With the outbreak of the Covid-19 pandemic and the consequential worldwide commercial disruption, and with almost all businesses suffering severe losses, it is more important than ever that disputes get resolved in a timely and efficient way. While the Covid-19 pandemic and the lockdown imposed in India has, on the one hand, seriously impacted a wide range of businesses, it has also simultaneously thrown up a number of commercial disputes ranging from delays in performance and termination of contracts in the construction industry and shipping industry to landlord-tenant disputes.
With the probable surge in potential disputes and the reduced capacity at which the judicial system has been compelled to function due to the potential health hazards which may result from a full scale opening of the normal functioning of Courts, the current situation has set the stage for alternative methods of dispute resolution to become the preferred mode of settling commercial disputes. In the view of the authors, in the present situation of crisis, which will perhaps last the rest of the year, and the commercial repercussions of which may of course continue for much longer, one of the most efficient and cost effective ways to resolve a dispute would be through mediation. It has once been said that an ounce of mediation is worth a pound of arbitration and a ton of litigation – this is more true today than ever before.
MEDIATION AND ITS BENEFITS
Mediation as a means of dispute resolution may not have been embraced in India as much as it probably deserved. While it is often resorted to at the suggestion of the Courts in the context of matrimonial and family disputes, it is not the first resort for commercial disputes which are still resolved either by traditional court litigation or now increasingly through arbitration.
However, the inherent flexibility of the mediation process provides significant advantages over traditional court centric litigation. First, in the mediation process, parties have much greater control over the terms on which a dispute is settled. While in a successful mediation neither party would enjoy a complete victory, which may have been the result of a litigation or arbitration, mediation allows parties to reach a half-way house which can often work to preserve the relationship between parties in the long run. Secondly, it substantially reduces the costs one would incur if a dispute were to be resolved through the Courts or through arbitration, both of which provide multi-layered avenues of appeal or review. Thirdly, it substantially reduces the delay which results from resolving disputes through Courts or even in arbitration. This itself often allows parties to preserve their relationships as long drawn stressful Court battles result in growing bitterness between parties, both in familial and commercial relationships. Fourthly, parties can arrive at workable solutions free from legal technicalities which may work to the advantage of both parties. Often the traditional Court process impedes the possibility of this as an out-of-the-box solution cannot be reached unless parties sit across the table. Fifthly, the presence of a well-trained mediator is key to help parties temper expectations and can help to diffuse tensions. In this regard, Mediation is more effective than simplicitor settlement talks between parties and their legal counsel, as legal counsel are, by the nature of their profession and training, often tempted to adopt an adversarial style even in negotiations. The presence of a neutral mediator can often provide a mature and well balanced perspective and help narrow the dispute into a zone of possible agreement. These are only some of the many advantages of the mediation process.
With the growth of the mediation movement in India and an increasing understanding and acceptance of the benefits of mediation, the Hon’ble Supreme Court had in March 2019 suggested that the Government consider the feasibility of enacting the ‘Indian Mediation Act’ to take care of various aspects of mediation. (M.R. Krishna Murthi v. New India Assurance Co. Ltd. 2019 SCC OnLine SC 315)
PRE-INSTITUTION MEDIATION UNDER THE COMMERCIAL COURTS ACT, 2015
While the ‘Indian Mediation Act’ as recommended by the Hon’ble Supreme Court has not yet been enacted and most mediations are initiated by a Court directive under Section 89 of the Code of Civil Procedure, 1908, it is important to note that a concrete step to extend the benefits of mediation to commercial disputes was taken with the 2018 Amendment to the Commercial Courts, Commercial Division, Commercial Appellate Division of High Courts Act, 2015, (“Commercial Courts Act”), a legislation enacted with the objective of achieving the speedy adjudication of commercial disputes.
Section 12A of the Commercial Courts Act (inserted in 2018), provides that suits, which do not contemplate any urgent relief under the Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with the manner and procedure as may be prescribed by the rules made by the Central Government in this regard. It further provides that the Central Government may authorise authorities constituted under the Legal Services Authorities Act, 1987 to conduct such pre-institution mediation. Such mediation is to be completed within three months, which may be extended by a further period of two months with the consent of the parties. Pertinently, the period for which the parties remain occupied with pre-institution mediation is not computed for the purpose of limitation. If parties to a commercial dispute, arrive at a settlement, it will be reduced to writing and signed by the parties and the mediator. A settlement so arrived at under these provisions of law has the same status and effect as an arbitral award on agreed terms under Section 30(4) of the Arbitration and Conciliation Act, 1996.
The Commercial Courts (Pre Institution Mediation and Settlement) Rules, 2018 framed under the Act, set out the procedure for the conduct of such pre-institution mediation of commercial disputes and make provisions for flexibility as well as confidentiality. During the course of mediation proceedings, the mediator may hold meetings separately or jointly with the parties to the dispute as he/she thinks fit. The parties can share settlement proposals with the mediator in separate sittings with specific instructions as to which parts of such proposals may be shared with the opposite party. They can exchange settlement proposals with each other either orally or in writing. (Rule 7) The mediator, the parties and their authorized representatives or counsel are bound to maintain confidentiality with respect to the mediation and the mediator is not to allow the stenographic, audio or video recording of the mediation sittings. (Rule 9) Before commencing the mediation, the parties are to pay a one-time mediation fee, to be shared equally, which is specified as per the quantum of the claim.
THE ADDED ADVANTAGES OF MEDIATION IN THE TIME OF COVID–19
With the pandemic in which we find ourselves today, with the Courts being compelled to function at a reduced capacity, social interactions and commercial transactions being forced to take place remotely and commercial enterprises facing a financial crunch, the authors believe that today resorting to mediation is a practical and cost effective mechanism to resolve disputes. In fact, as far as fresh commercial disputes are concerned, the present period of crisis can be utilized to complete the leg of pre-institution mediation envisaged under the Commercial Courts Act. Thus, even if the dispute cannot be effectively resolved through mediation, completing this leg in the present period, during which the Courts are in any case functioning at a reduced capacity, would save the valuable time for both parties.
Mediation primarily relies on reconciling disputes through persuasion and discussions and avoids a heavy reliance on voluminous briefs and deliberations on fine points of law. Being the least cumbersome and technical of the various methods of dispute resolution, mediation lends itself well to being conducted online with the use of technology rather than in person. Many mediation centres (such as the Mediation Centre of the Hon’ble High Court of Delhi ‘Samadhan’) have, for quite some time now, been making use of technology in conduct of mediation. The present pandemic has only made the need for the use of such technology even more indispensable.
Today, even mediation institutions which have not embraced online platforms must take this opportunity to do so. The authors believe that amidst the chaos in which we find ourselves, an open minded approach to the more unconventional methods of dispute resolution would certainly benefit any party which finds itself on the brink of a dispute. Today, to handle differences practically and find creative solutions is the need of the hour which would not only save time and money in the long run but, as a happy byproduct, may also reduce the mental stress of parties, certainly a change which is not unwelcome in present scenario.
The authors are Advocates of Karanjawala & Co. practicing in the Hon’ble Supreme Court of India and the Hon’ble High Court of Delhi. Ms. Nandini Gore is a Senior Partner, an Advocate on Record and a Mediator, Supreme Court of India. Ms. Tahira Karanjawala is a Principal Associate and an Advocate-on-Record. Mr. Arjun Sharma is a Senior Associate with the firm.
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Permitting use of illegally intercepted conversations in court would violate citizens’ fundamental rights: Delhi HC
While according the highest priority to the fundamental rights of the citizens, the Delhi High Court has in an extremely commendable, cogent, courageous, composed and convincing judgment titled Jatinder Pal Singh vs Central Bureau of Investigation in CRL. M.C. 3118/2012 that was pronounced finally on January 17, 2022 has observed that if illegally intercepted messages or audio conversations pursuant to an order having no sanction of law are permitted, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens. We thus see that the single Judge Bench of Justice Chandra Dhari Singh of the Delhi High Court thus set aside the two orders that were passed by the Special Judge which had framed charges against one Jatinder Pal Singh in 2012 in a case registered by CBI on the basis of evidence gathered through such illegal means. It ought to be mentioned that the case alleged that there was a criminal conspiracy with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012. It also deserves mentioning that the controversy had arisen out of an alleged bribery for allowing the admissions by bypassing the deficiencies in the process and the petitioner was accused of having acted as a middleman in the alleged bribery.
To start with, it is first and foremost stated in para 1 of this judgment that, “The Petitioner has approached this Court by way of the instant petition under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as “Code”) for setting aside the order of the Court below dated 1 st June 2012, whereby common charges had been framed against the accused including Jatinder Pal Singh (hereinafter referred to as “Petitioner”) and the consequential order dated 4 th June 2012 framing individual charges against the Petitioner in the case titled as “CBI v. Ketan Desai and Others” pending before Special Judge CBI-5, Patiala House Courts, New Delhi.”
To put things in perspective, the Bench then envisages in para 2 that, “Before adverting to the submissions made by the learned counsels for parties, it is essential to highlight the factual background of the instant matter which is stated hereunder:
i) The impugned proceedings have arisen from the First Information Report registered by the CBI vide Case bearing No. RC 02(A)/2010/CBI/ACU-IX/New Delhi on 22nd April 2010, under Sections 7/8/11/13(2) read with Section 13(l)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as “PC Act”) and Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), on the allegations that Dr. Ketan Desai, President of the erstwhile Medical Council of India (hereinafter referred to as “MCI”), entered into a criminal conspiracy with the Petitioner, Dr. Sukhvinder Singh and others with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala (hereinafter referred to as the “GSMCH”) as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012.
ii) The prosecution’s version is that on the basis of reliable and specific information, CBI Special Unit, New Delhi had placed the mobile phones under telephonic surveillance during the period when MCI received the application for renewal of permission from GSMCH, Patiala for admission into 4th Batch of the MBBS course. The investigation further revealed that criminal conspiracy to obtain favors in the form of recommendation for permission for admission into fourth year batch for MBBS course began after deficiencies were pointed out during first inspection of GSMCH, Patiala. Accordingly, the aforementioned FIR was registered against the accused persons on the allegations as aforesaid.
iii) Subsequently, on 22nd April 2010 recovery was made wherein Dr. Kamaljeet Singh was intercepted while allegedly delivering a sum of Rs. 2 crores, as illegal gratification for the aforementioned purpose, at the residence of the Petitioner by the income tax authorities and liquor bottles were seized by the police authorities.
iv) Upon the completion of the investigation, the Final Report under Section 173 of the Code was filed on 16th September 2011 under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120-B of the IPC in the Court of Special Judge for CBI Cases, Patiala House Courts, New Delhi.
v) Trial Court took cognizance of the same on 10th October 2011. The copies of the documents relied upon were supplied to the accused persons including the Petitioner. After hearing the arguments on charge, the Trial Court on 1st June 2012 passed a common order on charge under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120B of the IPC as well as an individual order on charge on 4th June 2012 against the petitioner under Section 12 of the PC Act.
vi) Aggrieved by the aforementioned orders, the Petitioner has approached this Court, under Sections 397/401 read with Section 482 of the Code, praying for setting aside the impugned orders.”
Quite significantly, the Bench mentions in para 74 that, “The entire controversy has arisen out of an alleged bribery made for allowing the admissions into the 4th Batch of MBBS of the GSMCH, Patiala by bypassing the alleged deficiencies in the process. The Petitioner is accused of having acted as a middleman in the alleged bribery. However, no direct or indirect evidence implicating the petitioner is available on record that can be legally relied on to proceed with the matter. The evidence collected and produced by the investigation agency before the Court below is fraught with illegalities and no sufficient cause is made to proceed with the case qua the petitioner for the reasons as detailed hereunder:
i) The main basis of the matter for which the bribe was allegedly given i.e., the auditorium was not actually required to be constructed as a condition precedent for conducting admissions of the 4th batch of MBBS course. The factum has been verified by the appropriate authorities at various stages as stated above, hence there is no rationale of committing the alleged offence of giving of bribe.
ii) Further, the Approver on the basis of whose statement petitioner has been made an accused, was impleaded in the case without sanction from the appropriate authorities and his statement is thus inadmissible.
iii) Nothing as alleged in the recorded conversation intercepted by the investigating agency forms direct basis or has any connection whatsoever with the need for bribery, nor is there any rationale for offering of the alleged bribe. The recovery made has also been explained and accounted for by the Petitioner with evidence as being a part of the advance received by the Petitioner in lieu of sale of his village land.
iv) Tape records of the calls intercepted in the instant case are not admissible since the due procedure for such interception as mandated by the Telegraph Act and the Rules framed thereunder has not been followed. Further, even the same has not been verified in the FSL report. No further witness/evidence to implicate the petitioner is on record.
v) Additionally, the public servant who is alleged to have been involved in the said transaction has already been discharged and cannot, therefore, be prosecuted under the PC Act.
Thus, in an offence alleging conspiracy, where the main conspirator has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since.”
No less significant is what is stated in para 76(a) and in short it must be stated here that, “The most relevant piece of evidence relied upon by the prosecution, i.e., the copy of the voice-recording of the telephonic conversation allegedly involving the petitioner, is not even admissible in light of the judgment of the Hon’ble Supreme Court in the case of Anvar P.V. (Supra), the same ratio was followed by this Court in its judgment dated 20th November, 2014 in Ankur Chawla v. CBI, Crl. M. C. No. 2455/2012.”
Shortly stated, it is then encapsulated in para 77 that, “Even otherwise, the prosecution has till date not advanced anything qua the genuineness of the voice recording involving the petitioner. In the absence of a forensic analysis and report (or for that matter, any other certifying instrument) pertaining to the authenticity of the voice recording in question, it is not unreasonable to conclude that the prosecution’s case at trial would be materially impacted. In the case of Nilesh Dinkar Paradkar v. State of Maharashtra, 2011 (4) SCC 143, the Hon’ble Supreme Court has held as follows: ―
31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.”
Most significantly, the gist of para 78 that must be mentioned here is this: “Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon’ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which similarly dealt with accused who had acted as middlemen.”
Adding more to it, the Bench then enunciates in para 80 that, “Lastly, the charge-sheet against the petitioner is underpinned by the allegation of abetment under Section 12 of the PC Act without there being any admissible evidence of the demand or offer of bribe. Needless to state, such a trial would be an exercise in futility, more so because there are judicial precedents to the effect that a demand of illegal gratification is imperative for punishment (for abetment as an offence) under Section 12 of the PC Act. In fact, the judgment of the Hon’ble Supreme Court in State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153, which reads as under, is applicable here: ―
11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.
The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , T. Subramanian v. State of T.N. [( 2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 :(2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136].).”
As a corollary, the Bench then hastens to add in para 81 that, “Therefore, in light of the facts of the case along with the material on record, and since there is no substance in the accusation levelled nor any admissible evidence is on record incriminating the petitioner, the petitioner is entitled to relief under Section 482 of the Code.”
Going ahead, the Bench then holds in para 82 that, “In view of these facts and circumstances, as well as the provisions of law, their application to the case at hand and the analysis made, this Court is inclined to allow the instant petition.”
Furthermore, the Bench then also holds in para 83 that, “For the reasons recorded above, this Court allows the instant petition as prayed for. The impugned orders dated 1st June 2012 and 4th June 2012 passed by Learned Special Judge, (CBI-05), New Delhi whereby charges have been framed qua the Petitioner, are hereby set aside.”
Going forward, the Bench then held in para 84 that, “Accordingly, the petition and pending applications stand disposed of.”
Finally, the Bench then concludes by directing in para 85 that, “The judgment be uploaded on the website forthwith.”
In essence, the key takeaway from this most noteworthy judgment by the Delhi High Court is that permitting use of illegally intercepted conversations in courts would violate citizen’s fundamental rights.
So, it can be logically deduced from this that the use of illegally intercepted conversations in courts cannot be permitted. No denying it.
Cyber world: Advantages and its emerging threats
In this modern era of globalization whole world gets connected through digitalization. Growing global economy and Innovation in Science and Technology lead to promote digitalization in our daily life. According to data of the Department of Promotion of Industry and Internal Trade states that approximately 50,000 Startups grow up in India every fiscal year. Every start-up has a base of Innovation and Technology. The companies and Commerce industry promotes digitalization in businesses because of its leads to optimum use of resources and less time and energy consumption. In this modern era, any sector of businesses cannot survive in a competitive world without their business website of them. Our education system transferred into digital space amid the Covid-19 Pandemic. Online Classes and online learning take place of Traditional Teaching techniques of the education system. Digitalization of the education system leads to increase efficiency in the learning process and decreases the cost of seeking education which may benefit the weaker section of society.
Cyber Security is becoming an important concern in every country of the world. In this era of globalization without strong cyber security, we cannot survive in global competition. Every nation of this world put forward its steps to make a strong Nation because of cyber security. Making Cyber Attacks on high-profile agencies of the enemy nation such tactics usually used by the dominant nation for making pressure on the Enemy nation by stealing highly sensitive data of this nation. The cyber cold war is an emerging threat to the world. We are required to come forward together to make Treaty on Cyber Security Issues. We are required to make a Universal Code of Conduct for Cyber Security Issues which will be followed by every united nation. For example, like United Nations made Treaty for International Peace between Nations by restraining them to make Arms in high capacity and restraining them to promote Nuclear Programme in high frequency.
CONTEMPORARY ISSUES OF CYBER WORLD
THREAT TO PRIVACY:
The government of India consistently decides the involvement of technology in public policies. The government has passed Aadhaar Act in the year 2016 which was made mandatory for every citizen of India to link his Aadhaar Card to other Important Identity documents. Government makes Aadhar Card as a Proof of Identity for every citizen of India. Making it mandatory for every citizen of India to link his Aadhaar Card to Pan Card may cause losing personal data by government machinery. The government of India may use these data for undue advantage of them. In many incidents, Leakage and stealing of data happens which may affect on the privacy of citizens of India. Right to Privacy is a Fundamental Right of Citizen of India which is enshrined in Article 21 of the constitution of India which is violated by government authorities. In the landmark Case of K.S. Puttaswamy versus Union of India (10 AIR SCC 2017) the honourable Supreme Court of India states that the Right to Privacy is an essential fundamental right of every citizen of India.
CYBER FRAUDS AND SIDE EFFECTS OF DIGITALISATION
Cyber Security is an important concern emerging in our society. Many fraud companies conceal the data of customers by using tactics of misleading Advertisements. Digitization has a proven impact on reducing unemployment, improving quality of life, and boosting citizens’ access to public services but its side effects are data theft of customers, Breaching of Copyright of Companies, Plagiarism in social media websites, Social disconnectivity.
According to data from the National, Crime Records Bureau states that 50,030 cybercrime cases were reported in the year 2020-21 in India. Cyber Fraud is the key motive and intent in 30,218 cases recorded in frauds. In India, more than 2200 cyber-attacks are committed per day, whereas cyber security is the biggest concern that emerges in society.
Increases in the number of cyber-attacks result in government increased budget and attention on cyber security. The First Cyber Attack occurred in the late 1970s but over time nature of cyber-attack changed. Phishing, data breach, cyber extortion, Identity Theft, Harassment are types of Cyber Crimes. Increasing digitalization leads to excessive use of Technology which may affect on Mental Health of People. The development of the Mind is depending on the growth of Mental Health which might be diminished due to excessive use of technology, social media by Youngsters and Adults.
CYBER WAR AND TERRORISM
In the era of digitalization, we are going to become Technology Savy but the increasing number of International Cyber Attacks cause cyberwar between two nations which is harmful to International Peace. Cyber War and Cyber Terrorism are both terms interlinked with each other. Cyber Terrorism A criminal act perpetrated by using computers and Telecommunication Capabilities resulting in violence and destruction and disruption of the Services of an enemy nation by creating fear within the Population.
The government made provision in the Information Technology Act, 2000 under Section 66 F about committing the offense of Cyber Terrorism will be Punishable by Imprisonment to Life. A recent example of cyber terrorism is Pegasus Spyware which deals with collecting personal data of High-Profile Personalities, Politicians, Supreme and High Court Judges, Military Personnel of India. Perpetrators Intention behind that is tracing personal chats and other sensitive Information of that Personalities. They used such Information for Undue Advantages.
E-GOVERNANCE AND INCLUSIVENESS OF PUBLIC
E-Governance is Important for maintaining Transparency and Accountancy in Government. Politicians are Representatives of Common People and Public Servants are the strongest pillars of Administration. They are Responsible for Citizens of India because they are elected by the Peoples of India. Promoting digitalization in government policies and Promoting E-Governance in Administration will be effected on Accountability of Government.
E-Governance gives access to common people to encourage them to participate in the decision-making process. Common People can raise questions regarding the incompetency of government. The public can access grievance redressal machinery to resolve issues that arise due to the Incompetency of the government. Inclusiveness of the Public leads to strengthening democracy in Nation.
EASE OF DOING AND PROMOTE INNOVATION
Increasing use of Technology and Internet businesses leads to ease of doing for Promoters. Process of Registration of Companies to promoting businesses on the Internet all these things are included in Ease of doing of businesses. Every Startup Included Innovation and Technology hence cyber security concerns arise for such businesses. Many times, businesses are suffered due to poor cyber security which may affect on businesses of them. Examples like the stealing of sensitive data of the Company.
LEGISLATIVE FRAMEWORK OF CYBER LAWS AND INTELLECTUAL PROPERTY ISSUES
We have come across instances of data theft, phishing, and Cyberbullying, Cyber Terrorism, etc. but Remedies are available against such instances in the legislative framework of Cyber Laws. Some short overviews of those laws are given below.
Sec. 65 of the IT Act, 2000 pertains to Tampering with computer source documents, whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer program, or computer system which are required to be maintained or kept by law. For the time being in force shall be punished with Imprisonment up to Three Years or with a fine which may extend up to two lakh rupees, or with both.
SEC. 66 COMPUTER RELATED OFFENCES
If any person dishonestly or fraudulently, does any act such as accessing or securing access to a computer, computer system, computer network he shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to five lakhs rupees or with both.
SEC. 66 C PUNISHMENT FOR IDENTITY THEFT
Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique Identification Feature of any person shall be punished with imprisonment of either for a term which may extend to Three Years and shall also be liable to fine which may extend to Rupees One lakh.
SEC. 66 D PUNISHMENT FOR CHEATING BY PERSONATION
Any Person or entity creates any phishing websites, Fake Identity on the Internet for intent to steal sensitive data by deceiving any person, which act may cause to damage or harm to that person in body, Mind, Reputation or Property, is said to “Cheat” Such offense will be punishable with imprisonment of either description for a term which may extend to Three Years and shall also be liable to fine which may extend to one lakh rupees.
SEC. 66 E PUNISHMENT FOR VIOLATION OF PRIVACY
Whoever, intentionally or knowingly captures, publishes, or Transmits the Image of a Private Area of any Person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to Three Years or with fine not exceeding two lakh rupees or with both.
Sec. 66 F Cyber Terrorism
Whoever with intent to threaten the unity, integrity, and security or sovereignty of Nation and attempting to penetrate or access a computer resource without authorization shall be punishable with Imprisonment of life.
Section 420 of the Indian Penal Code, 1860 states that cheating by personation or inducing to deliver any property shall be punishable with imprisonment for a term of three years which may extend to seven years, and a fine.
INTELLECTUAL PROPERTY ISSUES
According to section 14 of the Copyright Act, “Copyright means exclusive Right to do authorize
To Reproduce a computer program in any material form including the storing of it in any medium by electronic means. But In many Instances, problems relating to the Infringement of Copyright and Trade Marks arise in cases where cybersecurity-related issues take place.
E-COMMERCE AND DIGITAL MONEY
E-Commerce means buying and selling goods or things over the Internet. Many instances arise where data theft, fraud profiles actively work on the Internet and social media to induce people to buy a specific type of thing at a very cheap price.
Please read concluding on thedailyguardian.com
They promote such things on the Internet very systematically to take undue advantage of Buyers. We are required to take action against this fraudulent act done by fraudsters at the time such concerns arise.
Cybersquatting: A plague upon the corporate identity
The advent of internet era has witnessed a huge surge in profits of various e-commerce and has shoved every potential business to adopt the online mode. The domain name which is an online website locator or the address of a specific entity on the internet links the company to its prospective customers and eases the process of doing business. The Internet Domain Name System (DNA), was designed from the perspective of identifying such websites by their domain names. However, the arena of internet is not bereft of manipulation. With practices of phishing, spam, impersonation, malware, counterfeits, etc gaining prominence, cybersquatting is paving its way as well. It is the practice were an individual or a business registers a domain name, identical or deceptively similar to the trademark or the domain name of other prominent business in order to gain potential customers of such business or to either sell it to them at a cost higher than that of registration, in case such prominent business has not priorly registered their domain name.
CYBERSQUATTING: A PRODUCT OF DOMAIN NAME REGISTRATION
Cybersquatting could be considered the most prominent forms of utilising the existing loopholes in law, which in this case would be the domain name registration i.e., registration on the basis of ‘first come first serve’. Since there is no pre-requisite condition as to the validity of domain name and no absolute or relative ground of refusing registration, the registrar has no other option but to register even those domain names which are product of cybersquatting. As businesses have inferred the gravity of internet, so have the cybersquatters, who are constantly posing challenges to multi-national companies, diverting their customers as well as profit.
The Covid-19 pandemic fuelled the practice of cybersquatting. As businesses were getting accustomed to the online mode, cybersquatters had already played their part. WIPO alone handled cases with an increment of 11% in 2020 in comparison to 2019 showing the spike during the pandemic.
It is crucial to understand that now domain name is not restricted solely for the purpose of identifying websites but has become a corporate asset, in importance, equal to that of a trademark. In India, since there is no legislation that explicitly prohibits cybersquatting or settles domain disputes, the role of judiciary is imperative.
The complainant can either accept the selling price of the domain name as quoted by the cybersquatter or can file for litigation or for dispute resolution under UDRP.
REMEDIES AVAILABLE IN INDIA LITIGATION
The complainant party can directly approach the court for settling the dispute. Applying the Trademarks Act 1999, the two available reliefs are: remedy of infringement, granted when the trademark is registered and the remedy of passing off, granted when the registration is not pre-requisite to avail such relief.
Indian judiciary has pronounced some landmark judgements upon cybersquatting. For instance, Yahoo Inc. v Akash Arora & Anr., where trans-border reputation was given priority even though Yahoo Inc. was not a registered trademark in India nor had its business running in India. Further, in Titan Industries Ltd v Prashanth Koorapati & Others, the Delhi High Court granted ad-interim injunction restraining the domain name holder from using the trade name “Tanishq” or any other name which is deceptively similar. Thereby, remarking upon the prospective aim of deceiving the customers of the plaintiff company.
2.2.2 DISPUTE RESOLUTION
To solve the conflict between trademark and domain name, Internet Corporation for Assigned Names and Number (ICANN), developed UDRP- Uniform Domain Name Dispute Resolution Policy in August 26, 1999. A complainant party can initiate the process by filing a complaint before the approved dispute resolution service providers listed by ICANN on the grounds that: the domain name is “identical or confusingly similar to a trade mark or service mark” of the complainant; registrant has no right or legitimate interest in respect of the domain name; and it is been registered and used in bad faith. For availing the remedy under UDRP, it is to be established that the domain name was used and registered in bad faith.
There are six ICANN approved dispute resolution service providers: Arab Center for Domain Name Dispute Resolution (ACDR), Asian Domain Name Dispute Resolution Centre, Canadian International Internet Dispute Resolution Centre (CIIDRC), The Czech Arbitrati0n Court Arbitration Center for Internet Disputes, National Arbitration F0rum and lastly, WIPO.
Amongst all, WIPO is the leading dispute service provider. WIPO following UDRP guidelines sets up a neutral panel of qualified people for resolving disputes within two months. The speedy resolution is why UDRP could be the future of dispute resolution, particularly for multi-national companies. There could only be three possible decision which could be granted by the panel: decision in favour of complainant party and transferring of the domain name to them; decision in favour of complainant party and cancelling the domain name; lastly, decision in favour of domain name registrant, specifying whether the dispute did not fell under the ambit of rule 4 (a) of UDPR policy and also to specify whether the complaint was filed in bad faith. However, there are no monetary damages granted in UDPR domain name disputes nor any injunctive relief is granted.
Various country code domain name registries also have started to adopt the UDRP or similar policies. As an exemplar, India has its own registry by the name ‘INRegistry’ under the authority of National Internet Exchange of India (NIXI). Its sets forth terms and conditions governing the ‘.in’ or ‘. Bharat’ domain name.
In contemporary times, corporate identity has not remained independent of domain name. Priorly domain name was used as a locator of websites, it has now been valued beyond that and has become a corporate asset which demands protection and instances of cybersquatting to be curbed. Apart from posing constant challenges to commercial businesses, cybersquatting damages their goodwill and forces their owners to resolve such issues in a limited time period.
Comparing the remedies accessible, it is believed that UDRP will gain prominence over judicial intervention in near future, reasons being speedy dispute resolution, low cost and no court appearances. However, UDRP should be applied to other types of domain name as well in order to increase its scope.
Talking about statute, India has no legislation in particular prohibiting cybersquatting unlike developed nations like USA. Since there is no explicit prohibition, the domain name is registered on a first come first serve basis which provides for a potential loophole in law, often misused by people. With a sudden spike of cybersquatting during pandemic, it is evident that India is in need of explicit legislation pertaining to cybersquatting/domain name dispute which should govern every aspect of it.
With a proper legislation in hand, cybersquatting could be prevented at the stage of registration which in turn would save precious judicial time, unnecessary expense of money on the part of complainant and an overall easement of process. It would also prevent selling of domain name by the cybersquatter for a high price and would thus, curb such practices of benefitting at the loss of others.
UNIFORM CIVIL CODE IS A MUCH NEEDED LEGISLATION
The Uniform Civil Code means a uniform personal law for all citizens of the country. This code will replace the existing religious personal laws in India and have a uniform law that will cater to all the citizens, irrespective of their religion. This has been envisaged by the makers of our Constitution under Article 44. But it has been strongly opposed because it is considered violative of Article 25 of the Constitution since it does not let people enjoy the personal laws. The article 44 of the Directive principle state policy state that it is the duty of the state to secure a Uniform Civil Code for the citizens throughout the country. One country, one rule is another name for it. The main objective behind implementation of a uniform Civil code in India is that it sets a law to govern the personal matters of all the citizens irrespective of religion. Personal laws are different from public laws as they cover marriage, inheritance, adoption, divorce and maintenance and the India practices a model of secularism in which it has made special provisions for people of different religions and the main idea behind Uniform Civil Code is to treat everyone equally irrespective of religion. Now the problem exists in the fact that there are differences and discrepancies within the personal laws. There is no uniformity. Also, there has been instances where the personal laws denied the rights of women or did not even give them rights. To counter these shortcomings, the Uniform Civil Code can be enacted. In India the main cause for communal conflicts among the common people are the personal laws The Uniform Civil Code is a uniform method or a standardized law which governs citizens as a uniform law. One problem with an absence of having UCC throughout India is that it may go against the basic principles of equality that is one of the fundamental rights of the constitution because by providing personal laws to a certain section of people we are determining the credibility of the secular ethos in the country.
As a matter of fact, it is known that personal laws of communities Gender Injustice is inbuilt. This is a result of the social and economic conditions under which these have been evolved and this is one of the Important reasons that why there is a need to introduce reforms in personal laws or bring about UCC to not only ensure equality between men and women but also in order to bring about gender justice. A uniform civil code if implemented shall lay the grounds for women to overcome various social evils that exist in the society such as the bigamy system and the dowry system which make women feel inferior and degraded. In order to bring uniformity, the courts have often said in their judgements that the government should move towards a UCC. The judgement in the Shah Bano case (1985) is well known where The Supreme Court’s decision in this case is regarded as a major milestone in highlighting the importance of UCC. The case concerned women seeking maintenance after being divorced under triple talaq. The women won in all lower courts, so the husband filed an appeal to the Supreme Court, which was dismissed because the Supreme Court ruled in favour of the wife as per the All India Criminal Code’s “maintenance of wives, children, and parents” provision (Section 125). In addition, the court recommended that a uniform civil code be established. However, widespread agitation was carried out due to religious sentiments attached to the law, and as an outcome, the then-government, under pressure, passed the Muslim Women’s (Right to Protection on Divorce) Act (MWA) in 1986, rendering Section 125 of the Criminal Procedure Code inapplicable to Muslim women. As a result, the court was correct in emphasising the importance of UCC for having a common basis for jurisdiction. Another case was the Sarla Mudgal Case (1995), which dealt with issue of bigamy and conflict between the personal laws existing on matters of marriage. In this case, relating to the issue for solemnizing of a second marriage by a Hindu spouse after converting to Islam. The court determined that a Hindu marriage solemnised in accordance with Hindu law may be dissolved only on one of the reasons listed in the Hindu Marriage Act 1955. Conversion to Islam and subsequent marriage would not automatically dissolve the Hindu marriage under the act, and therefore, a second marriage solemnised after conversion to Islam would constitute an offence under Section 494 of the Indian Penal Code (IPC). This made a need of UCC as it creates an ambiguous policy of marriage due to discrepancies between religious laws. By arguing that practices such as triple talaq and polygamy impact adversely the right of a woman to a life of dignity, the Centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights. While the criminal laws in India are uniform and applicable equally on all, no matter what their religious beliefs are, the civil laws are influenced by faith. Swayed by religious texts, the personal laws which come into effect in civil cases have always been implemented according to constitutional norms. The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts. In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations. In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from Quran. Some more judicial decisions that can be taken into account are:- John Vallamattom Case (The case in which Section 118 of the Indian Succession Act was declared unconstitutional after John Vallamattom challenged it on the grounds that it discriminated against Christians by imposing unreasonable restrictions on their willed gifts for religious or charitable purposes. This demonstrated the inconsistencies under religious laws), Daniel Latifi Case (This case demonstrates how universally applicable law should prevail over unjust religious laws. In this case, Muslim Women’s Act (MWA) was challenged for violation of Articles 14,15 & 21 of the Constitution. The primary point of contention was the amount paid throughout the iddat period. The Supreme Court upheld the act’s constitutionality but interpreted it in accordance with Section 125 of the CrPC, holding that the amount received by a wife during the iddat period should be sufficient to support her during the iddat period as well as for the remainder of her life or until she remarries).
The UCC aims to provide protection to vulnerable sections as envisaged by Ambedkar including women and religious minorities, while also promoting nationalistic fervour through unity. When enacted the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu code bill, Shariat law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all. The same civil law will then be applicable to all citizens irrespective of their faith. India faces a serious problem with personal laws due to their bias toward the upper-class patriarchal conceptions of society in all religions. As may be seen, panchayats continue to issue verdicts that violate our constitution, and no action is taken. Human rights are abused throughout our country through honour killings and female foeticide. By legalising personal laws, we’ve established a parallel court system based on thousands of ancient values. By eliminating all loopholes, the universal civil code would tip the balance in favour of society. While Muslims are permitted to marry many times in India, a Hindu or a Christian will face prosecution for doing the same. Similarly, there are significant disparities between many religious-related regulations. Equal laws in the areas of marriage, inheritance, family, and land are required. Here UCC serves as a saviour, bringing everything under one roof and assisting not only in ensuring greater equity but also in streamlining the legislative and judicial processes. The concept of a uniform civil code will also aid in reducing vote bank politics, which is practised by most political parties during every election. If all religions are subject to the same laws, there will be no room for politicising issues of discrimination, concessions, or special privileges enjoyed by a particular community on the basis of their religious personal laws. A Uniform Civil Code has become the hallmark of a modern progressive nation’s legal structure. It demonstrates the nation’s transition away from caste and religious politics. While our economic growth has been the fastest in the world, our social development has been non-existent. Indeed, it is possible to argue that we have degraded socially and culturally to the point where we are neither modern nor traditional. A unified civil code will aid in the advancement of society and help India achieve its goal of becoming a developed nation. As we all know, secularism is a critical aspect of our nation, as reflected in our constitution’s preamble. At the moment, we practise selective secularism, which means that we are secular in some areas but not in others. A Uniform Civil Code requires all citizens of India to adhere to the same set of laws, regardless of whether they follow Hinduism, Islam, Christianity or Sikhism. A Uniform Civil Code does not mean that people’s freedom of religion will be restricted; it simply means that everyone will be treated equally. That is authentic secularism. Additionally, as previously stated, in modern classification laws and religion are two distinct concepts, and thus entwining them will result in social disruption and inequality.
India is a country of diverse culture where the beliefs of the people are too vehement but with the right communication and education to all the religious groups, the implementation can take place efficiently and effectively. Special Marriage Act which has been enacted is hardly seen into practice since it is a mere option and not requisite, which further shows the importance of Uniform Civil Code. Thereafter, the culture of spreading inadequate information shall be dealt with regardless as it has become a trend in the country and could result to hindering proper implementation of the requisite laws like Uniform Civil Code. Uniform Civil Code is not a step to make India a Hindu State rather to bring about unity between different religions along with application of same provisions for all, leading to simplification of law and order for better results in the nation. Fear of the certain section of society who are subjected to the special rights, shall be addressed since such rights will have no impact or interference by enactment of the Uniform Civil Code, which shall be ensured to the society as this is one of their Fundamental Rights as under Article 15 of the Indian Constitution. Right to Religion under Article 25 of the Indian Constitution is not specifically for men but also females of the nation. The lack of political will to implement Uniform Civil Code is quite evident, it is important for the government to take strong steps rather than fearing the sensitive issues, keeping the prosperity of the nation and its people in mind such step shall be encouraged. Eminent Jurist from all the religion shall form a committee to bring together the Uniform Civil Code so that all the religions are kept in mind while drafting the Uniform Civil Code without any personal biases towards a particular religion. Uniform Civil Code is surely a sensitive issue but with the right information and communication it can bring about an ever lasting change in the nation along with the right growth and development. The developed countries like USA, Canada, Australia, UK, Russia etc. have adopted the Uniform Civil Code as a developing law for the betterment of their society, culture, religion and to remove discrimination amongst the communities. Uniform Civil Code is the only reason for these countries to achieve their higher goals. USA have a secular law that applied equally and uniformly upon all the citizens of their state. The USA have English common law, which makes every person equal and remove the discrimination between the majority and minorities. Even people from other countries also have to follow common law of their country. Because of uniform civil code USA has achieved its goals and is successful in developing in all aspects which include economically, socially and religiously as well. In India Goa is the only state in India having Uniform Civil Code as special marriage act 1954 is applicable all over the Goa. This was introduced by Portuguese in 1870 as goa family law but after the liberation of Goa this law was retained and became special marriage act in 1954. This marriage acts provides a civil marriage of two person of different sex irrespective of their religion. This law prevail in Indian to have their marriage outside the customs of their personal law. This law is still followed in Goa as it punishes polygamy which means having more than one spouse at a time. Hence no person can have more than one marriage at a time. Also this act states that at the time of divorce both husband and wife will be treated equally with regards to property and will not be discriminated. However, this act discriminates on a ground that a Hindu male can have more than one spouse living if the earlier wife fails to deliver a boy till she attain the age of 30 years, this shows that even this civil act is discriminatory.
Our country has diverse culture, tradition, religion to make them more progressive then, we need to remove discrimination on basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation growing traditionally as well as economically. Some communities think that Uniform Civil Code is ban for them as it is against their religion. Nevertheless it is modernization of their religious law which will boost up their equality and will make them rich traditionally and socially. According to Article 14 of the Indian constitution, every single citizen is equal in the eyes of law and court. But in India, we have personal laws based on the particular religion. For example, a Muslim can marry multiple times and he will not be prosecuted but if there is any Hindu, Christian or Sikh then he will be prosecuted by the court which is against the saying of Article 14 of Indian constitution. This is not equality in real means. If we want equality then there should be the same laws related to marriage, adoption, divorce, inheritance, family, land etc. Then the exact definition of equality will be defined. In some aspects personal laws are violation of article 14 of the constitution of India. Taking into account as stated by The Supreme Court judge-Justice Y.V. Chandrachud, rightly remarked, a common civil code will also help in strengthening the cause of national integration by removing conflicting interests. So to address the concerned controversy over UCC we would like to conclude by stating that the manner in which UCC was dealt with by the British in 1840, the issue is discussed with same apprehensions even 200 years later. The Shariat Application Act of 1937 protects the application of different laws as far as the Muslim Personal Law is concerned, but despite this, many personal laws of Muslims have been codified. The last in the row is the law of 2019, protecting Muslim women’s right of marriage. Equal rights to property for Hindu women come in bits and pieces. In 1935, Hindu women got limited right to property. In 1956, she got equal absolute right to property in succession and finally, a daughter got equal rights to the coparcenary property and agricultural or rural lands in 2005. Equal rights cannot be ensured just by one stroke. It requires consistent efforts and commitment for a long period of time. Our purpose of giving the example of Hindu law dealing with right to property of women was to emphasise that there was no unification in property rights of Hindu women. It was different at different points in time. UCC is something which can never be answered in a straight Yes or No. It has no one word answer. It is a process which has been going on and must continue to ensure rights of all members of society. The unification of code is not possible until society is serious about codification of the code. Codification is a pre-requisite for unification.
Our country has diverse culture, tradition, religion. To make them more progressive we need to remove discrimination on the basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation grow traditionally as well as economically.
Family court with territorial jurisdiction is the competent authority to give a child in adoption: Kerala HC
Without leaving any room for even an iota of doubt, the Kerala High Court has in a learned, laudable, landmark and laudable judgment titled Thomas P & Anr. V. State of Kerala & Ors in CRL. A. No. 971 of 2019 which was delivered on November 5, 2021 has laid down explicitly that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. The Court noted that as per law, the appellants were eligible to adopt the child. Moreover, it must be mentioned that presently the Family Courts are designated as Adoption Court as per O.M. No. D12-10890/2016 of the High Court of Kerala. As such, the decision of the District Judge was set aside and the appeal was allowed. The District Court was also directed to return the records for presentation before the proper court.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice M.R. Anitha of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Crl.A has been filed against the order in O.P. (Adoption). No. 75/2016 dated 15.03.2016 of District Court, Kollam. According to the learned counsel for the appellant, respondents 2 and 3 are husband and wife. The 2nd respondent is the brother of the 2nd appellant and 3rd respondent is the wife of the 2nd respondent. The respondents 2 and 3 are the biological parents of Kumari, Maria Johnson aged 8 years old, who is the 4 th girl child of the said couple. The appellants are childless couple; both of them had undergone treatment for infertility for a long period. Doctors confirmed that it will not be possible for the appellants to become biological parent of a child. The 2nd appellant had to undergo uterus removal surgery. Hence, at present there is no chance for the 2nd appellant getting conceived. Kumari. Maria Johnson is the 4th girl child of the respondents 2 and 3. While so, the respondents 2 and 3 expressed their willingness to give in adoption of Kumari. Maria Johnson to the appellants. Hence, with a view to legalize the entire proceedings, O.P.(Adoption) No. 75/2016 has been filed by the appellants before the District Judge, Kollam. By the impugned order, the learned District Judge dismissed their O.P., finding that the court has no jurisdiction to entertain or adjudicate the issue of adoption mooted by the appellants and aggrieved by the same appellants approach this Court.”
As we see, the Bench then observes in para 3 that, “Heard both sides. Section 2(2) of the Juvenile Justice (Care and Protection of Children) , 2015 reads as follows: “‘adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”
Furthermore, the Bench then mentions in para 4 that, “Section 2(23) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows: “Court’ means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.”
What’s more, the Bench then added in para 5 that, “Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:
“ ‘relative’, in relation to a child for the purpose of adoption under this Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent.””
Going ahead, the Bench then points out in para 6 that, “According to the learned counsel for the appellants, being the brother’s child of the 2nd appellant, the child supposed to be adopted will come within the definition of ‘relative’ defined under Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 56(2) is also relevant which reads as follows:
“Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.””
Moving on, the Bench then also stated in para 7 that, “Next the learned counsel drew my attention to Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the Act) which deals with the appeals and reads thus:
“Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)”.”
To put things in perspective, the Bench then states in para 8 that, “So this is the proper forum for entertaining an appeal against the impugned order. The learned counsel drew my attention to the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2014 ( In short the rules). Rule 40(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 reads as follows:
“For all matters relating to adoption, these rules and guidelines issued from time to time by the State Government and notified by the State Government shall apply. In the absence of such rules the guidelines issued by the Central Adoption Resource Agency and notified by the Central Government under subsection (3) of Section 41 of the Act shall apply.””
As it turned out, the Bench then lays bare in para 9 that, “Rule 41(C) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 deals with the procedure for adoption reads as follows:
“The specialised Adoption Agency along with the prospective adoptive parent(s) shall file a petition in the Court having jurisdiction for obtaining the necessary adoption orders under the Act and these Rules within ten days from the acceptance of referral by prospective adoptive parent(s) and shall take necessary steps to get the process of legal adoption completed at the earliest.””
In addition, the Bench then points out in para 10 that, “The learned counsel also drew my attention to the Adoption Regulations, 2017. Regulation 4 of Adoption Regulations, 2017 deals with child eligible for adoption reads as follows:
The following shall be eligible for adoption, namely:-
“(a) any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
(b) A child of a relative defined under sub-section (52) of Section 2 of the Act;
(c) child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.””
Not stopping here, the Bench then notes in para 11 that, “Regulation 5(7) of Adoption Regulations, 2017 reads as follows:
“ The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.””
Interestingly enough, the Bench then further noted in para 12 that, “The learned counsel further drew my attention to Regulation 55 Adoption Regulations, 2017 reads as follows:
“Legal procedure:- 1)The prospective adoptive parents, who intend to adopt the child of a relative as defined in sub-section (52) of Section 2 of the Act, shall file an application in the competent Court under sub-section 2 of Section 56 of subsection (1) of Section 60 of the Act in case of in-country relative adoption or inter-country relative adoption, respectively, alongwith a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI.
Women in live-in relationships and the matter of stealthing: A hidden issue
With the changing lifestyle and westernisation of people’s ideology, the practice of non-formal relationships by “Live-in Relationship” has emerged. With time, the concept of companionship has evolved, and it is no more limited to the usual way of a Marriage. This new expression of a live-in implies two individuals having a consensus to cohabit under the same roof to check their compatibility before the actual marriage ceremony. Sometimes termed as a walk-in walk-out relationship, this kind of union is entirely legal, although it has never been recognised in any Acts or other legislation across India. Judiciary has undoubtedly, in the process, played a significant role to normalise this practice by delivering certain revolutionary judgments.
THE LEGITIMACY OF LIVE-IN RELATIONSHIP: A CONFLICT BETWEEN MORAL PREACHING AND LEGAL PRINCIPLES
Recent judgments delivered by the Punjab and Haryana High court have proven that courts should be concerned with constitutional morality and not with what is considered moral in the eyes of society. In the series of events, the two benches of the high court had formerly denied protection to a couple who demanded security from their family members, quoting those live-in relationships are illegal in the country and is looked down on by society. Later on, the other bench took cognisance of the case and held that the couple shall be protected at all costs and that an individual’s liberty cannot be merely taken away on the grounds of being immoral.
The term constitutional morality was duly interpreted in the case of Manoj Narula v. Union of India, and it was found that to examine the constitutional character of any subject, it is to be assured that it aligns with the constitutional principles and does not become an act of arbitrariness by going against the set rules. The working of the Indian Constitution has been structured so that its principles match the needs of a progressive society. Its evolution is directly proportional to the conditions and culture prevailing in the community.
In its other leading judgment of Indra Sarma v. V.K.V. Sarma, the Supreme Court, via a liberal approach, opined that Live-in is a novel approach of the current generation to get into the nitty-gritty of a household without actually being bothered by an official tag of marriage. It is neither a sin nor a crime in the eyes of the law and shall be welcomed with open arms.
LIVE-IN RELATIONSHIPS: ABSENCE OF STATUSES AND ROLE OF COURTS AS GUARDIAN
The absence of a statutory enactment makes the practice swinging in uncertainty. There is neither any legal definition of the relationship nor any prescribed punishments for the wrongdoers. However, the court has tried to provide an identity to it by defining it in five different ways while delivering the judgment of Indra Sarma v. V.K.V. Sarma. The live-in relationship is where two individuals’ privacy needs to be protected. It does not matter how society pursues them to be about the privacy judgment held in K.S. Puttaswamy v. Union of India it is to be quoted that it is the decision of the individuals how they want to spend their lives as. It is not just providing them with the right to freedom to choose but the state’s duty to protect their very choice. It is necessary to ensure that the individual enjoys liberty with the utmost dignity and opt for whatever they deem suitable for a happy life.
The Supreme Court put forward certain conditions to certify a cohabitation as a “legal live-in relationship”. In the 2010 judgment of D. Velusamy and D. Patchaimal, the court specified the couple must adhere to the following points while establishing a legal live-in relationship. These were:
Both the boy and the girl have to present themselves as akin to being a husband and a wife.
They both must be legally eligible for marriage and should have attained the age of 18.
They must be eligible to get into a legal marriage and be unmarried.
Both have a consensus of mind for cohabitation without any pressure and have lived like a husband-wife for a considerable period.
The apex court acknowledging the menace of khap-panchayats and honour killings across the country strongly opined that it is highly crucial to ensure that the right to choose a partner is protected at all costs. It is a combined duty of the state and the judiciary to look after the rights of those young couples who usually run away to save their lives from brutal attacks.
DEALING WITH THE ISSUE OF WOMEN IN THE LIVE-IN RELATIONSHIP: AN ANALYSIS
The Protection of Women from Domestic Violence Act of 2005 (Pwdva) is the first piece of legislation to recognise live-in relationships by providing rights and protection to women who are not legally married but have chosen to live with a male partner in a relationship that is similar to but not identical to marriage. Section 2(f) of the Domestic Violence Act, 2005 defines: “Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family”. The court has interpreted the expression “relationships like marriage” on the same line and meaning with the live-in-relationships. The provisions of Pwdva will apply to all the individuals who are in live-in-relationships. “This provides women with fundamental rights to protect themselves from abuse, fraudulent marriage, and bigamous relationships”. Section 125 CrPC is one crucial legislation that was inducted to avoid vagrancy and destitution for a wife/minor children/old age parents, which has now been given to partners of a live-in-relationship after judicial interpretation. “Malimath Committee, also known as the Committee on Criminal Justice System Reforms, was founded in November 2000. The committee presented its report later in 2003, with some notable recommendations under the heading “offences against women.” One such bid was to amend Section 125 of CrPC to alter the meaning of wife, and the revision was made accordingly. The expression includes the ladies in the live-in-relationship, but the accomplice has abducted her at his own will, so now a lady in the live-in-relationship can get the wife’s status. It interprets that if a female has been in the live-in-relationship for a considerable period, she should have legitimate privileges as a spouse and claim maintenance under this section. A presumption would arise in wedlock where partners live together as husband and wife. However, a contradictory decision came when it was decided that the divorced wife could be treated as the wife and claim maintenance under Section 125 of CrPC. Still, it won’t apply to those staying in live-in-relationships because they are not legally married, and partners cannot divorce each other and claim maintenance under this section.”
STEALTHING: AN UNIDENTIFIED CRIME HIDDEN BEHIND THE MISINTERPRETED MEANING OF CONSENT AND IMPACT OF THIS IN A LIVE-IN RELATIONSHIP
Stealthing refers to the act of secretly removing a condom while having sexual intercourse with a partner who has consented to the protected sex. This is a deceptive form of sexual assault that grossly violates the sense of consent and exposes the partner to unwanted pregnancies, sexually transmitted diseases, etc. The non-consensual removal of condoms has been identified as a form of sexual assault by various western jurisdictions; for instance, “The Supreme Court of Canada and the Swiss Criminal Courts have identified stealthing as rape (R v. Hutchinson, 2011). Further, this issue acquired international attention when UK’s Supreme Court stated that stealthing fell under the ambit of rape and accordingly introduced the “doctrine of conditional consent” (Assange v. Swedish Prosecution Authority, 2011).” It is still a grey area between the white and black definitions of consent in India. It is an important issue that needs to be discussed because of India’s social conditioning and stigma attached to contraceptives. The National Health Survey of India 4 (NHS4) found that 80% of adult men aged between 20 to 24 years do not use contraception while having sexual intercourse; this might emerge from the notion that the use of condoms makes ‘one less of man’. The idea of ‘conditional consent’ has been identified under Section 375 (4) of the Indian Penal Code, which stipulates, “When the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is, or believes herself to be lawfully married, such sexual intercourse shall amount to rape.” This scenario explains that a woman’s consent is conditional on the man’s being her husband. When this factor is eliminated, the consent is effectively hampered, which the statute identifies as rape. Suppose the analogy has been drawn to the act of stealing, and the consent is based on the partner using a condom. In that case, the non-consensual removal of the protection during sexual intercourse invalidates the consent, thus amounting to rape. The non-consensual removal of condoms also is further covered under the ambit of Section 270 of the Indian Penal Code, which penalises malicious acts that are likely to cause the spread of deadly diseases. “The above analysis shows that stealing has all the elements of a crime but still has not been recognised as one; the policymakers and researchers have tried to look for the civil rather than criminal mechanisms while dealing with Stealthing. It is pertinent to note that Mrinal Satish, a professor involved in expanding the definition of rape in the Criminal Law Amendment Act, 2013, firmly believes that stealing should be covered within the ambit of rape”. Women in live-in relationships became very easy victims in such scenarios as the legislation for both live-in-relationship and stealing are unclear, leaving the victims unheard. If their issues are addressed in some circumstances, ambiguous legislation leaves the perpetrators free. It is time now that specific legislation concerning the above-stated matter is rolled out, and no room for injustice prevails.
Please read concluding on thedailyguardian.com
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