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Exploring Union Budget 2021

The Finance Minister was responsive to the needs of the homebuyers and the ailing real-estate sector as well. In the Budget 2019, the government had provided an additional deduction of interest, amounting to Rs 1.5 lakh, for loan taken to purchase an affordable house. It has now been proposed to extend the eligibility of this deduction by one more year. The additional deduction of Rs 1.5 lakh shall therefore be available for loans taken up until 31 March 2022.

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budget 2021
Budget 2021

The Hon’ble Finance Minister announced the Budget 2021 with prime focus on six pillars – health and wellbeing, physical and financial capital and infrastructure, inclusive development for aspirational India, reinvigorating human capital, innovation and R&D, and minimum government – maximum governance. Despite limited fiscal headroom due to the pandemic, the Finance Minister maintained status quo on taxes and made allocations in all core areas to spur economic growth. The resultant Budget was growth-oriented, reassuring one that shall induce positivity and foster growth.

The Finance Minister proposed to enhance spending on healthcare and infrastructure, which will have the desired impact of generation of employment. Moreover, increased FDI limit from 49% to 74% for insurance sector, introduction of IPO for LIC and privatization of a few national banks would help bring liquidity in the market.

Direct Tax Measures

On the direct tax front, the Finance Minister began by offering her pranaam to the senior citizens and acknowledged their contribution in nation building. In order to provide relief to the elderly in terms of compliance, it was announced that such resident seniors above the age of 75, would not be required to file an income tax return, if they derive income in the nature of pension or interest (from the same bank in which they receive their pension income). Based on a declaration furnished by such taxpayers, the paying bank will deduct tax at source on income computed after giving effect to applicable deductions and rebate.

The Prime Minister Narendra Modi led government has always promoted digital transactions to enable greater ease of doing business. Accordingly, a slew of measures were introduced that suggest the government’s intent of transforming India into a digital India. For instance, the government has offered incentive in the form of relaxation of threshold for applicability of tax audit. It has been proposed to increase the threshold limit for a person carrying on business from INR 5 crores to INR 10 crores, where 95% of business transactions are done in digital mode.

CHANGING WAY OF DISPUTE RESOLUTION

Indian Tax Administration is also changing its ways. Driven by the principle of ‘minimum government and maximum governance’, the tax department went for a ‘faceless e-volution’ only last year. Resultantly, the entire chain of events- right from the filing of tax return to the dispute resolution has gone digital. The Budget 2021 extended the faceless procedures for disposal of appeals before the ITAT as well, on the same lines as the faceless appeals scheme. While the nitty-gritties in respect of the new scheme are yet to be notified, it is felt that the government ought to have waited for the successful implementation of faceless assessment and faceless appeal before hastily introducing faceless ITAT. Notably, ITAT is the final fact finding authority, for the taxpayer to argue and counter argue their tax position in light of differentiating facts. Digitising will change the litigation process.

Additionally, to provide early tax certainty for preventing new disputes and settling issues at initial stage for small and medium taxpayers, constitution of DRC has been proposed. Established with the power to reduce or waive any penalty or grant immunity from prosecution for any offence under the Income Tax Act, the DRC shall only handle disputes where returned income is up to INR 50 lakhs (where return has been filed) and aggregate amount of variation is up to INR 10 lakh. Further, orders on account of cases of search, requisition, survey or information received under DTAAs, case of detention, prosecution or conviction under various laws shall not be eligible to be taken up by the DRC.

Even the Authority of Advance Rulings has been proposed to be restructured. Under the existing provisions of the Act, the AAR consists of a Bench, including a Chairman who should be a retired judge of Supreme Court or Chief Justice of a High Court. The Bench cannot function in the absence of Chairman or Vice Chairman, which causes significant delays. To expedite the disposal of applications, it is proposed to constitute a Board of Advance Ruling, which shall substitute the existing structure. The Board would now consist of two members, not below the rank of Chief Commissioner. The rulings given by the Board will not be binding on either applicant or department and can be appealed before the High Court. Foreign investors might be reluctant to apply to a board for advance rulings that is manned by commissioners, because they would fear that the decision is going to be against them from the very beginning. Further, that fact that the ruling would not be binding may act as a deterrent for foreign investors, considering the looming uncertainty of tax cost of doing business in India.

INCENTIVISING STARTUPS

Startups contribute to economic dynamism by inciting innovation and injecting competition. Recently, start-ups have borne a huge burnt of economic devastation cause by the pandemic; therefore, the Finance Minister extended the benefit of tax holiday and capital gain exemption upon investment in a start-up. Entire profits and gains derived from an eligible business by an eligible start up is allowed as deduction under section 80-IAC of the Income Tax Act, for three consecutive years out of ten years at the option of Assessee. The deduction is subject to the condition that the eligible start up is incorporated on or after April 1, 2016 but before April 1, 2021. It has now been proposed to extend the outer date of incorporation by one year, to March 31, 2022. Additionally, to incentivise investment in start-ups, it has been proposed to extend the benefit under section 54GB of the Act by one year. The said section provides for exemption of long-term capital gain arising from transfer of residential property, owned by eligible assessee, if the assessee utilizes the net consideration for subscription of equity shares of eligible start up. It has now been stipulated that the residential property can be sold until March 31, 2022.

Furthermore, NRIs are now allowed to incorporate One Person Company (OPC) and grow without any restriction on the paid up capital and turnover, and are allowed to convert into any type of company at any time. Further, the residency timeline has also been reduced from 182 to 120 days, hence even NRI’s shall be allowed to form an OPC in India. The measure was intended to incite founders with ideas, to incorporate a limited liability structure at an early stage and should help India climb up the EODB ranking.

RESPONDING TO THE NEEDS OF THE REAL ESTATE SECTOR

The Finance Minister was also responsive to the needs of the homebuyers and the ailing real-estate sector as well. In the Budget 2019, the government had provided an additional deduction of interest, amounting to Rs 1.5 lakh, for loan taken to purchase an affordable house. It has now been proposed to extend the eligibility of this deduction by one more year. The additional deduction of Rs 1.5 lakh shall therefore be available for loans taken up until March 31, 2022, for the purchase of an affordable house. Further, the safe harbour threshold limit in case of transfer of land and building has been increased from 10 to 20 percent. Therefore, where the stamp duty value of a property exceeds 120 percent of the consideration received or accruing because of the transfer, such consideration shall be deemed to be the transfer value of the property. However, the relief has only been accorded in case the transfer of residential unit takes place during the period from November 12, 2020 to June 30, 2021 and is by way of first time allotment to any person. Further, the consideration received should not exceed INR 2 crores.

Additionally, amendments to SEBI regulations have been proposed to enable InVITs and REITs to raise funds through debt from FPIs. This will further ease access of finance to InvITs and REITs thus augment funds for infrastructure and real estate sectors.

AUTOMOBILE SECTOR

The Indian automobile sector, which was already facing an unparalleled slowdown, was further emaciated due to the pandemic and subsequent localized lockdowns. The sector will benefit immensely from the ‘voluntary vehicle scrapping policy’, which is being devised to phase out old and unfit vehicles. Under the policy, vehicles would undergo fitness tests in automated fitness centres after 20 years and 15 years for personal and commercial vehicles, respectively. Given that BS VI has rolled out, the Policy is likely to have further positive impact on automobile sector and the environment by fuelling demand for cleaner vehicles.

Rationalising Provisions of Equalisation Levy

The Government’s efforts, so far, to build a favourable tax regime for genuine taxpayers cannot be disregarded. The government has worked incessantly to clarify ambiguous provisions of the law and issue detailed guidelines on new regulations. This time, the Budget rectified the anomaly of mismatch of effective date of income tax exemption with the applicability of equalisation levy. It has been stipulated that there will be a parallel exemption from income tax if equalisation levy is payable. Further, considerations taxable as FTS or royalty as per the provisions of the IT Act read with DTAA, shall be excluded from the purview of the new levy. Clarifications as regards what constitutes online sale of goods and online provision of services have also now been provided.

LIMITED LIABILITY PARTNERSHIPS

LLP is a legal entity form commonly used by small and medium enterprises for doing business in India. In addition to companies, decriminalizing of the procedural and technical compoundable offences now extends to LLPs. Decriminalising offences, which do not involve substantial violations, shall incentivise compliance, de-clog the criminal justice system and promote congenial business climate for LLPs.

Though LLPs are regulated the same way as companies in respect to conduction of audit, maintaining books of accounts, etc. they do not enjoy the benefit of lower tax rate as accorded to companies. In addition, it has now been clarified that LLPs cannot even opt for presumptive taxation (which is available to partnerships). While expectations were rife that some benefit in the form of rationalisation of provisions would be accorded to LLPs as well, they continue to hang in between with extensive regulatory requirements with no favourable tax structure.

REVAMPING ASSESSMENT/ REASSESSMENT PROCEDURE

Owing to the digitization drive in the tax department, it is now collecting information from law enforcement agencies and third parties in the form of Statement of Financial Transactions (SFT) and is disseminating the same to the taxpayers. Consequently, the assessment and re-assessment is largely information driven. In view of the same, the government has come out with a new way of conducting such proceedings. It has been proposed that before the issuance of notices for reassessment (other than search and requisition cases) the tax officer will conduct enquiries and give an opportunity of being heard to a taxpayer before determining whether such case is fit to be for further action. The time limit to issue a notice of reassessment in normal cases is proposed to be reduced from six years to three years from the end of the relevant assessment year. In specific cases, where there is evidence available that income escaping assessment amounts to INR 5 million or more, the time limit to issue notice is 10 years, subject to approval of PCIT.

EYEING THE HNI’S INCOME FROM PROVIDENT FUND WITH INTEREST

The prevailing provisions of the Income Tax Act grant an exemption in respect of any payment from specified provident funds. Additionally, accumulated balances due and payable to an employee by specified provident funds are also exempt subject to certain conditions. It has now been proposed to tax the interest income accrued on account of employee’s contribution in excess of INR 2.5 lakhs in any previous year. This amendment will be effective from Financial Year 2021-22 onwards.

The amendment is targeted towards high-income salaried class, who stash away a huge chunk of their salary in these funds. Apart from earning high-rate assured returns, they also get tax exemption on the same. The proposed amendment shall not have a bearing on the middle-income group earning income up to INR 20.83 Lakh (assuming that 12% of the same is contributed to the Provident Fund). However, high-salaried individuals may be dragged into the tax net since their contribution may exceed INR 2.5 Lakhs.

IMPOSING AGRICULTURE INFRASTRUCTURE DEVELOPMENT CESS (AIDC)

To finance the improvement of agriculture infrastructure and other development expenditure, it has been proposed to impose AIDC on the import of specified goods. It has been declared that rate of AIDC would not exceed the rate of customs duty and would be calculated as a percentage of value of goods, determined in the same manner as the value of goods is calculated for the purpose of customs duty under Customs Act. Further, AIDC is in addition to any other duties of customs chargeable on such goods, under the Customs Act or any other law for the time being in force. The corresponding reduction of basic customs duty shall ensure that AIDC does not lead to additional burden on the consumer.

INDIRECT TAX MEASURES

Budget 2021 served as a means to address the perplexities revolving around the taxation laws, thereby making taxpayers happy without impinging government’s funds too much. India is in the fourth year of the GST regime. While numerous measures such as filing of nil return through SMS, quarterly return and monthly payment for small taxpayers, electronic invoice system, pre-filled editable GST return, etc. have already been introduced, Budget 2021 focussed on removing further irregularities in the new Act. For instance, the provision requiring payment of GST on net basis has been introduced with retrospective effect from 1 July 2017 providing much needed relief to taxpayers.  Changes have been made in the GST Legislation to restrict the zero-rated supply on payment of integrated tax only to a notified class of taxpayers or notified supplies of goods or services only. Further, it has been proposed to allow taxpayers to file a self-certified annual return (GSTR-9) along with a reconciliation statement (GSTR-9C), instead of certification by a Chartered Accountant /Cost Accountant.

With the twin objective of promoting domestic manufacturing and helping India get onto a global value chain and export better, major review of more than 400 old Customs exemptions are proposed to be conducted through extensive consultation.  From 1st October 2021, a revised customs duty structure, free of distortions is proposed to be introduced. Any new customs duty exemption henceforth would have validity up to the 31st March following two years from the date of its issue.

ACCORDING BENEFITS TO INTERNATIONAL FINANCIAL SERVICES SECTOR

IFSC’s ranking among global fund jurisdictions in the last two years has significantly improved owing to several ingenious and swift changes to IFSC framework in the last two years. In furtherance thereof, the finance minister has come up with extensive new changes.

Though widely anticipated, exempting funds and fund managers from safe harbour rules for managing offshore funds from India, is an extremely intrepid and encouraging move. Extending tax holiday to investment division of banking units in IFSC on the lines of Cat III AIFs investing in India will enable such banks to invest in the rupee market without taxation.

Exemption to foreign aircraft lessors from aircraft lease rentals paid by a lease in IFSC will add a new dimension to the way aircraft leasing is structured. Currently, such leasing companies are housed in countries like Ireland. If a foreign lessor as well as a lease in IFSC are exempted from Indian tax (under existing tax holiday scheme), new structures will emerge for global aircraft leasing such as Ireland and Hong Kong.

Providing for tax neutral relocation of foreign funds to IFSC with continuity of original treaty benefits on the lines of merger/demerger provisions will encourage funds from countries to move to IFSC.

CONCLUSION

The government, with its unconventional and admirable methods has helped India emerge as a strong yet liberal nation with clear signs of progress. The Budget 2021 was surely an enthralling one as India’s expectations were running high. The well-structured Budget portrayed an honest effort of the government to address the fiscal and economic issues and render procedural simplification.

(With inputs from Vasudha Arora)

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Policy & Politics

Stateless, homeless but not futureless: A saga of refugees

According to Article 1 of United Nations Convention on Status of Refugees, refugees are those who are ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country’.

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In 2019, when we all were relishing our New Year’s Eve and making new year resolutions to achieve different set of goals, somewhere, a midget virus took birth to show its humongous impact, which led to global pandemic, which only got deepens with time. To fight a battle against novel coronavirus, government of different nations laid down akin guidelines which are wearing masks, using sanitizer, washing hands and maintaining social distancing. We all reside within our safe spaces and could easily adhere to the said guidelines but there are people living under altogether different set of circumstances, those people are Refugees. The refugees are forced to leave their native place to avoid war, financial crisis, etc. Human rights and health of refugees are one of the major concerns for any country. The refugees were already living under harsh circumstances with the outbreak of Covid-19, the situation has worsened and had impacted them in terms of health and income. This pandemic showed us the real operations of laws implemented for betterment of refugees. The refugees faced a lot of hurdles in keeping themselves safe during this pandemic as they have very small space to reside, which made it difficult for them to keep a safe distance and lack of funds for proper sanitization and medical safety. There are various international conventions, protocol and agreements to protect the rights of refugees which are UN Convention Relating to the Status of Refugee, 1951, Protocol Relating to the Status of Refugees, 1967, New York Declaration for Refugees and Migrants, 2016, with many other Indian constitutional rights. United Nations Human Rights Council actively implement laws and statues to safeguard refugees, in which India is not a signatory but actively participates which affirms rights to all person whether citizen or non- citizen. To look into the hopeful prospect, Refugees contributed efficiently to win battle against the pandemic by serving as medical staff in hospitals whether it is as nurse or cleaning the rubbish, sewing masks, conducting educational drives. The time has changed and refugees are proving themselves as an asset to the country they are residing in.

INTRODUCTION

When a person is tuck in a bad situation the first thought which comes to mind is to escape the situation, find a better and safe space to avoid the harsh outcome of that situation but what if one cannot find safe space around, this is the exact situation which is faced by lots of people who ultimately have to leave their home, state, country and most importantly their identity at their native place and are identified as Refugees.

According to Article 1 of United Nations Convention on Status of Refugees, refugees are those who are “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”

India is a country which perpetually keep debating on the rights of refugees and keep participating in many regulations made to safeguards rights of refugees. In India, there are many refugees’ groups from neighbouring countries but it does not have any proper laws and statutes for Refugees neither it is signatory to the 1951 UN Convention nor 1967 protocol on Status of Refugees. India always tries to help refugees on humanitarian grounds.

A BRIEF CHRONICLE OF REFUGEES IN INDIA

India is considered to be the second populated country and is one of the countries experiencing refugees lately. The Partition of India–Pakistan resulted in a huge number of people migrating to different counties. After India got its Independence, almost 20 million people came to India and to address such huge number of refugees India had to set up many relief camps. People started coming in from Bangladesh, Pakistan. Eventually, it passed the Rehabilitation Financial Administration Act in the year 1948 to deal with these issues with funding. A Huge number of people were displaced from India to Pakistan and vice versa. Another instance was happened in 1959 when Dalai Lama with his followers approached India as refugees and India provided them a Political Asylum. The year of 1971 saw many refugees transmitting from East Pakistan to India. In 1983 and 1986 India had refugees approaching in from Sri Lanka and Bangladesh respectively. By the end of 1992, India has hosted 237,000 displaced persons and 2,000,000 migrants. India always has some or the other Refugees presence throughout its history.

MAJOR GROUP OF REFUGEES

Around the globe, people leave their home to protect their families and themselves from many undesirable activities. Behind the records are people filled with exceptional life experiences and dreams for the future. There are mothers longing to return home, fathers desire to work again, children looking for a childhood.

At the moment, we see around 80 million people are displaced from their homes. We are witnessing shift in humanity like never before.

Over half of total refugees come from just five countries: Syria, Afghanistan, South Sudan, Myanmar and Somalia. All those refugees have suffered incredible loss, whether they are displaced in their own country or located overseas for safety. Yet they are filled with potential and the strength to triumph over misfortune.

THE COUNTRIES TO WHICH REFUGEE CRISIS ARE HITTING HARD

• Syria

The Syria crisis has accelerated melod3ramatically than any crisis on planet, and Syrians are still the largest forcibly displaced population in the world. After war erupted in March 2011, it took 2 years for 1 million people to find a place. Another million were displaced within six months. Now 9 years on, more than half of the pre-war population has been internally displaced or forced to seek safety in neighbouring countries. There are more than 13.2 million people on run, counting more than 6.6 million people who have fled across the borders.

• Afghanistan

The factors which have led to a massive migration from Afghanistan are years of unemployment, insecurity and political instability. More than 2.7 million people have been pushed to leave the country to Iran, Europe or Pakistan, whilst more than 2.5 million people are assessed to be living in new and prolonged displacement.

The United Nations evaluates that an average 1,100 people a day — mostly women and children — were forcibly displaced by violence in 2017, and over the years more than half of people displaced by disruptions in Afghanistan have been displaced at least twice, compared to just 7 percent five years before.

• South Sudan

The situation in South Sudan is dire, and the largest refugee crisis in Africa. More than 4 million people have been relocated from their homes since the start of a brutal civil war in 2013, including approximately 2.2 million people who have been made to cross into neighbouring countries, the majority of them were women and children.

What is already a perilous humanitarian crisis continue to worsen by ongoing warfare, flooding and drought. There are need for clean water, health care, sanitation, food, shelter, and protection across the country, and millions of people over there now require urgent support to survive.

• Myanmar

In August 2017, violence broke out in Myanmar’s northern Rakhine State, over 7,42,000 Rohingya have fled to southeast Bangladesh. Even before the crisis, Bangladesh was grappling with humanitarian challenges, and accommodating around 2,12,000 Rohingya who had escaped Myanmar during periods of violence and persecution. More than half of them are children.

Today, there are around 860,000 Rohingya in search of refuge in Bangladesh and at least 1.3 million people — Rohingya refugees and Bangladeshi host communities — who bank on humanitarian assistance by other counties to meet their basic needs. These populations live in congested camps and communities, highly vulnerable to harsh weather conditions and cyclone seasons.

• Somalia

With more than two decades of unending conflict and natural hazards which have driven nearly 1 million Somalis to live in poor refugee camps in the Horn of Africa and Yemen, whilst around 2.6 million people remain expatriate.

Across the country, many people are in dire need of assistance. In the early 2020, it was assessed that 1.2 million people had to face acute food insecurity — a number that is anticipated to increase as swarms of desert locusts infest farmland in the Horn of Africa and East Africa.

CHALLENGES FACED BY REFUGEES

Refugees who ended up in different set of camps or different countries deal with many problems in their life. They are prone to harsh living conditions. They have limited resources to fulfil their needs, live in tents, have limited food, water, clothing. They survive without adequate shelter and have to face many difficulties. Those who do not wish to join refugee camps and shift to countries, often deal with unexpected hardships, they also face cultural and language problems. The refugee children are the ones who have to face the real struggle as they find it very hard to continue with their schooling and fail to understand the situation at such a tender age. Most refugees take up some or the other labour work which feed them in the country they are living and are often exploited by the recruiters. Different countries have different set of rules and regulations foe handling refugees, some countries grant citizenship in lesser number of years than the other. The benefit of being a refugee in one country are different than the other. They face financial difficulties, discrimination, and are psychologically affected.

Despite of all the struggle they face, refugees are strong and battle with their situation to make most out of it. They are grateful for the opportunities they get. Most of them had such basic desires: to have their children succeed in school and to be able to put a roof over their heads. After everything they had already been through, they were doing all that they could to keep their families afloat in the new and scary place called refugee camps.

LEGISLATION FOR REFUGEES: INTERNATIONAL STATUES

Universally, there are various conventions, declarations and protocol for refugees. Some of them are UN Declaration on Territorial Asylum (1948), Universal Declaration of Human Rights (1948), Convention relating to the Status of Refugees (1951) and Protocol (1949), Convention relating to the status of Stateless Persons (1954), International Convention on Civil and Political Rights, Convention on the Reduction of Statelessness (1961), Convention on the Elimination of Discrimination against Women (1979), Guiding Principles on Internal Displacement (1998). Some of the Regional Refugee Laws are Cartagena Declaration (1984), Asian African Legal Consultative Committee Principles (1996).

The UN Convention concerning the Status of Refugee of 1951 was adopted on 28 July 1951 and entered into force on 22 April 1954. It repealed previous laws and set a most comprehensive codification of the rights of refugees. The Convention deals with General Provisions, Juridical acts, Lucrative Employment, Welfare schemes, Administrative measures, Executory and Transitory powers. These chapters are already defined and therefore they serve the aim of aiding refugees. Article 1 of the convention defines the term ‘refugee’, Article 12 and 13 deals with personal status and Movable and Immovable property respectfully. Article 16 deals with access to courts because the 1951 Convention only give blanket to those people who became refugees as a result of events occurred before 1951, Protocol concerning the Status of Refugees was entered into force on 4 October 1967, because new refugee situations have arisen after the convention and therefore the new refugee didn’t fall into the Convention. So, this protocol makes sure that equality reaches to all refugees.

INDIAN STATUES

The Constitution of India contains few articles which are applicable to the refugees during their stay in India. The most important of all is Article 21 which deals with Right to Life and personal liberty, it applies to all irrespective of their citizenship. Many judgements have been delivered by the apex court based on Article 21 in respect of refugees.  Article 14 assures the person right to equality before the law.  Article 5, 6, 7, 8, 9, 10,11,12, 20, 22,25-28, 32, 226 are also available for non-citizens of India including Refugees. 

In the case of Visakha v. State of Rajasthan 1997 (6) SCC 241, the court has held that “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein”. In the case of Louis De Raedt v. Union of India, 1991 (3) SCC 554, the court held that the fundamental rights to life, liberty, dignity are available to everyone irrespective of their citizenship.

Some fundamental rights are guaranteed to non-citizens of India. In the case of NHRC v. State of Arunachal Pradesh 1996 (1) SCC 742, the court asked the government to safeguard the life and health of Chakma tribe that are in the state and that their application for citizenship should be sent to the authorities concerned instantly. 

There are definitely a plenty number of protections given to the refugees staying in India under the Constitution of India but are hardly in practice. The provisions of the Constitution give a hint about ambition towards refugees, but due to its own reasons India doesn’t sign any Conventions related to it.Other than Constitution of India, India does not have any laws which specifically deal with Refugees. But India is in dire need of one, considering the recent conflicts for land by the refugees in different states of India.

STATUTORY BODIES TO SAFEGUARD RIGHTS OF REFUGEES

United Nations Human Rights Council (UNHRC) is a body dedicated to foster and protects the rights of refugees across the globe, established on 15 March 2006, the Geneva, Switzerland.

The main objective of UNHRC is to investigate claims of human rights abuse in member states of the United Nations and ensure that the said human rights matters are addressed and upheld to the maximum extent.

In India, UNHRC got involved since the issue of Tibetan refugees and the Bangladesh crisis in 1971. The UNHRC office located in Delhi, works to help refugees become self-sufficient with income-generating activates with the help of NGO’s. The main duty of UNHRC in India is to make sure that the refugees are not involuntary sent back to their country from which they have fled until the conflict rests in their country.

National Human Rights Council (NHRC) is a standalone entity of the Government of India which promotes and protects human rights, established in 1993 and amended in 2006. In 1994, NHRC gave directions to Tamil Nadu Government to deliver medical help to Sri Lankan refugees. In 1995, it filed a PIL on Arunachal Pradesh Government regarding the government officials not supporting Chakmas tribe, and got the decision of the court ordering the government to provide necessary help to the group. NHRC is always on the frontline in the matters which talks about rights of refugees and offering them better living standard.

REFUGEES AFFECTED BY OUTBREAK OF COVID-19

With the Covid-19 pandemic spread, human rights organizations warned adverse impact the coronavirus will have on the world’s most helpless populations which include refugees.

Refugees live in small area with great density but it varies by refugee population and what the status of the pandemic is where they are living. Refugees are infected and affected in a similar way to their host communities. Yet refugees are more vulnerable. They are not well-equipped with the medical facility as there aren’t many hospitals having good facility of ICU and ventilators, as there are not many qualified doctors to deal with adverse health condition caused by coronavirus.

But at the same time, they came out as a strong individual by providing helping hand in battle against this outbreak, they worked as frontline workers in healthcare sectors and also as essential workers. The demand of soaps and sanitizers soared high as people are advised to use them as cleaning agents against coronavirus, so, refugees manufactured it and made them more accessible to those in need. The pandemic caused the largest disruption to education in recent history, putting millions of children’s future and schooling at risk. Some refugees have stepped up to ensure that children of their community can continue learning and prepare themselves for better future.

CONCLUSION

Around the globe, though there are a number of conventions and laws protecting rights of refugees but they still have to fight for their basic rights. When a country as big and developing as India doesn’t have a Refugee Law, we can fathom that many countries have the same picture and are on the same ride. If UNHCR and NHRC work together to develop a better world for refugees, there will be much more development in the area of Refugee Law. There is definitely a need for India to set up a Law safeguarding Refugees, as in the future there may be many more concerns due to various reasons. Whenever UNHCR tries to do something regarding refugees NGOs should actively lend them the helping hand. Though Constitution of India protects the rights of refugees, still there needs to be a uniform Law that give equal rights to all the refugees. India continues to help refugees on the humanitarian view. Bearing the security issues in mind due to which India is not a signatory to the 1951 Convention, it should give due attention to all issues and rectify it accordingly. India should make stringent refugees’ laws and also take care that those law is not mistreated and mis-utilized by people who come to seek opportunities. By far Indian judiciary has done some really good work in regard to refugees by delivering many judgements like in the case of Dongh Lian Kham vs. Union of India (2016), the apex Court stated that the principle of non-refoulement is part of the guarantee under Article 21 of the Constitution of India irrespective of nationality. Many Rohingya refugees living in India are receiving aid, but India is planning to deport them to their terrain. In the past NHRC submitted a report for the need of Refuge law but didn’t receive a response but if UNHCR and NHRC join their hands, there could be a light at the end of tunnel.

Covid-19 showed us the real operations of laws implemented for betterment of refugees. The refugees faced a lot of hurdles in keeping themselves safe during this pandemic as they have very small space to reside, which made it difficult for them to keep a safe distance and lack of funds for proper sanitisation and medical safety.

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Policy & Politics

Uttarakhand High Court directs state to grant extraordinary pension to widow of police officer who lost his life while on duty

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While rising to the occasion, the Uttarakhand High Court has in a rare gesture most rightly in a latest, landmark, laudable and learned judgment titled State of Uttarakhand vs Smt. Preeti Chand in Special Leave No. 124 of 2021 delivered just recently on April 5, 2021 directed the State to sanction and grant extraordinary pension in favour of the widow of a police officer who lost his life while on duty. It has to be certainly applauded also as the widow has to bear the whole expenses of her, her children and the entire family herself for which she definitely needs support also. There is no reason for not appreciating and admiring it.

To start with, this commendable, courageous, cogent, composed and convincing judgment authored by Chief Justice Raghvendra Singh Chauhan for himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost observing in para 1 that, “For the sake of brevity and convenience, the party shall be referred to as arrayed in the writ petition.”

In real terms, this notable judgment starts laying itself bare in para 2 wherein it is observed that, “The petitioner-State has challenged the order dated 05.11.2020, passed by a learned Single Judge, in Writ Petition (S/S) No.590 of 2018, whereby the learned Single Judge has allowed the writ petition, and has directed the State to sanction and grant extraordinary pension in favour of the petitioner, Smt. Preeti Chand, a lady who lost her husband suddenly in call of duty.”

While elaborating on the facts of the case, the Bench then puts forth in para 3 that, “Briefly stated the facts of the case are that the petitioner’s husband, Mr. Ramesh Chand Rajwar, was a SubInspector (Civil Police) in the Police Department. In the year 2013, he was posted at Police Station Dharchula. He was incharge of the Special Operation Group (for short ‘SOG’) constituted for controlling typical crimes such as forest smuggling, and poaching. On 25.09.2013 at 8:15 P.M., the Police Station was informed that forest smugglers had entered the forest, and were carrying on their nefarious activities. Therefore, the petitioner’s husband went to the scene of crime in Tawaghat Tapovan. In order to show his departure from the police station, relevant entries were made in the General Diary. Unfortunately, while the petitioner’s husband was returning from the scene of the crime, his vehicle got trapped in a landslide caused by the heavy rains. A boulder struck the head of the petitioner’s husband; he died on the spot. Due to the death of her husband, the Department granted the family pension to the petitioner. But the extraordinary pension has not been granted to the petitioner. Therefore, the petitioner had filed an application before the Department for seeking the benefit of extraordinary pension. The Superintendent of Police, Pithoragarh submitted his report to the Police Headquarters, Dehradun “that the petitioner is entitled for receiving extraordinary pension”. By a letter dated 20.12.2016, in turn, the Police Headquarters recommended to the Office of Accountant General that the petitioner is, indeed, entitled to receive the extraordinary pension. By letter dated 27.02.2017, the office of Accountant General also recommended to the State Government that under the Rule 3, Sub Rule (3) of U.P. Police Extraordinary Pension Rules, 1961 (for short ‘the Rules’), petitioner is certainly entitled to receive the extraordinary pension. Furthermore, by letters dated 20.03.2017 & 08.09.2017, the Police Headquarters again recommended to the State Government that the petitioner should be granted extraordinary pension. However, despite the repeated recommendations both by Police Headquarter and by Accountant General, State rejected the petitioner’s claim. Left with no other option, the petitioner approached before this Court by filing the writ petition. By the impugned judgment dated 05.11.2020, the learned Single Judge allowed the writ petition in the terms mentioned hereinabove. Hence, the present appeal before this Court.”

On the one hand, the Bench points out in para 4 that, “Mr. Vikas Pande, the learned Standing Counsel appearing for the State, has vehemently contended that Rule 3 of the Rules are applicable to only those police personnel who are engaged against the dacoits, or armed offender, or foreign intruders or “during engagements in other activities”. According to the learned counsel, the words “other activities” was further clarified by the Government Order dated 19.08.1988. According to the learned counsel, the said G.O. mentioned the following categories:

firstly, police personnel who have died while fighting the dacoits or other anti-social elements; secondly, those who have died while fighting with the invaders; thirdly, those who have died while fighting with the terrorist; fourthly, those who have died while trying to control the violent crowd; fifthly, those who have died while tackling natural calamities such as flood, landslide, avalanche, earthquake, or while fighting with fire. According to learned counsel, the work assigned to the petitioner’s husband does not fall within any of these categories. Therefore, the petitioner’s case is not covered under the Rules. Hence, the Government was justified in rejecting the petitioner’s claim for receiving the extraordinary pension. Lastly, according to the learned counsel, the learned Single Judge has failed to notice the Government Order dated 19.08.1988. Hence, the impugned judgment deserves to be set aside by this Court.”

On the contrary, the Bench then discloses in para 5 that, “On the other hand, Mr. D.S. Patni, the learned Senior Counsel appearing for the petitioner, submits that Rule 3 of the Rules has used residuary words, namely, “any other action in which the police personnel is killed”. Moreover, these residuary words have been defined by the Government Order dated 19.08.1988. According to the learned counsel, the very first category i.e. “while fifing dacoit or any anti-social elements” certainly covers the case of the petitioner’s husband. After all, the petitioner’s husband was working for SOG, which was a special task force created for tackling the problems created by forest smugglers and poachers. Further, the petitioner’s husband was informed that forest smugglers/poachers have entered in the forest to carry on their nefarious activities; they need to be stopped immediately. Since, the petitioner’s husband was on duty to tackle the anti-social elements, like forest smugglers and poachers, the petitioner’s case falls under the first category mentioned hereinabove. Therefore, the State has illegally rejected the claim for granting the extraordinary pension to the petitioner. According to the learned Senior Counsel, the learned Single Judge has noticed this point. Moreover, as the impugned orders dated 27.02.2018 and 02.04.2018 were passed without assigning any reasons, since both these impugned orders are cryptic in nature, the learned Single Judge was certainly justified in quashing these two orders and in issuing the directions to the State Government as mentioned hereinabove. Hence, the learned Senior Counsel has supported the impugned judgment.”

Needless to say, the Bench then observes in para 6 that, “Heard the learned counsel for the parties, and examined the records, submitted by both the parties, and perused the impugned judgment.”

Most significantly, the Bench then without mincing any words puts forth in simple, straight and suave language in para 7 that, “Admittedly, the petitioner’s husband was initially working as a Sub-Inspector in Civil Police. However, in the year 2013, he was reposed with the responsibility of Incharge of the S.O.G.. In fact, S.O.G. was constituted for controlling the crimes committed in the forest either by those who are smuggling forest products, like precious woods, or by the poachers who indulge in killing wild animals for their own personal profits. Undoubtedly, on 25.09.2013, the petitioner’s husband was deputed to tackle these anti-social elements who threaten the wildlife, or the environment. Obviously, the petitioner’s husband was not discharging his duty simplicitor. In fact he was risking his life in order to tackle the menace caused by the forest smugglers, or poachers. Thus, it was a special duty, a dangerous task, performed by the petitioner’s husband.”

Please read concluding on thedailyguardian.com.

No less significant is what is then stated in para 8 that, “The Government Order dated 19.08.1988, clearly mentions the category of dacoits and anti-social elements. Any police personnel while fighting the dacoits and antisocial elements is covered by these category. Obviously, the forest smugglers and poachers do fall under the category of “anti-social elements”. As mentioned above on 25.09.2013, the petitioner’s husband was on special duty to control the anti-social elements; while returning from discharging his duties, the petitioners husband met his death. Thus, naturally, the petitioner’s claim for receiving extraordinary pension is clearly covered both by Rule 3 of the Rules, and by Government Order dated 19.08.1988.”

As it turned out, the Bench then lays bare in para 9 that, “A bare perusal of the orders dated 27.02.2018 and 02.04.2018, clearly reveals that they are cryptic in nature. Therefore, the learned Single Judge was justified in observing that any order that adversely affects the civil and fundamental rights of a person would have to be a reasoned order. Hence, the learned Single Judge was justified in quashing the impugned orders, and in issuing the necessary directions to the respondents.”

As a corollary, the Bench then holds in para 10 that, “For the reasons stated above, we do not find any illegality or perversity in the order passed by the learned Single Judge. This appeal, being devoid of any merit is, hereby, dismissed.” Finally, it is then held in the last para 11 that, “No order as to costs.”

To sum up, it needs no Albert Einstein to conclude that the Uttarakhand High Court has most wisely, most commendably and most courageously chosen to stand up in favour of the right of the widow whose husband who was a police officer and who lost his life while on special duty to control anti-social elements. It has therefore rightly directed the State to sanction and grant extraordinary pension in favour of the widow of a police officer. This will now save her from running from pillar to post for getting her basic rights. So there is no ostensible reason as to why the Uttarakhand High Court who has spoken so decisively in her favour in its judgment be not appreciated and applauded.

Sanjeev Sirohi, Advocate,

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Policy & Politics

Legalisation of medical marijuana: A boon or a bane?

Anushka

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Cannabis, which has many other forms such as Ganja, Charas or Bhang is a type of physio-pharmaceutical drug. Marijuana often evokes images of euphoria and relaxed lethargy. Some of the earliest human cultures ingested and smoked the leaves of the plant, and its consumption has persisted in modern society. Although it’s most commonly used as a recreational drug, marijuana also has important medicinal, religious, and spiritual applications. To some, it’s an important clinical substance that functions as a pain reliever, appetite booster, and sleeping aid. When smoke of cannabis is inhaled, rapid flow of THC takes place in the bloodstream of individual through lungs and is circulated throughout the body parts including brain. This THC impacts the brain receptors which eventually causes euphoria, dizziness etc. Hence the person who consumes the same experiences enhances sensory awareness & comfortable mentally.

MEDICAL USES

Objectively though, there are some scientific data to show that marijuana has some medical uses, foremost of which is the relief of pain, severe nausea and vomiting in cancer patients receiving anticancer chemotherapy or radiotherapy. In terminally ill cancer and AIDS patients, when treatment has shifted to palliative from curative, cannabis —which is also available in capsule or pill form in other countries—can make the patients more comfortable, with less pain and angst during the remaining days or weeks of their lives. It can allow for a peaceful death—something which the family of a terminally ill patient would find comfort in, seeing that their loved one has gone with tolerable pain and distress. Some would call it “leaving with dignity.” Cannabis has been reported to have other medicinal uses like relief of severe spasticity, chronic muscle and joint pains unrelieved by conventional treatments, psychological and mental conditions like attention deficit hyperactivity disorder, autism, bipolar disorder, childhood mental disorders, depression, alcoholism and Tourette syndrome.

ACTIVE INGREDIENT

The active ingredient in the cannabis plant is tetrahydrocannabinol (or delta-9-tetrahydrocannabinol, commonly known as THC). Other cannabis extracts or cannabinoids include delta-8-tetrahydrocannabinol, cannabidiol, cannabinol, cannabicyclol, cannabichromeme and cannabigerol. All of these other cannabinoids are less potent than THC but may also play a contributory role in the overall effect of cannabis in the body. I can imagine that our health authorities, particularly our Food and Drug Administration (FDA), are mentally struggling on the issue whether to legalize medical marijuana or not. Despite the potential benefits of marijuana, it has potential negative side effects — it serves as a “gateway drug” to other dangerous substances and is linked with increased rates of crime and delinquency. High-frequency marijuana use has also been associated with neurological abnormalities, respiratory issues, and improper perinatal development. A major roadblock in marijuana legalization is a lack of carefully conducted clinical trials. The United States Food and Drug Administration (FDA) requires thousands of clinical subjects in controlled experiments in order to push the development of a drug. So far, researchers have not published enough large-scale clinical studies which indicate that the benefits of marijuana outweigh its risks. However, the merits of marijuana cannot be ignored. Its prospective medical applications are various, and its status as an illegal drug is undergoing a shift as more people are accepting its recreational use.

CUSTOMARY IMPORTANCE OF CANNABIS IN INDIA

If we start tracing the initial point or having said that the customary importance of cannabis in India we can trace various connections of it with Lord Shiva who is worshipped as the Supreme God in the Hindu Religion. Indian festival such has Maha Shivratri has always witnessed consumption of cannabis because it has always been perceived that elixir of life can be purified with cannabis consumption and is also mentioned within the Hindu scriptures. Various initiatives were taken to highlights its benefits scientific and economical benefit but still no changes took place in the existing legislation for the same. In the earlier times, it was legal to consume cannabis in India, but India was pressurized by the United States since year 1961 to introduce a ban upon cannabis production. As a consequence, to such pressure, India finally introduced a Narcotics Drugs and Psychotropic Substances Act which eventually prohibited producing and selling of cannabis flowers and resin. However, the permission regarding usage of leaves and seeds was granted and the states was allowed to regulate the same accordingly.

LEGAL STATUS

The Narcotic Drugs and Psychotropic Substances Act of 1985 provides the definition of cannabis (hemp) as the following and prohibits the same:

Charas: It is a raisin separated in either crude or purified form and obtained through the plant of cannabis. Its oil is known as hashish oil.

Ganja: The fruiting or flowering tops after seeds and leaves are excluded from the cannabis plant.

Any other sort of mixture, inclusive of any form of cannabis mentioned above or any drink prepared individually from such forms or by adding neutralizing material to the same.

Case Law: It is pertinent to note that Narcotic Drugs and Psychotropic Substances Act does not provide any specific definition of “Bhang” which is also a form of cannabis and hence, it is legal to sell and consume bhang in India and is highly consumed in religious cities of northern India. The bhang is sold in government authorized shops and governments keeps a check over sale of bhang as it be used with malicious intention to prepare a new substance which can eventually be potent intoxicant. In Arjun Singh v State of Haryana case, it was held by the High Court of Chandigarh that as far as Narcotic Drugs and Psychotropic Substances Act is concerned, bhang cannot be considered as the cannabis (hemp). However, court also added that it is a product of cannabis plant. It clarified the perception that consuming cannabis leaves is not illegal however, production of cannabis plat is illegal.

PROS OF LEGALISATION OF MARIJUANA

1. Medical science and cannabis share a relationship with each other since ages. In many countries it is prescribed for those patients who are undergoing chemotherapy for cancer treatment. Studies have proved that cannabis is capable of preventing metastasis in the cases of aggressive cancer.

2. Enhanced production will eventually provide newer revenue opportunities for government other than liquor and tobacco. Such, revenue generated can be further utilized for welfare of general public.

3. India is one of the most favourable location for production of cannabis. If the cannabis is legalized, it will lead to higher production of the same which would in turn increase exports of our country India in a huge way.

4. It will be a very big boost to the agricultural sector of India, Since, the cannabis has numerous ways of usage, its demand will be higher and farmers will be having an alternative to produce and gain higher profits.

5. Cannabis has various components which are proved to be effective in curbing mental health issues, it will act as an antidepressant having less side effects than the chemical drugs that are given to patients in today’s time.

6. As a result of statutory prohibitions, trade of cannabis is taking place illegally within the country. If the cannabis is legalized, it will be formally and openly produced and will eventually prevent any sort of illegal trade killing the black market of the same.

CONS OF LEGALISATION OF MARIJUANA

1. The cannabis inhabits an active ingredient known as carcinogens which has a severe impact on the respiratory system. If any individual inhales the smoke of cannabis, he will be exposed to high volume of carcinogens which can be further lead to conditions which can even be life-threatening.

2. Constant consumption of cannabis will eventually develop a drug habit and once that habit is developed, it is not easy to deal with it. Those individuals who have tried to give up such habit have seen various symptoms such as depression, anxiety, fits of rage, headaches and emotional outbursts.

3. Marijuana can obstruct the user’s short-term memory and the ability to perform tasks like studying. Because of its effect on perceptions, marijuana can interrupt various skills such as driving and machine operation. It may also cause hallucinations and affect one’s sexual behavior.

CONCLUSION

It might be a shock to many; but like marijuana, some of the substances that we consume are potentially habit-forming. These include alcohol, tobacco, coffee, and even refined sugar. For some, all of these are part of their daily consumption. Tobacco and alcohol are not safe, after all, and both are already reported to cause many serious conditions including cancer. In some countries, marijuana is an additional option to treatment and has paved way to the right to health of the people. It has been used as the last resort for untreatable conditions. A good demonstration of this is when marijuana was used to stop an American child’s severe seizures. Legalization of Marijuana is not a problem but it’s implementation is definitely one of the concerns in a country like India, also there should be guidelines on medical marijuana treatment, dose, and the route of administration that must also be established. Nonetheless, it is important that we open our minds to the potential benefits of marijuana. May we set aside any political barrier and be open to the possibilities that we could benefit from this disputed plant. If ever it is fully legalized within the country , I hope it won’t be profit-oriented and instead, patient-oriented and research-oriented with proper regulation and taxation.

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Policy & Politics

Attempts at pushing for a ‘green recovery’ with conditionalities will amount to ‘green colonisation’: India

New Delhi opposes attempts from the developed world to prioritise climate change-related issues at the G20 discussions without a consensus within the bloc.

Tarun Nangia

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India, a leader of the developing world, on Friday strongly opposed attempts from developed countries to prioritise climate change-related issues at the G20 discussions without a consensus within the influential bloc comprising 20 major global economies. New Delhi described such attempts pushing for a ‘green recovery’ with stringent conditionalities as one that will amount to a form of ‘green colonisation’ at a time when the developing world was vulnerable on account of the COVID-19 pandemic and was looking at somehow recovering from the aftermath of the global health crisis.

“We do have the Paris agreement (on climate change mitigation) and we need to adhere to that. The great danger of putting it in G20 and that too without a consensus (among G20 members), is actually diluting it. Far from helping the cause, it would instead be a diversion from what was agreed by everybody (in the Paris agreement) and would end up in a parallel track,” said Dr. Sanjeev Sanyal, Principal Economic Advisor, Ministry of Finance, India.

He was speaking at a webinar organised by the think-tank RIS on “Priorities for Growth and Stability in Post-COVID World: Role of G20 Framework Working Group.”

Climate change was a serious issue, but should not be confused with the immediate objective of economic revival post the COVID-19 pandemic outbreak, Sanyal said, adding, however, that some of the revival package could be directed towards meeting the climate change-related concerns. He said the link between climate change and the pandemic was far from established as pandemics happen from time to time whether or not climate change occurs. He added that the response to the pandemic should be science-based and not one filled with rhetorical flourishes. He said India was adhering to its climate change commitments and was willing to do more, adding that New Delhi was uncomfortable with certain efforts to bring climate change issues to the G20 forum as there was no agreement on the same.

Besides, there was an issue about “who decides what is green”, Sanyal said. The issue was important because once a system of rigid ideas (of what is considered as ‘green’) was established for the rating agencies to be then seen as credit-worthy or not, there would be problems on account of mechanical application of that thinking process as seen in debt restructuring, he said. The pro-cyclicality of the ratings process “causes and worsens the shock from a crisis”, he pointed out. “If you do the same thing here (on climate change issues), a rigid system with ‘green-rating agencies’ becoming the equivalent of credit-rating agencies, there is a danger of all kinds of unintended consequences being built into the system, not to mention the high likelihood that such agencies almost certainly will be emanating out of developed countries,” he said. Unless there was a democratic spread of green rating agencies across the w orld, and a ‘green’ framework agreed by all the countries, there is a genuine danger that the world will end up with a form of ‘green colonisation’, Sanyal said.

Speaking on the occasion, Mr. P. Harish, Additional Secretary (Economic Relations), Ministry of External Affairs, India, said India was the only G20 country that has met the Paris climate change agreement commitments. Referring to the move to establish a new goal post outside the Paris framework in the G20 or in some other framework, he said there was a developmental cost to taking on such new commitments outside the Paris framework. There was nothing on the table regarding what all would constitute the USD 100 billion climate finance for developing nations (by 2020 and set a higher annual goal by 2025), and whether every Official Development Assistance would be added to this number, as well as regarding technology transfer commitments, he said. Even if carbon emissions peak at 2050, the net total of emissions of India will be less than that of China, the US and the European Union, he said. “It would not be correct to ignore the historic case load and the developmen tal situation, where India’s per capita GDP is 5% of that of the G7 countries, and a fraction of the overall G20 per capita, and that India’s low per capita energy consumption,” he pointed out. Constraining India’s options at this point through other extra conditionalities will impose a huge financial and developmental cost, Harish said.

Prof. Sachin Chaturvedi, Director General, RIS, chaired the session, while Prof. Kevin Gallagher, Professor of Global Development Policy, Frederick S. Pardee School of Global Studies, Boston University, Mr. Federico Bonaglia, Deputy Director, OECD Development Centre, Paris and Dr. Priyadarshi Dash, Associate Professor, RIS, also spoke on the occasion. (ENDS)

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Policy & Politics

How foreign arbitral awards shape ‘Ease of Doing Business’ landscape in India?

Several reasons have led to India’s poor performance. Our judicial courts, being highly overburdened and inadequately skilled to handle commercial disputes, tend to take 3-4 years in offering a resolution. Further, the frequent relaxation of statutory timelines by courts add to the delay, jeopardising the enforcement of the award/decree.

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The recent spate of arbitral awards by international tribunals against the Indian government underlines the sticky points that remain in the way of the “India means Business” mantra at Davos. These awards come at a time when the government is eager to draw foreign investors to India by making relentless efforts on improving ease of doing business. India consistently improved in the Ease of Doing Business Index, from 142nd in 2014 to 63rd in 2019. However, it performed miserably on ‘enforcement of contracts’ at 163 out of total 190 countries. For instance, Mumbai took 1420 days for enforcing a contract reflecting its dire position.

Several reasons led to this poor performance. The judicial courts, being highly overburdened and inadequately skilled to handle commercial disputes, tend to take 3-4 years in offering a resolution. Further, the frequent relaxation of statutory timelines by courts add to the delay jeopardizing the enforcement of the award/decree. Then comes the biggest irritant: the government and PSUs with their precarious record of honouring contracts.

SOVEREIGN AS A ‘FORMIDABLE’ LITIGATOR

The Government being the single biggest litigator in the country has a dubious record of enforcing contracts with steps such as initiating coercive actions against the opposing party while dispute is still sub-judice and introducing ‘retrospective amendments’ in order to offset any adverse judgement against it avoiding enforcement of award.

The international arbitration awards on legacy tax disputes concerning Vodafone Plc. followed by Cairn Energy UK has once again brought the ghost of ‘retrospective taxation’ often termed then as ‘tax terrorism’ by the ruling party to the limelight, which continues to haunt the business community in India for a decade. The government believes it was deliberately denied tax revenue on capital gains from sale of shares between the parties with transactions structured through tax havens and misuse of Bilateral Investment Treaties (BIT), prompting seizure of share assets and sale proceeds by tax authorities in return. However, the government’s stand was rejected by the Apex court in 2012 after which an amendment in the form of ‘retrospective taxation’ w.e.f. 1963 introduced to circumvent the decision of SC. This step adversely affected the business sentiments and FDI inflows. The retrospective tax amendment was termed by government as standard practice followed globally by established economies. The Permanent Court of Arbitration at Hague upheld the award against the Indian government ordering compensation in both Vodafone and Cairn Energy tax disputes, respectively and held the tax amendment to be unjust and void of terms under BIT. The Government has, recently, challenged the awards in both cases. Cairn has already initiated the process of getting the awards registered in various jurisdictions to ensure enforcement against assets owned by Indian Government.

Another such instance of dishonour of contract is the infamous Antrix Corporation – Devas Multimedia deal in 2005 for lease of ISRO’s two communication satellite for 12 years to provide multimedia services to mobile platforms. However, soon the deal turned sour when then Government, already spooked by 2G scam in 2011, ultimately cancelled the deal alleging conflict of interest and corruption accompanied by several investigations launched against the company. The government lost the case when international tribunal held the annulling of contract with Devas to be an “expropriation” with an award of $1.2B payable to Devas. The mighty Government of India responded by having a ‘winding up’ application filed against Devas before NCLT alleging grave irregularities and fraud.

Recently, the Parliament passed the Arbitration and Conciliation (Amendment) Bill, 2021 originally promulgated as an ordinance, which empowers the courts to grant an ‘unconditional stay’ under Section 36 to the enforcement of an arbitral award if the court is of the prima facie view that such award obtained was induced by ‘fraud’ or ‘corruption’ and was made effective retrospectively w.e.f 2015. This effectively creates a situation where an ‘automatic stay’ might be imposed on enforcement of awards at behest of the losing party alleging fraud, thereby, delaying the process which was not possible earlier. The intention behind bringing in such amendment as indicated by the Law Minister then was the foreign arbitral tribunals rulings in Vodafone tax dispute against the exchequer induced by fraud, adversely affecting the sovereign’s right to tax. The government is of the view that the above award was borne out of dispute concerning an offshore transaction intended to defraud the exchequer and is unfair in spirit. Furthermore, the definition of ‘fraud’ itself has not been provided under this amendment and is open to interpretation inviting further court litigation and additional costs defeating the purpose of alternate dispute resolution.

Tackling the problem

Businesses love certainty in regulations, a stable taxation structure and policy making. The government has assured the investors not to raise legacy tax demands if not revocation of retrospective tax amendment. However, promise of a stable policy regime independent of political factors and sovereign bias might be a challenge.

The solution to this problem is an expensive and surely a painful process. Certain steps like setting up of ‘Commercial Courts’ were carried out through Commercial Courts Act, 2015 but recent study suggests poor implementation by States and respective High Courts where even mandated timelines and processes are being ignored.

However, tremendous improvement can be made by ensuring the quality infrastructure with workforce specialized to handle commercial disputes. Access to quality information by setting utilities.

Efforts are also needed to create general awareness among small businesses about contract negotiation and its enforceability and finding new avenues for out of court settlements. Digitization of legal records and processes can ensure transparency and can also go a long way in ensuring enforcement of contracts. Unconditional acceptance of foreign arbitral awards and adherence to international law by all the stakeholders. The real challenge will be setting accountability which has historically been extremely difficult in the country’s judicial system.

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Policy & Politics

The plight of criminologists: To believe or not to believe women

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India, as we know, is a land of diversity and culture which as per the mythological readings, places a high status on women by considering them as a reincarnation of a Goddess. They are also regarded as a savior of customs, traditions and beliefs which can be evidently seen in the case when a mother passes on moral education and learnings to the next generation. But, are we really abiding and upholding the value system imbibed in us by the scriptures that dictate major portions and events of our lives?

This dog-eat-dog world that we live in, is full of obstacles with a continuum of issues disturbing the peace of everyone and/or disrupting social order (Crowell, 2013). At such a point, discussions pertaining to deviance and crime arise. Society is predominantly known for its ever evolving and adapting nature alongside the passage of time. Owing to this dynamic nature, the values and beliefs held also go through a makeshift change from time to time. When people fail to adapt to these changes, the problem arises. Terms like deviance and crime are often considered to be highly subjective and vary from the viewpoint of one society to another.

Deviance can be explained as any behavior or act that departs from social norms. In other words, that which goes against the values, norms or beliefs held by the society in question; while crime, on the other hand, is any action which violates the law of the land (Siegel, 2006). Both, deviance and crime, to a considerable extent serve as a mirror of the society as it exemplifies the thought processes and frameworks in which that society is constructed (Coomber, Donnermeyer, McElrath, & Scott, 2014).

Every crime constitutes a victim as well as a perpetrator. We are often surrounded by instances where a female victim has been subjected to a ruthless male offender; which is also supported by statistical data records. However, it does not negate the fact that females too can commit crimes. It can be factually seen that serious offences like murder are usually committed by men, whereas minor crimes like substance abuse or cheating can be committed by both men and women, alike. The degree, intensity and extent of violence severely differs in men and women (epg pathshala, n.d.). There are various disciplines which have made a conscious effort to understand female criminality, better, namely: criminology, psychology and sociology among others.

Prominent criminologists namely, Cesare Lombroso and William Ferrero authored, “The Female Offender”, 1895, which gives a deep insight about female criminality, in general. As stated in the book, they suggested that women are more likely to display the characteristics of an occasional criminal (Bhosle, 2009). Lombroso viewed the born female criminal have the criminal qualities of men and the worst ones of women; however, in India, criminality amongst women is attempted to understand as a result of social and economic scarcity as opposed to, certain biological throwbacks (Mili & Cherian, 2015). Freda Adler, in her book, “The Rise of the New Female Criminals”, 1975, attempts to explain the involvement of women in crimes against property by emphasizing on the masculinity behavior of females. The masculinization theory did however, receive criticisms owing to their male-centrism ideology of understanding female criminality (Islam, Banarjee, & Khatun, 2014).

From a psychological perspective, female offenders are known to be devoid of emotional stability and more prone to insecurity, rejection and frustration. Unbearable living conditions, societal pressure, stress, family concerns, financial dependence, social status, etc. may compel women to subdue their inner most feelings and emotions, which may possibly be negatively channelized into unpredictable anger, which in certain cases may result in violence, too (Mili & Cherian, 2015). This can be theoretically backed up by the works of Meda-Chesney Lind in her book, “The Female Offender”, 1986 where she elaborately explains the marginalization theory. This theory states that the victimization or marginality (lower class position; low income; inadequate job; harassment by family) of a woman may provoke her to commit a crime in the modern society (Islam, Banarjee, & Khatun, 2014). Discussing psychological matters in India, is not well looked upon, aggravating the issue further.

Besides, a range of social factors may also influence our understanding of female criminality in India. Some of them being: inequality, poverty, lack of education, gender discrimination, strained relations with spouse or family, denial of basic needs of life or social oppression may also serve as motivating factors (Pattanaik & Mishra, 2001).

The supposed association between poverty and female criminality has been adequately emphasized in certain judicial judgements like: in the case of Shreerangyee v. State of Madras 1972, the accused was a hardworking but unfortunate woman who was deserted by her husband. She had five children and was unable to support them due to lack of adequate earning. Her financial position further worsened when her youngest child was diagnosed with a severe illness and the doctor demanded for money for the treatment. She tried to raise the funds, but in vain. Having exhausted all the legitimate means to earn a living, she, in exasperation, killed all her five children by drowning them and then herself jumped into the well. She was, however, rescued and convicted, under Section 302 IPC for killing her children. The Court in this case also ruled out poverty as an excuse for the murder of innocent children and attempt to suicide (Ghosh, n.d.).

Among the different types of crime committed by women, the one gaining tremendous amount of attention is that of false accusations, i.e. wrongly accusing a person to have committed a crime. If an individual is correctly accused of an offense, it serves them right to face the consequences that follow its path; however the flip side of it lies in cases where a person is falsely accused of a wrongdoing, that results in a huge toll on their reputation, putting them through a severe emotional turmoil and can also negatively impact their personal as well as professional lives.

This could be in the case of dowry, rape, molestation, casting couch, harassment, domestic violence or even cheating. This issue can be considered as an essential one to deal with, by criminologists as such women tend to take undue advantage of the law that strives to protect them, in totality. These nature of events have been noticed in more or less all sectors, be it household, corporate workplace, educational institutions or the media industry. A practical instance in support of the statements mentioned above, is in the form of Section 498A of the Indian Penal Code, 1860. The section was introduced in the year 1983, with special regard to the increasing cruelty (use of verbal and/or physical abuse) towards married women on the hands of the husband and/or his family members and providing them with the requisite legal protection. However, over the years, with rising cases of this section being misused, the Supreme Court observed that it was being used as weapons rather than a shield by disgruntled wives. (Ray, 2018).

There are a number of cases that have circulated like wild fire featuring women who have falsely accused men on many grounds. One such case being that of Nisha Sharma and Munish Dalal in May, 2003 in Noida. Nisha had accused her to-be-groom and his family of demanding a sum of Rs. 12 lakh as dowry and a car; post which, Munish, his mother and paternal aunt were arrested, on the grounds of dowry harassment. They were unfortunately made to visit the Court for hearings, nearly 320 times and after a 10 year long ordeal, were finally acquitted from the false allegations made by the complainant (Vashishtha, 2012).

Such cases do being along with them a series of problems for the wrongly accused member or members of a family: loss of existing job, difficulty in finding a new one, immense stigma and labels attached, loss of respect within the community, psychological concerns: loss of appetite, insomnia, anxiety, depression, and in extreme cases also end their lives in the aftermath of these baseless accusations. The excessive misuse of the anti-dowry law to threaten the groom and his family, has compelled the Supreme Court to term such conduct as “legal terrorism”.

As of August 23, 2015, Jasleen Kaur, a student of St. Stephen’s College, New Delhi, accused a man, Sarvjeet Singh, for passing lewd comments and molesting her, while she was volunteering to control the traffic at a nearby signal. The former’s post on her Facebook handle, caused a lot of stir resulting in the arrest of Singh. Within no time, Kaur became popular and was praised by both the common masses as well as those in authority, for her courageous stand. Soon, the tables turned and on questioning, an eyewitness validated Sarvjeet’s innocence and testified against Jasleen for misbehaving and abusing the man (Surendran, 2016).

An infamous case that sadly did not reach the masses was that of a 22 year old Aman Baisla, based in Delhi, in October 2020. He committed suicide, as he was threatened with false allegation of rape. He posted a live video on Facebook and Instagram to explain how a girl had taken about 12.5 lakhs and when he asked to return, she threatened him of false rape charges and asked for more money instead. This shocking incident caused outrage among the public, however, no media aired this on any news channels.

As a criminologist, it is significant to consider all prospects and more importantly, acknowledge the contribution of social media in shaping society’s perception about a case. The most recent example being that on March 9, 2021 of the Zomato delivery man, named Kamaraj and a girl, named Hitesha Chandranee, who is a Bengaluru-based content creator and model.

Please read concluding on thedailyguardian.com

She resorted to Instagram and posted a video accusing the delivery in-charge of physical assault, insult and criminal intimidation. In a series of investigation, it was concluded she had falsely accused Kamaraj and an FIR was filed against her, under Section 355, 504 and 506 of the IPC (Jagran News Desk, 2021).

The media landscape, be it in the form of print, audio-visual, or even digital for that matter, is in a state of constant flux. Media is often regarded as the fourth pillar of democracy and can play a significant role in creating awareness of the laws and the consequences of filing fake cases against the innocent who is accused. They can considerably help in combating this menace by bringing to light, the cases of people involved in such acts, improve literacy among the masses, in this specific arena and in turn, open space for a stream like investigative journalism, to flourish, as well.

All in all, tackling cases of false accusations is undoubtedly the need of the hour which can be substantiated by the rising number of cases in India. This increasing hazard, which can harm society’s fabric and abuse of law for different purposes, needs to be regulated early. It becomes highly crucial to identify, rectify and moreover, spread awareness about this matter so as to not punish an innocent person. The idea that policy recommendations may be focused on inaccurate data does also present a challenge, since such data could contribute to needless or mistaken criminal justice changes (Rawat Rani & Maharshi, 2020). It is high time that we tackle this issue effectively, because in the course of these false claims, the genuine victims may have a hard time trying to seek justice.

References:

Bhosle, S. (2009). Female Crime in India and Theoretical Perspectives of Crime. Kalpaz Publications. Retrieved March 2021, from https://www.google.co.in/books/edition/Female_Crime_in_India_and_Theoretical_Pe/v22H2izsiHUC?hl=en&gbpv=0

Coomber, R., Donnermeyer, J. F., McElrath, K., & Scott, J. (2014). Key Concepts in Crime and Society. SAGE Publications. Retrieved March 2021, from https://www.google.co.in/books/edition/Key_Concepts_in_Crime_and_Society/6JXgBQAAQBAJ?hl=en&gbpv=1&dq=key+concepts+in+crime+and+society&printsec=frontcover

Crowell, E. L. (2013, March). Sociological Theories of Deviance: Definitions and Theoretical Perspectives. Retrieved March 2021, from www.study.com: https://study.com/academy/lesson/sociological-theories-of-deviance-definitions-and-theoretical-perspectives.html

epg pathshala. (n.d.). Gender related crime. Retrieved March 2021, from www.epgp.inflibnet.ac.in: https://epgp.inflibnet.ac.in/Home/ViewSubject?catid=1608

Ghosh, P. (n.d.). Essay on ‘Criticism of Konger’s Theory’. Retrieved March 2021, from www.shareyouressays.com: https://www.shareyouressays.com/essays/essay-on-criticism-of-kongers-theory-1816-words/121488

Jagran News Desk. (2021, March). Zomato delivery boy Kamaraj files case against Hitesha Chandranee for false accusation. Retrieved March 2021, from www.english.jagran.com: https://english.jagran.com/india/zomato-delivery-boy-kamaraj-files-case-against-bengaluru-woman-hitesha-chandranee-for-false-accusation-10024516#:~:text=The%20alleged%20incident%20happened%20on,punching%20her%20on%20the%20nose.

Mili, P., & Cherian, N. S. (2015). Female Criminality in India: Prevalence, Causes and Preventive Measures. International Journal of Criminal Justice Sciences, 12. Retrieved March 2021, from https://www.sascv.org/ijcjs/pdfs/milietalijcjs2015vol10issue1.pdf

Pattanaik, J. K., & Mishra, N. N. (2001, September). Social Change and Female Criminality in India. Retrieved March 2021, from www.researchgate.net: https://www.researchgate.net/publication/258185546_Social_change_and_female_criminality_in_India

Rawat Rani, A., & Maharshi, D. A. (2020). A Study on Rising Amount of Fake Rape Cases in India. PalArch’s Journal of Archaeology of Egypt/ Egyptology. Retrieved March 2021, from https://www.archives.palarch.nl/index.php/jae/article/download/5923/5893

Siegel, L. J. (2006). Criminology- Theories, Patterns and Typologies (Ninth ed.). Thomson Wadsworth. Retrieved from https://books.google.co.in/books?id=umgEFec4U4YC&pg=PR1&dq=criminology+by+larry+j+siegel+ninth+edition&hl=en&sa=X&ved=0ahUKEwjNjcX-hLTpAhXVxzgGHY4tCPMQ6AEIMDAB#v=onepage&q=criminology%20by%20larry%20j%20siegel%20ninth%20edition&f=false

Islam, M. J., Banarjee, S., & Khatun, N. (2014). Theories of Female Criminality: A Criminological Analysis. International Journal of Criminology and Sociological Theory. Retrieved March 2021, from https://www.researchgate.net/publication/334113027_Theories_of_Female_Criminality_A_criminological_analysis

Ray, K. A. (2018, October). Section 498A Of IPC: A Weapon Or A Shield? – Supreme Court Of India. Retrieved April 2021, from www.mondaq.com: https://www.mondaq.com/india/crime/743068/section-498a-of-ipc-a-weapon-or-a-shield-supreme-court-of-india

Surendran, V. (2016, November). Remember Jasleen Kaur case? Accused Sarvjeet Singh talks about how false complaints ruin men’s lives in India. Retrieved April 2021, from www.indiatoday.in: https://www.indiatoday.in/fyi/story/jasleen-kaur-sarvjeet-singh-kundan-srivastava-false-accusation-354200-2016-11-27

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