed in contrast with the degree & magnitude of data and information breach that we witness in 2021 and thus, accountability goes for a toss since the body corporate has to merely prove that it has adhered to a yardstick of standard of care, which is archaic & obsolete to its very core, for it to go scot-free; and two, the ambiguity and vagueness in the definitional aspects of the IT Act and its aligned Rules, along with the dearth of an efficacious checks-and-balances mechanism, makes space for expansive legal incertitude. In turn, all of this would provide for a potential leeway wherein the interests of corporations supersede the interests of customers/users/consumers – thereby defeating the very purpose which brought to existence the IT Act, and subsequently, its allied Rules.

CONCLUDING REMARKS

The quandary remains – when one is left to fend for themselves, can the doors of justice be knocked to claim reparation for a data breach? This question needs to be addressed taking into consideration the Personal Data Protection Bill, which is still pending on the floor of the Parliament and thus doesn’t have the accord of being considered a law, yet.

However, not all hope is lost as the legislative machinery is keeping up with the digitisation trends and bringing accountability to data collecting corporates – we now have E-commerce companies brought under the Consumer jurisprudence and the BIS framework for data privacy assurance.

Although, India doesn’t have a piece of legislation that addresses the issue of compensation or redressal of consumers in cases of a data breach so far – nevertheless, this makes the Air India data-breach case of a high consequence since the Court’s ruling will pave the way for corporate accountability, especially in cases of data breach.

The quandary remains – when one is left to fend for themselves, can the doors of justice be knocked to claim reparation for a data breach? This question needs to be addressed taking into consideration the Personal Data Protection Bill, which is still pending on the floor of the Parliament and thus doesn’t have the accord of being considered a law, yet.

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Policy & Politics

An analysis of the New Labour Code and its impact

The effectiveness of the New Labour Code—which were supposed to see the light of the day this year but deferred by a year due to Covid-19 pandemic—will be tested in due times when the same will be implemented.

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INTRODUCTION

Labour, enumerated as entry 24 & 25, falls under the Concurrent List of the Constitution of India. Therefore, both Parliament and state legislatures are competent to enact laws regulating labour. The Union Government stated that there are more than 100 state and 40 central laws regulating various aspects of labour such as resolution of industrial disputes, working conditions, social security and wages, etc. Pursuant to the recommendations of the Second National Commission on Labour, which submitted its report in June, 2002, the union legislature passed The Occupational Safety, Health and Working Conditions Code, 2020 (hereinafter as the ‘Code’). It was re-introduced in Lok Sabha by the Union Minister of Labour and Employment, Mr. Santosh Kumar Gangwar, on September 19, 2020, with the new changes which lead to the withdrawal of the Occupational Safety, Health and Working Conditions Code, 2019 (hereinafter as ‘OSH Code, 2019’). As the OSH Code, 2019 was referred to the Department related Parliamentary Standing Committee on Labour, which suggested substantial number modifications to the code and also in the light of Covid-19 pandemic, the Union Government also proposed certain changes to the OSH Code, 2019. The Code consolidates 13 existing Acts regulating health, safety, and working conditions, which include the Factories Act, 1948; the Mines Act, 1952; and the Contract Labour (Regulation and Abolition) Act, 1970. The OSH Code intends to amalgamate, simplify, consolidate and rationalise more than 600 provisions of the 13 laws mentioned in a single code consisting of around 143 provisions.

EXTENT

The Code emphasizes on health, safety and welfare of the workers employed in various sectors such as industry, trade, business, manufacturing, factory, motor transport undertaking, building and other construction works, newspaper establishments, audio-video production, plantation, mine and dock-work and service sectors. It also aims to provide a broader legislative framework, thereby, enabling the workmen to secure just and humane working conditions and, enables the government at both the union and the state level to make rules and regulations in consonance with the emerging technologies and developments in the industrial sector.

IMPLICATIONS OR CHANGES IN THE LABOUR JURISPRUDENCE

The Code aims at reducing the burden of the employers as it replaces multiple registrations under various enactments to a single common registration, one licence and one return, ultimately creating a centrally consolidated database which will be helpful under ease of doing business policies of the Governments. The Code places an obligation on employers to conduct free annual health check-ups for their employees, to ensure the disposal of hazardous and toxic waste including e-waste, to issue an appointment letter to every employee on their appointment in the establishment.

CONSTITUTION OF ADVISORY BOARDS AT BOTH NATIONAL & STATE LEVEL

The Code states that the Central Government shall constitute a National Occupational Safety and Health Advisory Board which will discharge the functions conferred on it by or under the Code and to advise to the Central Government on the matters relating to standards, rules and regulation to be framed under the Code. The State Government shall constitute a similar type of board to be called the State Occupational Safety and Health Advisory Board which will advise on the matters arising out of the administration of the Code as may be referred to it by the State Government.

CONSTITUTION OF SAFETY COMMITTEES

The appropriate government may require a constitution of safety committees in certain establishments, and for a certain class of workers, consisting of representatives of the employer and the workers, however, the number of employer representatives shall not exceed the employee representatives. The function of these committees will be to act as a liaison between employers and employees. In any establishment which is a factory employing 500 workers or more, or a factory engaged in hazardous work employing 250 workmen or more, or a building or construction work employing 250 workers or more, or a mine where more than 100 workmen are employed in ordinary course; the employer will appoint safety officers according to the qualifications prescribed by the appropriate government.

In another welcome step towards providing some semblance of social security to the unorganised sector workers, the new Code provides for the establishment of a Social Security Fund. Any establishment having 100 workers shall have a canteen facility and that should be provided by the employer. For the appointment of welfare officers under the Code, the minimum number of workmen in any establishment is 250.

CONDITIONS OF EMPLOYMENT

Workers cannot be subjected to work for more than 6 days in a week, one day off every week and will be entitled to one day off for every 20 days of work. Workers or Employees are entitled to receive wages for the work done overtime at the rate of twice the normal wage rate as per the scheme of the Code. Under the Code provisions have been made for the employment of female employees by the employer for working beyond 7 pm till 6 am (basically night shifts) with their consent and conditions relating to safety, holiday, working hours. Furthermore, the women workers are entitled to be employed in all establishments for any kind of work including hazardous ones subject to the conditions that the appropriate government may require the employer to provide adequate safeguards prior to their employment in hazardous or dangerous operations. The Code provides that the wages to the audio-visual workers, shall be disbursed electronically and this will ensure transparency, thereby helping in keeping and maintenance of the records as well.

FALLACIES IN THE NEW CODE

As the Code consolidates the provisions of the 13 legislations related to the subject but at the same time it is unable to simplify them or be all inclusive while dealing with the matters dealt by those laws. These include provisions on registration, duties of employers, and filing of returns. It also includes additional provisions which are applicable to the specific types of workers such as contract labour, inter-state migrant workers, audio-visual workers, or those in mines, beedi & cigar workers, construction workers, factories, and plantations.

Major Safety Issues sidelined & some sectors left out

For example, the Code requires that any person suffering from deafness or giddiness may not be employed in construction activity which involves a risk of accident. The question to be posed here is why such a general safety requirement is not provided for all workers or why the legislature ignored such an important aspect. Similarly, the Code provides for registration of employment contracts for audio-visual workers, raising the question of why there is a special treatment for this category. Furthermore, the disputes related to the contracts of audio-visual workers will be resolved by the dispute resolution mechanisms devised by the appropriate government, if still the dispute remains unresolved the parties may invoke the jurisdiction of the Industrial Tribunal established by the appropriate government under the Industrial Disputes Act, 1947.

The Code under section 2(1)(zx)(a)(i) contains health and safety provisions for workers in plantations measuring at least five hectares. In its report on the OSH Code, 2019 the Department related Parliamentary Standing Committee on Labour noted an assurance of the Union Ministry of Labour and Employment, that workers in plantations measuring less than five hectares would be covered in the Code on Social Security, 2020. However, the definition of a ‘plantation’ in the OSH Code, 2019 retained the five-hectare threshold. This recommendation has not been incorporated in the Code.

NO PROPER FORUMS FOR APPEAL

The Code bars the civil courts from hearing any matters under the code. In some matters where persons are aggrieved by the orders of authorities such as, Inspector-cum-facilitator in the case of factories, or by the revocation of a license for contractors, the Code under section 119 (6) provides for an administrative appellate authority to be notified by the appropriate government. However, it does not provide a proper judicial mechanism for hearing disputes under the code but provides a quasi-judicial one to be notified by the appropriate government as opposed to the earlier regime, for example the functions and constitution of a labour court were clearly laid down under Industrial Disputes Act, 1947. It can be argued that the bar on civil courts from hearing matters under the code, deny aggrieved persons an opportunity to challenge certain issues such as relating to the contractual terms in case of contract labour before a civil court of competent jurisdiction, as such matters may be governed by the terms of contract falling under Indian Contract Act, 1872. The only judicial remedy available to a person aggrieved is to file a writ petition before the relevant High Court, as the High Court is vested with power of superintendence over the courts and tribunals functioning under its territorial jurisdiction.

WEAKENING OF THE INSPECTION SYSTEM

The Code weakens the inspection system in numerous ways. To make matters adverse, the code is silent on the powers of inspectors envisaged by ILO Conventions ratified by India, the provisions such as free entry at any time and without prior notice and as frequently as possible to secure effective application of laws by the establishments of Labour Inspection Convention, 1947 are diluted by the passing of the Code.

EXCESSIVE DELEGATION OF POWERS & REGRESSIVE APPROACH TOWARDS DEFINING KEY TERMS

Under the Constitution, the legislature is the law making organ and the executive is responsible for their implementation. It is often observed that the legislature enacts a law on a specific entry/subject within its domain covering the general principles and policies, and further, delegates detailed rule-making to the government thereby, allowing expediency and flexibility. However, time and again the courts have reiterated that certain essential functions and powers should not be delegated to the government which include, framing the legislative policy on a particular subject matter to determine the principles of the law. Also, it is the general principle that any rule made as a delegated legislation should also remain within the scope of the parent legislation. The Code in section 127, also gives the appropriate government the power to exempt any establishment for a period to be specified in the notification providing exemption. Further, it also enables the state governments to exempt any new factory from any or a group of provisions of the Code in the interest of creating more economic activity and employment. Therefore, the appropriate government has wide discretion in providing exemptions under the Code. Every factory generates employment, and public interest could be interpreted broadly. Also the exemptions could cover a wide range of provisions including those related to hours of work, safety standards, retrenchment process, collective bargaining rights, contract labour. The low numeric thresholds with respect to the number of workers would create adverse incentives for establishment sizes to remain small, in order to avoid complying with labour regulation and therefore the real intention of the legislature will remain unfulfilled as the laws will not be applicable to them. It is worth noting that the Factories Act, 1948 only permitted exemptions from its provisions during the cases of public emergency, and such exemptions were limited to three months. The Code under its scheme also envisages similar provision but however, the life of such exemptions is that of one year at a time. But the drawback here is the regressive approach of the legislature when it defines the phrase ‘Public Emergency’, in explanation to section 128 of the Code, as a state of a grave exigency, whereby, the security of the union or any part of territory is threatened due to war, or external aggression, or internal disturbance. Implications of this could be that in near future the government may invoke the internal disturbance condition to suspend the application of the code and this will be a severe blow to the rights of the workers across India.

Also, this situation could be done for indefinite time as the maximum life for a notification issued after invoking this provision is one year, but this would be circumvented by re-issuing the notifications.

CONCLUSION

The (in)effectiveness of the Code and the rules made thereunder, will be tested in due times when the same will be implemented. These reforms were to see the light of the day this year but due to another deadly wave of the Covid-19 pandemic, the Union has deferred the same by another year. Also passing of these new laws is nothing short of packing the old & aged wine, into some new bottles and displaying them, so that it may attract some new customers to the tavern.

The Code under section 2(1)(zx)(a)(i) contains health and safety provisions for workers in plantations measuring at least five hectares. In its report on the OSH Code, 2019 the Department related Parliamentary Standing Committee on Labour noted an assurance of the Union Ministry of Labour and Employment, that workers in plantations measuring less than five hectares would be covered in the Code on Social Security, 2020. However, the definition of a ‘plantation’ in the OSH Code, 2019 retained the five-hectare threshold. This recommendation has not been incorporated in the Code.

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