On 5 June 2020, the President of India promulgated the Insolvency and Bankruptcy (Amendment) Ordinance, 2020 (Ordinance). It was promulgated to suspend the initiation of fresh insolvency applications under the Insolvency and Bankruptcy Code, 2016 (IBC/Code) for a period of six months from 25.03.2020 to 25.09.2020. It was also provided under the ordinance that the suspension can be further extended to 25.03.2021. The ordinance was part of the Atamnirbhar package announced by the Govt. of India to mitigate the economic hardship caused by the COVID-19 as because of the imposition of the nationwide lockdown, companies especially Micro Small Medium Enterprises (MSME) were facing difficulty to meet their loan obligations. A new provision namely Section 10A was inserted to make sure that creditors do not resort to insolvency proceedings under the code against such companies.
Ordinance insulated the companies from the insolvency due to COVID-19 related defaults. It further provided that no application “shall ever” be filed for the default committed during the suspension period. This is an amnesty clause that protects the companies from any default committed during the suspension period. Though the ordinance provided the much-needed relief to the companies but it failed to take into consideration the economic hardship of the personal guarantors to corporate debtors. Initially, it was unclear whether the insolvency proceedings can be initiated against the personal guarantors when the same is suspended for the corporate debtor. It was clarified by Mr. M S Sahoo, Chairman of the Insolvency and Bankruptcy Board of India (IBBI) statutory regulator under the code who states that “The Covid-19 default has been suspended for the purpose of the CIRP (Corporate Insolvency Resolution Process), and not for other purposes under the Code, including individual insolvency”. It is beyond reasonable comprehension that for a particular default insolvency proceedings cannot ever be initiated against the company but can be initiated against the personal guarantor.
Personal Guarantors under the Code
Personal Guarantors have chequered history under the code. Initially, Bombay & Allahabad High Court have divergent views as to whether the provisions of moratorium under Section 14 of the code will be applicable to personal guarantors. The Supreme Court in the case of State Bank of India v. V. Ramakrishnan [(2018) 17 SCC 394] supported the view taken by Bombay High Court and held that provisions of the moratorium will be applicable to guarantors. This led to the clarificatory amendment under Section 14 which states that the moratorium will not be applicable to guarantors. The Provisions related to the individual insolvency is provided under Part III of the Code. Part III was not initially notified at the time of the enactment of code in December 2016. It is on 15th November 2019 the Govt. of India has notified the part III of the code only for the personal guarantors of the corporate debtor. Recent Insolvency case filed against Mr. Anil Ambani for a personal guarantee of Rs. 1200 Crore is also filed under part III of the code.
Quandary Under The Ordinance
There can only be two types of guarantors for a company namely corporate guarantor & personal guarantor. The ordinance has suspended the Corporate Insolvency Resolution Process (CIRP) which means that the insolvency proceedings cannot be initiated against the corporate guarantors. However, since provisions of Part III of the code are not suspended by the ordinance, insolvency proceedings can be filed against a personal guarantor. It is abysmal on the part of the govt. to assume that a corporate guarantor will suffer from economic hardship due to pandemic but a personal guarantor will not. As a result of such an assumption, a Corporate guarantor is protected from insolvency whereas a personal guarantor is not. This amount to the differentiated treatment of similarly situated persons i.e. guarantors and may fall foul to Article 14 of the Constitution of India.
The Contract of guarantee is governed by the provisions of the Indian Contract Act, 1872 (Contract Act). It is well-settled law that the principal debtor and guarantor are jointly and severally liable to the creditor. Creditors have the option to proceed against any one of them. However, there are certain exceptions to this well-settled principle provided under the contract act. Section 134 of the contract act states that if the principal debtor is discharged then the guarantor will also be discharged from fulfilling the debt obligation. The Delhi High Court in the case of Rani Constructions v. PatiJel JV, [129 (2006) DLT 38] while interpreting Section 134 held that;
“…Section 134 of the Indian Contract Act, 1872 provides for the discharge of the surety by release or discharge of the principal debtor. It provides that the surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released, or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor…”
Now, by the virtue of the ordinance, the creditors cannot ever file an application against the company i.e. principal debtor for the default during the suspension period. This effectively amounts to the discharge of the principal debtor with respect to the proceedings under the code. The company is absolved from any action by the creditor under IBC.
Applying Section 134, of the contract act insolvency petition shall not also be filed against a personal guarantor as well. Since the principal debtor is discharged from the rigor of IBC, a personal guarantor shall also stand discharged from the rigor of the insolvency. The author is not of the opinion that the personal guarantor shall be discharged all together but when a benefit has been conferred upon the principal debtor by ordinance, the same must be made available to the personal guarantor as well.
Furthermore, Section 60(2) states that insolvency application against the personal guarantors of the corporate debtor shall be filed before the National Company Law Tribunal (NCLT) where is the CIRP against the corporate debtor is pending. However, no there will no pending CIRP against the corporate debtor, and application has to be filed before the Debt Recovery Tribunal (DRT) as mandated under Section 79(1) of the code. Till date, DRT did not deal with any application under the insolvency code and therefore, it has to be seen that whether DRTs are well equipped to deal with the cases arising out of the code.
It is explicit that the ordinance has failed to take into consideration the impact of COVID-19 on personal guarantors. Creditors still have the option to proceed against the corporate debtor & personal guarantor under other laws such as SARFEASI, RDBFFI &, etc. However, when the creditors are barred from initiating insolvency against the corporate debtor, the same shall be applicable to personal guarantors as well. This quandary regarding the personal guarantor can be removed by extending the application of the ordinance to part III of the code. Till then the never-ending dilemma of personal guarantors will continue.
Akshay Sharma, final year law student, National University for Study and Research in Law, Ranchi.
Making things happen: Scarcity management, the Solapur way
Tukaram Mundhe and his team proved that it-can-happen because they made-it-happen, setting an example for others to follow.
The Solapur approach can be extremely useful in the implementation of recently announced Jal Jeevan Mission by Government of India.
The district administration focused on the issue of development and strengthening of existing water sources. The main strategy being recharging of wells/ borewells. Of the 6,400 drinking water sources, recharging was undertaken before the monsoon of 2015-16.
Solapur has been a perennially water-scarce district. It lies in the rain shadow region of western Maharashtra. Ironically, despite being in the semi-arid zone, Solapur has the dubious reputation of having the largest number of sugar factories in Maharashtra. Sugarcane and sugar mills have created a vicious circle of unscientific farming practices that have led to disastrous consequences.
The rainfall pattern and its utilization has led to depletion of water resources. What was lost sight of was the correlation between rainfall, runoff, recharge and usage of water. Scarcity of water had been a recurrent phenomenon throughout the state and especially in Solapur. A holistic view of scarcity was taken by Tukaram Mundhe who took over as Collector of the District in 2014. He and his team analyzed the reasons behind it. Non-availability of water in the sources and data relating to water resources, transportation of water and its improper distribution, and quality of water were identified as primary causes of this perennial problem.
After the most devastating droughts in the year 1971, the Government had come out with number of legislations and rules thereunder to counter the impact of the drought. The provisions mandated water management through a two-pronged approach:
• Immediate measures to make water available to the people through requisition of private wells/borewells, pipelines, digging new borewells, special repairs, tankers etc (Proforma A measures)
• Measures to prevent recurrence of scarcity condition such as well/borewell recharging, desilting of water bodies to increase storage capacity etc. (Proforma B measures) Over a period of time, the focus had been on immediate measures while the preventive and promotive measures had been totally ignored. This had aggravated the scarcity rather than preventing it. Tukaram Mundhe got an action plan prepared.
The plan focused on implementation of long-term measures as in Proforma B vigorously. It was felt that unless the Gram Panchayat took up the development of sources (through recharging water sources, recharging ground water etc), the problem would not be taken care of. The regulation and development of sources were taken simultaneously. Government Rules mandated following steps to be taken in times of scarcity before making tankers operational, which is a last resort.
1. Completion of piped water supply schemes (WSS)
2. Special Repairs of piped water supply schemes
3. Special repairs of Borewell
4. Digging of new Borewell
5. Temporary piped WSS
6. Digging small wells in river beds/dams
7. Desilting and Deepening of existing wells
8. Private well requisition
9. Water supply through Tankers/Tractors/bullock carts The first major step was identification of public drinking water sources. Once sources were declared as public sources, regulatory provisions of Groundwater Act came into play. In December 2014 about 3000 sources were declared as public drinking water sources. This number increased to 15533 by March 2016. These sources were being exclusively used for drinking water purposes like wells, jack-wells, borewell, hand pumps etc.
It was soon discovered that non-availability of sources was far from the truth. Solapur had 1144 revenue village s a n d around 15500 drinking water sources. Thus, per village availability was in sufficient. However, the policy and its implementation had been focused on provision of more public drinking water sources. Hence, the strategy of providing more water sources was incorrect. Instead, the focus should have been on development and strengthening of existing drinking water sources so that the drinking water sources became functional.
The District administration focused on the issue of development and strengthening of existing water sources. The main strategy being recharging of wells/ borewells. Of the 6400 drinking water sources, recharging was undertaken before the monsoon of 2015-16. Almost 5000 of these sources were recharged leading to water availability in these sources.
The results were there for all to see. Had these water sources not been recharged, 127 tankers would have been required for each village and hamlets. Identification and recharging of drinking water sources in itself did not help in doing away with scarcity. It had to be in tandem with implementation of Ground water Act and its rules. The transportation infrastructure for water supply either did not exist or was dysfunctional. 13 of the 29 Regional Water Supply Schemes (RWSS) were dysfunctional in the District on account of nonpayment of electricity bills and non-maintenance of pipeline system. However, the real issue was not payment of electricity bill or non-maintenance of pipelines but the entire approach to the issue.
These schemes were made operational only during scarcity situation for 2-3 months. Electricity bills were paid by government under scarcity head and were used as tanker feeding points to the villages, for which the RWSS was meant to supply the water. A decision was taken to make water available permanently through the RWSS to these villages. This was done as reforms and not as a dole. The villages covered under RWSS which had assured drinking water source were told that the scarcity measures would be provided if the scheme was accepted for the entire year for which electricity bills have to be paid. There was a lot of initial resistance. Ultimately the gram panchayats had to pay outstanding bills as the saw the benefit in doing so. These funds were utilized for special repairs of the pipelines and made the RWSS functional. No additional financial assistance was taken from the government.
The transformation of non-functional to functional water supply schemes helped in reduction of tankers from 165 villages and hamlets. Reform of extension of distribution network was undertaken in the uncovered areas through extension of water supply schemes and commissioning of either the borewells or handpumps where piped water supply did not exist. Consequently, 35 villages and 92 hamlets were made tanker free. Finally, the water quality issue had to be addressed. Water was polluted primarily on account of industries or because of depletion of water source. Provisions of the Groundwater Act were implemented firmly to take care of errant industry. Gram Panchayat funds were utilised for water purification. The focus in the District was on revival of existing RWSS and that was found to be feasible and economical as against starting new schemes.
The revival required just Rs 64.75 lakhs per village which was equivalent to the cost of supply of water by tankers every year and it provided a long-term solution. Tukaram Mundhe and his team proved that itcan-happen because they made-it-happen, setting an example for others to follow. The Solapur approach can be extremely useful in the implementation of recently announced Jal Jeevan Mission by Government of India.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
Why can’t Indian politicians and police contain crime?
Organised crime is rising. It is very essential to make our country’s police force smart and hi-tech.
The new IPL cricket season is currently underway. People are glued to their television sets anticipating the fours and sixes from their favourite batsmen, but my eyes have been on a booming betting racket with transaction values in thousands of crores during the IPL this season. The Commissioner of Police Amitesh Kumar dropped a bombshell by conducting a surgical strike on bookies and hawala traders which have statewide ramifications from Nagpur to Mumbai. In my early days of journalism, during 1968-69, I worked as a crime reporter in Mumbai. I used to meet and interact with underworld dons right from Haji Mastan to the then biggies of the crime world.
I also used to visit the hideouts of many dreaded criminals. I still keep an eye on crime news. Apart from my state, I have also seen brave and honest officers in uniform in other states of the country who have brought glory to the police force by their hard and honest work. Certainly Maharashtra has led the others in this respect. Didn’t we capture Ajmal Kasab of 26/11 fame? No doubt, the brave police officers can manage their respective states. However, the system cannot be transformed without changing the entire culture of policing. This responsibility rests with the state governments alone. The Chief Minister, Home Minister, DGP and CP of a state should decide that every type of crime that spreads in society, whether it is overground or underground, whether it is in water or in air, is a crime and needs to be eliminated! Do they not know where arms or gold is being smuggled?
Where the dance bars are operating, where the drugs are being peddled? All that is required is political will. When politicians and police join hands to achieve some noble social mission, everything is possible. The tentacles of the criminal world cannot be unentangled as long as there is misuse of money in politics and there is no transparency in the postings and transfers of government officials. The wave of crime is moving from village to metropolis and acquiring a formidable shape. As long as you don’t improve the status of police, including at the mental, social and economic levels, you cannot expect them to do better. Is the cop not a human being? They are being made to work for 18 hours nonstop. They are seldom able to celebrate Diwali, Christmas and Eid with their family members. Despite being provided with quarters, they lack their own home. In such a situation, how will they be able to fulfil their duty? And yes, I do not know what is true and what is false, but when people say that there are many officials in Mumbai who have amassed illgotten wealth worth thousands of crores, then does not such a thing merit a discussion?
When I compare the police here with their counterparts abroad, the comparison seems pointless. They are way ahead of our police because of the kind of physical training they get, modern weapons they are equipped with, an impressive uniform they are provided with and they have no domestic worries. We cannot even dream of such a blissful situation here! The police forces abroad are free of political interference. I would like to point out that whether it’s London’s ‘Bobby’ or the cops of Israel, Europe, Singapore, Dubai, Hong Kong or the US, they are free of corruption. No one can even think of bribing them the teeniest-weeniest bit! Those who indulge in corrupt practices are severely punished.
London’s ‘Bobbies’ have acquired such an iconic reputation that tourists vie with each other to be photographed with them. Their statues are also found in souvenir shops. Let me narrate an anecdote from Singapore. A friend once came to the airport to receive me. When the flight was delayed, he decided to while away the time drinking beer at the airport. It was night and when we got out of the airport, the car stopped at an intersection and the constable waved a stick from afar and said, “You are drunk. Park the car on the side.”
My friend tried to convince him that he had only drank one glass of beer, but the constable was in no mood to show leniency! Meanwhile, a female police officer stepped out of the car and came to us. She immediately recognized us, yet she got our challan deducted and asked us to hop into her car. That female officer was none other than my friend’s elder brother’s daughter. She dropped me at the hotel. On the way, I asked her why she hadn’t spared us. She said that the rule is uniform for one and all. “I would have lost my job and would not have been able to drive a car for the rest of my life,” she explained. “Now he will be produced in the court and the licence will be suspended for one year,” she said. I always wonder why politicians do not introduce this type of system in our country. We hardly come across such an instance of highest professional probity.
For example, when the US President came to India and his security personnel did not follow the protocol, a Mumbai Police officer stopped their car. But this kind of thing is rather an exception here, whereas the need of the hour is that every state should have this type of smart, dynamic and law-abiding police officer. For this, it is necessary that the government takes necessary steps. Human rights organisations and the judicial system should help them. And at the same time, it is most important that there should be some effective coordination between the states because the network of criminals is spread all over the country. Especially in Uttar Pradesh, Bihar, Rajasthan, Kerala and Punjab, the network of organised crime has deep roots. Strict coordination is necessary to eliminate it.
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
Impact of National Education Policy 2020 on legal learning
There have been a lot of talks around the educational sector concerning the New Education Policy, released by the Union Human Resource Development Minister Ramesh Pokhriyal ‘Nishank’. With all the barriers in the education sector in view, the policy was introduced with the objective of progressive reform. A long-awaited discussion on the integrity of the education sector was knowingly triggered by the policy. The policy proposal has been seen as a review of the country’s current education landscape, including the legal education sector, along the path of its objectives.
In addition to promoting the intelligent legal profession, legal education also serves as a link to legal education and is directly linked to the quality of the country’s rule of law. Where society trusts the law, the rule of law prevails and legal education acts as a medium to inculcate the values of law in the young generation. Concerning the importance of legal education for the country’s safety, peace and welfare, emphasis should be put on ensuring the quality of legal education. Several improvements and reforms have been made to the 2020 policy, which could have a large impact on legal education.
The NEP 2020 is a very ambitious and relatively progressive guideline set out by the government of Modi, which will replace the policy of 1986. The 1986 National Education Policy concentrated on access to education for everyone, while the 2020 new policy focuses on flexibility while delivering quality education. The new strategy reflects on the values of multidisciplinary, innovative, critical thinking in order to promote this. The emphasis on life skills, ethics, and constitutional values has also been placed. Public education is promoted in order to minimize the complete privatization of the education sector. One of the most appreciated proposals in this policy is the introduction of the Right to Education until the age of 18. All these sweeping changes by the Indian Government will change the future of legal education significantly.
Impact on Legal Education
• Inclusion of ethics and constitutional values: Ethics, morality, and principles are based on legal education. Morality, justice, and principles are some of the most significant keywords in the life of any law student. These values were also the most key components of our ancient Hindu education system. In traditional legal education, emphasis has been placed on maintaining the importance of justice in a format. But the gravity for such values has been depreciating with the changing time and change in the legal profession. We have several cases of immoral, unethical professional behavior in the recent past, one of which is the recent case of Prashant Bhushan, where famous lawyers were charged by the supreme court for the offence of Contempt of Court. All these offences arise from the vacuum created by the lack of ethical and moral values in the profession, such as contempt of court. In the case of legal work, the lack of inclusion of ethical principles in legal education may be one of the key reasons for losing the integrity of the profession. There is a famous saying that education moulds the future of that profession. The current legal education system, however, emphasized access to education for all, but ignored the quality assurance aspect by inscribing ethical and moral values. One of the primary aims of this new draft of NEP is “to create a new system that is aligned with the aspirational goals of 21st Century education while remaining consistent with India’s traditions and value systems.” The policy also aims to provide legal education that is guided and informed by the constitutional ideals of social , economic and political justice. The importance of democracy, the rule of law and justice in the country will grow with the introduction of these values.
The legal profession is considered to be one of the most prestigious professions of all; it is the responsibility of legal education to maintain the same. To fulfill that responsibility, it is important to state that ethical and constitutional values should be an integral part of legal education. A commendable reform was made in the 2020 NEP to include these values in the curriculum while recognizing the long-term objectives of legal education.
• Multilingual education: Indian Constitution acknowledges 22 languages. India has even more languages than the number of states the country has, despite having just 22 languages in the Constitution. India’s multilingual existence provides the country with a distinctive character. Because of the variety of cultures and languages in the country, India has become popular throughout the world. A system of education at the foundation of any society. Society thrives on the educational sector’s development and growth. The drafted NEP 2020 is the prominent document in consideration of the same, when deciding the country’s future. The changes in the inclusion of various languages in the process of improving society. The policy stated that education in English and the language of the state in which the law school is located should be considered by the state institutions providing legal education. It has been speculated that by ensuring the ease of legal education at the comfort of law students, it will reform the education sector. It should be noted, witnessing the response to this initiative, that it will help to reduce the delay in legal outcomes due to the need for translation.
• For global common good: Jiddu Krishnamurti, an Indian thinker, once stated on “learning in a non-competitive and non-hierarchical ecosystem and discovering one’s true passion without any sense of fear.” She emphasized the element of critical thinking to make education as a means of achieving education as a public good. The ability for critical thinking derives from the ability for cultural differences to stand out. The ability would ultimately create the common good of the nation. In order to ensure nation-building, community development, education is a necessary public good. We have a rather exclusive society, which is witnessed by incidents such as the exclusion of the transgender community based on their sex. Legal education may be a major factor in making this society inclusive. As a public good, education will work in the fresh air to make communities alive. Ensuring access to education to every section of the public will produce sensitive, creative, and upright citizens, on whom the society could rely on the aim of an inclusive society.
The NEP policy draft can be seen as a medium to achieve this goal. The policy discourages the concept of stand-alone institutions, in the way of making the education a public good. In furtherance of the same, it states that “All institutions offering professional or general education will aim to evolve into institutions/ clusters offering both seamlessly organically, and in an integrated manner by 2030.” Through this initiative, multidisciplinary institutions will develop a holistic educational environment which, as a public good, will suffice for the purpose of education.
• Globally competitive and quality assessment: The policy ensures the inclusion of global education outreach in the education sector, which is a positive step towards India’s international recognition. The proposal for the establishment of a national assessment center, the PARAKH (Performance Assessment, Review and Analysis of Knowledge for Holistic Development), as a standard-setting body within the Ministry of Education indicates that the Government is keen to regularly monitor the education system. The set-up would assist states to ensure standardized assessments of quality. It is considered that legal education requires global competition. In order to achieve various social-economic responsibilities, legal education is required, such as creating future lawyers to establish justice globally. In the same way, in the most desirable move for educational policy, they are adopting global competition to ensure best practices and embracing new technologies for wider access to and timely delivery of justice.
• Social relevance and acceptability: The law as a profession has been losing its relevance with the increase in the unethical actions of legal professionals. The profession has lacked social acceptability and trust, ultimately influencing the trust of the masses in the judiciary. To cover these lacunas, the NEP policy stressed the importance of social relevance and acceptability. The draft stated that the policy relies on the culture and tradition of people, including legal history, literature, and mythology, to accomplish these elements. It states that universities should include in the curriculum the history of jurisprudence, principles of justice, the practice of jurisprudence, and other fundamental values. The initial aim of legal education for budding lawyers would be sufficient to enforce.
To conclude, it is pertinent to mention that the new National educational policy drafted by the Ministry of Human Resource development possesses some of the desired reforms for the sector. It is the complete restructuring of the higher education system through the introduction of a multidisciplinary undergraduate programs. The policy itself tackles various aspects of the education system and if this policy is implemented with full potential, then the country might witness major growth in the educational sector. Talking about legal education, specifically, the above mentions provisions in the policy give an overview that the policy has focused on maintaining and retaining the esteem of legal education with long term goals. The educational programs for lawful examinations must reflect socio-social settings alongside, in a proof based way, the historical backdrop of legitimate speculation, standards of equity, the act of statute, and other related substance properly and enough. It cannot be denied that legal education needed this reform for the longest time, and now that we have a progressive policy, the proper implementation should be emphasized. By and large the NEP strategy on legal education, as the majority of its different arrangements is very similar to a castle in the sky- pleasing to fathom yet unrealistic to be figured out. It changes things scholastically and hypothetically, however to actualize them, in actuality, will be an extremely cumbersome undertaking. This system ought to be proceeded in its spirit to comprehend its points of interest.
Automated Facial Recognition System: Dawn of a new era in policing
Recently on 11st August,2020, the hon’ble UK Court of Appeal (Civil Division) in a case titled ‘R. (Bridges) V. The Chief Constable of South Wales Police’, bearing Case No: C1/2019/2670 rendered a landmark judgement dealing with the interrelation of policing, right of privacy, data protection regime, human rights, public sector equality duty visà-vis the Automated Facial Recognition System (AFR). The hon’ble Court has made pertinent observations which would, undoubtedly, set the tone for its future development in India and worldwide.
The case relates to two events on 21st December, 2017 and 27th March, 2018 at Queen’s street and Defence Exhibition at Motorpoint Arena respectively wherein the South Wales Police (SWP) had deployed AFR for the purpose of surveillance of the visitors/protestors. It was the case of the Appellant i.e. Mr. Edward Bridges that the Police Force had not taken sufficient steps to inform general public about the use of AFR at the area in question thus the same resulted in violation of provisions of different statues viz. section 43 of the Data Protection Act 2018 (DPA), section 149(1) of the Equality Act 2010 (EA Act), noncompliance of Surveillance Camera Code of Practices etc. thus resultantly it was an disproportionate and excessive invasion on the right of privacy of the concerned individuals. He further contended lack of legislative framework regulating the usage of AFR.
The Divisional Court of the Queen’s Bench Division (Lower Court) had dismissed the Appellant’s claim for judicial review challenging the legality of the use of AFR on the two events, however the Appellate Court i.e. Court of Appeal, after extensively discussing the international law on this subject, allowed the appeal and observed that the afore-said two events did in fact in violate the DPA, EA Act and the European Convention on Human Rights. The hon’ble Court observed in Para 152 of the judgement that ‘AFR Locate fails to satisfy the requirements of Article 8(2), and in particular the “in accordance with the law” requirement, because it involves two impermissibly wide areas of discretion: the selection of those on watchlists, especially the “persons where intelligence is required” category, and the locations where AFR may be deployed.’ Further, the Court went on to opine in Para 164 that ‘It is said that there is scientific evidence that facial recognition software can be biased and create a greater risk of false identifications in the case of people from black, Asian and other minority ethnic (“BAME”) backgrounds, and also in the case of women.’
Likewise, in America also the use of AFR has drawn strong flak from various sectors for it being a tool of mass surveillance, lack of adequate statutory framework regulating the use of AFR, encouraging racial profiling etc. So much so that it has compelled several companies to temporarily put a moratorium on its use in America for some time until adequate law in this regard is enacted.
India has also approved the implementation of AFR with the objective of having ‘A robust system for identifying criminals, missing children / persons, unidentified dead bodies and unknown Traced children/persons all over the country…Enhanced ability to detect crime patterns and modus operandi across the states and communicate to the State police departments for aiding in crime prevention’. The National Crime Record Bureau (NCRB), under aegis of the Ministry of Home Affairs (MHA), is the nodal agency overseeing its implementation and is posed to be the world’s largest database of Auto Facial Recognition System in 2021.
Use of AFR: A double-edged sword
Although, the AFR would result in more efficient and productive policing considering that its ability to screen mass gathering of people in matter of few seconds which would be very useful considering that India’s huge population, aid in early and timely identification of any miscreants/history shetters etc. It may be pointed out that the use of cameras for the purpose of surveillance is not something out of the blue; and it has been used and continues to be used in India and abroad at various public places such as Museums, Stadiums, Courts, offices and even at schools and colleges. The advocators of the AFR have often supported their use citing proof of documentary evidence in case of any untoward incident. The hon’ble High Court of Delhi in case titled ‘Daniel George V. Government of Nct of Delhi’, bearing W.P. (C) 7083/2018, is currently hearing a plea seeking removal/ban of CCTVs in Delhi schools and as of now to the best of author’s knowledge no stay has been granted by the Court.
It is very likely that in India also AFR would have to withstand strict judicial scrutiny on several account of several legal, regulatory and policy issues accounts such as its apparent invasion on the right of privacy of an individual which has been time and again been recognized as a fundamental right under the Article 21 of the Indian Constitution (See for example Justice K. S. Puttaswamy V. Union of India, (2017) 10 SCC 1 aka the Privacy case), its interrelation with the yet to be enacted Date Protection Bill, 2019, purported violation of Articles 14, 19, 21 of the Indian Constitution etc. In addition to this, several other pertinent legal questions would also arise as to whether surveillance by AFR/State would satisfy the triple test of legitimate state purpose, existence of corresponding law, proportionality as propounded by the hon’ble apex court in the privacy case, further, whether the use of AFR has the potentiality of turning India into ‘Orwellian State’ is also one of several factors which has to be looked into. Perhaps, one could in this regard take a cue from the recent hon’ble Supreme Court judgement in K. S. Puttaswamy v Union of India (Aadhaar case), (2019) 1 SCC 1, to understand some of the myriad legal and factual aspects which could be an obstruction in the successful deployment of the AFR in Indian sub-context.
The Way Forward
Enactment of a specific legislation on AFR would be correct way foreword which would inter-alia establish a central and a state authority to oversee its nationwide and state-wise implementation in a phased and controlled manner, detailed guidelines on the storage, preservation and security of data etc.
Further, Standard of Procedure (SOP) on the use of AFR could also be prepared after taking into consultations the views of various stakeholders which could inter-alia enlists the manner and extent of publicity of usage of cameras at the proposed site, password protected access to data that too after written consent from a designated authority, automatic deletion of data after a specific period of time etc. The afore-said steps could to a certain extent ally the concerns of infringement of privacy bearing in mind that no fundamental right be it the right of privacy or any other is an absolute right and, if the situation so warrants, it must yield to compelling public and societal interest, thus what is required is a balance of two competing interest i.e. uses of AFR for better Policing vis-à-vis the fundamental rights of an individual.
New Education Policy & gender: It’s time to have the ‘talk’
The Right to Education Act has brought some very positive changes especially in terms of gender
disparity in schooling. But critics have always pointed out the fact that Right to Education as a
Fundamental Right exists till primary schooling years, which is also one of the reasons for children
dropping out drastically after finishing their basic level of education. Therefore, secondary level
education should also be brought under the purview of Right to Education as a Fundamental Right.
The New Education Policy (2020) is the much needed change for our education system.The policy not only aims at doing away with the current practice of rote learning, but also promotes a holistic development of the child. Giving the child a balanced exposure to academics, experimenting and learning as well as co curricular activities. The policy follows a developmental psychology perspective, which means introduction of certain concepts at a certain age will entail a better reciprocity and understanding from the child. It is based on the principles of equity, access, quality and affordability. The aim of the new policy is to put India at par with leading education systems across the world.
The Right to Education, Constitutional mandate and India’s Educational Policies
In Unni Krishnan’s case, the Hon’ble Supreme Court recognized the fundamental right of every child for free and compulsory elementary education up to the age of 14 years. This was later followed by an amendment in our Constitution, with insertion of Article 21-A, making elementary education a Fundamental Right. The Parliament also enacted the Right to Children to Free and Compulsory Education Act in 2009 keeping in mind the Constitutional mandate as well as the social construct of our country. Education is a fundamental right and holds the power to give a structure to an individual, therefore, this Act made provisions to make education accessible for all stratas of society, especially at the grassroots level.
Speaking on the aspect of gender, the prime focus of majority of education policies has always been the “girl child”. It is evident because women, especially girls were in a worse position 50 years prior than today. It is not something to celebrate that we are in a less dire state, but it’s a beginning. If we view through a comparative lens, many households today don’t see girls as a burden, they want them to have a career, educate themselves although gender stereotypes still exist about women being only “homemakers” and caretakers of families, this change is indeed in a positive direction.
The Act has played a pivotal role in increasing girl child enrollment in schools. According to the data collected by the World Bank from 1971- 2013 for primary school enrollment for girl child, the statistics show that there has been an improvement since the Act was implemented. For instance, the entitlement percentage was 47. 538% in 1971 and 91.599. And looking at the statistics from 2009 to 2013 it increased to 93.027%, which is a good sign.
However, the Government policies have been focused towards retaining girl children in schools with schemes like “Beti Bachao, Beti Padhao”, which is a policy with dual goals. Improving India’s child sex ratio and improving girl’s enrollment in schools. In short, the policy aims at celebrating girl child in the country, given the cruel practice of female foeticide that is still prevalent in some parts of our country.
Questions of the “third gender” were considered too stigmatized to be discussed publicly, hence we see a lack of any policy framework at an educational level then. Today, with international awareness, social media platforms, people are initiating a discussion which has led to drafting of laws, various judicial precedents, recognition and dignity they deserve. The New Education Policy, 2020 is one of the pieces of legislation that has formally recognized gender dynamics at an elementary level, which is commendable.
New Education Policy and the pertinent question of diversity and inclusion
Coming to the aspect of gender and the new policy, I feel it will bring in more inclusivity especially for the third gender. Most importantly, it will help in debunking the prevalent gender stereotypes in the society. For instance, the policy lays down that skills like carpentry, coding will be taught from the 6th grade itself. Although it may seem like a normal course to many, but “girls” have never been associated with the art of carpentry, it has always been considered as a manly profession. By including it in the curriculum, girls will also be encouraged to take it up.
Secondly, there is a wide scope for introduction to concepts like gender at a very young age itself. Because, in Para 2.5 of the policy there is a mention of trained volunteers from different social backgrounds and parts of the society. Gender activists from all communities have a huge scope to play a role in allowing the child to understand the difference between gender and biological sex at the earliest. The child is made aware of the spectrum of gender, will not have to deal with “gender dysphoria” or conflict of gender identity, at a later and crucial stage of their life.
For instance, Ms. Kalki Subramaniam , a world renowned transgender activist , authored a book titled, “Teachers’ Guide to Gender non-conforming children.” in a regional language, for promoting better understanding of the concept of gender and how teachers can make a change in the lives of such students by being a source of support and comfort, rather than having an ignorant attitude. Many such activists can play a role in gender education. Another plus point here is that the policy also aims at reviving local languages and culture. Activists from a local region can come together, make textbooks in the local language and impart this essential knowledge, because it is the need of the hour. We as a society cannot shy away from the spectrum of gender, it is as diverse and beautiful as the rainbow. Therefore, we should aim at imparting quality gender education.
Apart from imparting gender education, we also have immense scope for introducing sex education at a young age. Education is the right key to cure any curiosity that may arise when a child enters adolescence.
Thirdly, I feel the policy focuses more on girl child and women. Given the dropout rates of girls from school in India, it aims to provide more support and comfort to girl children. The state of post pandemic education is a question of the near future, however, the pandemic has shown its effect on gender differently. In a recent study conducted by Young Lives, an organization based in the United Kingdom, found that girls from poor households were excluded from access to the Internet (a sample study conducted in Andhra Pradesh and Telangana).
In point three, the policy talks about curtailing the dropout rates at higher education levels. The statistics provided are not gender specific, but still worrisome. The retaining rates keep on decreasing with increase in educational level. The policy mentions that GER for Grades 6-8 was 90.7%, while for Grades 9-10 and 11-12 it was only 79.3% and 51.3%, respectively. A report by Times of India states that 57% of the girls drop out from schools upto Standard XI.
Why is the issue so pertinent for females? The answer lies in our socio -cultural construct itself. Even today, in many parts of India it is not deemed fit for a girl to educate herself. The stereotypes and stigmas are too many, especially at the grassroots levels. Menstruation is one of the main reasons that leads to girls dropping out. A survey conducted by Swachh India, brought to light that 23 million Indian women drop out of school every year when they start menstruating. These statistics are alarming and should act as a wake up call for the society to talk openly about pertinent issues like menstrual health. The policy further talks about the safety of children in context of drug abuse, harassment with special emphasis on girl children.
In furtherance of the above mentioned discussion, the policy also outlines the steps that the Government has to take, one of which is gender balance in admission to Higher Educational Institutions. This will allow for inclusivity at a higher educational level with lesser discrimination.
The Right to Education Act, has brought some very positive changes especially in terms of gender disparity in schooling. But critics have always pointed out the fact that Right to Education as a fundamental right exists till primary schooling years, which is also one of the reasons for children dropping out drastically after finishing their basic level of education. Therefore, secondary level education should also be brought under the purview of Right to Education as a Fundamental Right.
In terms of employment, the policy states special attention will be given to employment of female teachers. It also aims at getting equitable representation of various groups in hiring if faculty, at the higher educational level as well. India has one of the lowest Women Labor Force Participation Rates, only 23.4 % as of 2019. Therefore, the special emphasis on female employment is a given.
Fourthly, the policy specifically states that gender sensitization should be one of the topics that needs to be integrated in the curriculum. This will allow the children to develop a better understanding of the concept. Apart from this, the formation of topical clubs and groups can also be instituted for gender.
For instance ,Gender Champions is an initiative at a higher educational level, by the University Grants Commission. The aim of establishing this committee is to make educational institutions more inclusive and open to having discussions about gender and societal expectations, stereotypes attached with each gender.
Since the policy outlines the point of equitable and inclusive education at the school level, teachers can form small groups with an aim engage students in healthy discussions about issues like gender identity, menstrual health, sex education and the like. This will encourage children to become more self aware. As the teachers play a crucial role in shaping values, it is important to also integrate a training program for teachers that aims at gender sensitization and how they can aid students in understanding their gender identity better.
Although, this may seem utopian at this point of time, given India’s social construct, it is not something that is impossible to achieve. It is a difficult change to bring about, but change can occur with time and Social activists, NGOs, and a driven population can play a big role in bringing about this change.
The policy also aims to set up a Gender Inclusion Fund, which is a rather welcoming move. It aims for providing support to students from all genders and encouraging education for all. An important highlight is that the policy states that all authorities of the school should encourage inclusivity and dignity for all. Acceptance to all genders from authorities at the school level, will pave the way for a healthy educational experience for kids.
The role of social counselors or school counselors shouldn’t be undermined. With proper mechanisms in place, they can be the guiding force in terms of gender awareness and also addressing and resolving issues that stem from lack of inclusivity. This has to be complimented with intensive gender sensitization training and sessions. Some children may identify as a non binary gender after becoming aware that such a phenomenon does exist, however this shouldn’t lead to polarization of attitudes towards these children, especially in a school setting. Which is why, school counselors or psychologists can pave the way for inclusion right at the school level by providing proper counseling, not only to the child, but the peers, parents and teachers as well.
To conclude, the New Education Policy can become the change India needs at present. The implementation of the policy is awaited, but it should be done ideally to achieve all the gias outlined therein. The policy reflects a holistic approach towards development through education, which is different from the model of education India is accustomed to.
The analysis of the policy from a gender lens gives a hopeful image for an inclusive India. The policy rightly aims at bringing change from the elementary level, which will reflect positively in the society. The author understands that it is not easy to do away with gender stereotypes, especially in the Indian context as they have been prevalent since time immemorial. However, with changing trends and increasing awareness, the Indian landscape and societal construct is evolving each day. These stereotypes play different roles in different settings. It is easy for a writer like me and a reader like you to sit in an urban setup and term these practices or thought processes stereotypical, but at the grassroots level they have affected lives in a much more negative manner. This doesn’t imply that urban settings do not have any gender stereotyping. Each struggle needs to be acknowledged and education can become a leveler in this field. Only with right education and better implementation can we bridge this gap. Critically speaking, the policy doesn’t say much about boys or male gender. This isn’t an ideal situation either. Although boys have been at a fairly advantaged position in our social pyramid, they still deserve an equal recognition and policy consideration. Society has spared no one from its stereotyping tendencies. There have been unrealistic expectations set in our society from boys and men. They are made to believe that in baseless stereotypes like “Boys/ Men don’t cry” we are making our future men more devoid of emotions and understanding them. These stereotypes in turn nurture an insensitive attitude. Therefore, the solution also lies in the gender sensitization that the policy envisages. The policy also states that the Gender Inclusion Fund has been set up for girls and transgender students, though boys have a better retaining rate in school, this is no intelligible dofferentia to not include boys to be benefiting from the fund. If the fund says Gender inclusion, it shouldn’t exclude any gender, financial problems can exist for anyone despite their gender.
In Para 6.8 of the policy, there is a mention of how women shape society not only for the present generation but also for future generations, is also a stereotypical thought on the part of policy framers. It is not only women who shape society, as privileged it may sound for women, it is every person of the society that shapes the societal construct. Even though the policy makers don’t want the policy to seem gender biased, it seems so in certain provisions by insertion of the words like “especially the girl child.” It is rather sad that the word transgender appears only once in the entire policy, although the policy is aiming at being gender inclusive. But, when we compare the appearance of other gender terms, the transgender seems rather underrepresented. For instance, The policy outlines provision for taking care of sexual harassment, but again lays emphasis on girl child. What about the remaining genders?
The policy is silent on that aspect. It is no hidden fact that sexual crimes against women have been increasing rapidly, this doesn’t mean the other genders have never faced it. Therefore, if we have a platform which is inviting inclusivity, the wording of this provision could also have been more inclusive as it is a matter of utmost sensitivity.
There are drawbacks to every policy, but it is truly commendable that such level of inclusivity has been enviros ones at the ground level itself. If implemented correctly, the future looks nothing but bright. The children have an opportunity to learn and understand themselves and their peers, which will also increase their emotional intelligence quotient and help them have an open mind to newer spectrums of the world at large.
NGOs, Social activists have a huge scope to bring about change by impairing gender education. Various schools should keep this point in mind and invite various activists and NGOs working extensively in the field of gender for children to understand this concept in the best manner possible.
The dropout rates at higher educational level can also be curtailed by two ways, one is through the legislative process, by making secondary education a Fundamental right as well.
Secondly, the schools should compulsorily along counselors and keep track of students by their attendance rates. If they feel a need for an intervention, they can do so by counseling the child and their parents and understanding their problem. Bi annual gender sensitization programs for teachers, school administrators, caretakers have to be made mandatory for ensuring that no child is mistreated because of revealing his/ her/ their gender identity.
People can conduct awareness drives at local level and educate the community about gender. This will be a form of social priming for the parents who feel that their child is different, or even in cases where they feel their child shouldn’t be educated further. Street plays, door to door awareness drives can help bring a change in societal perception towards education itself.
The new policy comes with a lot of employment opportunities, be it in the form of counselors, special trainers, educators, this should be utilized in the best way possible for a successful implementation of the policy.
The local/ state governments can play a bigger role than the Central Government by appointing volunteers who will keep check whether the policy is being implemented properly. Surprise visit to schools, stricter penalties for non compliance to the policy will aid in creating an inclusive experience at school.
India’s foreign trade: Examining September 2020
Overall imports in April-September 2020-21 are estimated to be $204.12 billion,
exhibiting a negative growth of (-) 35.43 per cent over the same period last year.
Major commodities/commodity groups which have recorded positive growth during September 2020 vis-à-vis September 2019 are other cereals (337.22%), iron ore (109.65%), rice (93.86%), oil meals (47.52%), carpet (42.89%), ceramic products & glassware (36.17%), oil seeds (35.69%), cereal preparations & miscellaneous processed items (33.57%), drugs & pharmaceuticals (24.38%), handicrafts excl. handmade carpet (21.82%), meat, dairy & poultry products (19.97%), Jute mfg. including floor covering (18.64%), cotton yarn/fabs./made-ups, handloom products etc. (15.39%), spices (11.44%), tobacco (11.09%) and RMG of all textiles(10.22%).
India’s overall exports ( Merchandise And Services combined) in April-September 2020-21* are estimated to be USD 221.86 Billion, exhibiting a negative growth of (-) 16.66 per cent over the same period last year. Overall imports in April-September 2020-21* are estimated to be USD 204.12 Billion, exhibiting a negative growth of (-) 35.43 per cent over the same period last year.
I. MERCHANDISE TRADE EXPORTS (including re-exports)
• Exports in September 2020 were USD 27.58 Billion, as compared to USD 26.02 Billion in September 2019, exhibiting a positive growth of 5.99 per cent. In Rupee terms, exports were Rs. 2,02,694.07 Crore in September 2020, as compared to Rs. 1,85,642.32 Crore in September 2019, registering a positive growth of 9.19 per cent.
• Major commodities/ commodity groups which have recorded positive growth during September 2020 vis-à-vis September 2019 are Other cereals (337.22%), Iron Ore (109.65%), Rice (93.86%), Oil Meals (47.52%), Carpet (42.89%), Ceramic products & glassware (36.17%), Oil seeds (35.69%), Cereal preparations & miscellaneous processed items (33.57%), Drugs & pharmaceuticals (24.38%), Handicrafts excl. handmade carpet (21.82%), Meat, dairy & poultry products (19.97%), Jute mfg. including floor covering (18.64%), Cotton yarn/fabs./made-ups, handloom products etc. (15.39%), Spices (11.44%), Tobacco (11.09%) and RMG of all textiles (10.22%).
• Major commodities/ commodity groups which have recorded negative growth during September 2020 vis-à-vis September 2019 are Cashew (-44.25%), Gems & jewellery (-24.67%), Man-made yarn/fabs./made-ups etc. (-9.12%), Mica, Coal & other ores, minerals including processed minerals (-6.71%), Marine products (-5.41%), Leather & leather products (-3.36%), Tea (-2.27%) and Fruits & Vegetables (-1.44%).
• Cumulative value of exports for the period April-September 2020- 21 was USD 125.25 Billion (Rs. 9,38,529.94 Crore) as against USD 159.16 Billion (Rs. 11,13,886.17 Crore) during the period AprilSeptember 2019-20, registering a negative growth of (-) 21.31 per cent in Dollar terms (negative growth of (-) 15.74 per cent in Rupee terms).
• Non-petroleum and Non-Gems and Jewellery exports in September 2020 were USD 21.27 Billion, as compared to USD 19.00 Billion in September 2019, registering a positive growth of 11.94 per cent. Non-petroleum and NonGems and Jewellery exports in April-September 2020-21 were USD 104.51 Billion, as compared to USD 118.65 Billion for the corresponding period in 2019-20, which is a decrease of (-) 11.92 per cent.
• Imports in September 2020 were USD 30.31 Billion (Rs. 2,22,708.15 Crore), which is a decline of (-) 19.60 per cent lower in Dollar terms and (-) 17.18 per cent in Rupee terms over imports of USD 37.69 Billion (Rs 2,68,891.09 Crore) in September 2019. Cumulative value of imports for the period AprilSeptember 2020-21 was USD 148.69 Billion (Rs. 11,14,686.58 Crore), as against USD 248.08 Billion (Rs. 17,35,550.99 Crore) during the period AprilSeptember 2019-20, registering a negative growth of (-) 40.06 per cent in Dollar terms and a negative growth of (-) 35.77 per cent in Rupee terms.
• Major commodity groups of import showing negative growth in September 2020 over the corresponding month of last year are:
CRUDE OIL AND NON-OIL IMPORTS
• Oil imports in September 2020 were USD 5.83 Billion (Rs. 42,812.35 Crore), which was 35.88 percent lower in Dollar terms (33.95 percent lower in Rupee terms), compared to USD 9.09 Billion (Rs. 64,815.60 Crore) in September 2019. Oil imports in April-September 2020-21 were USD 31.86 Billion (Rs. 2,38,995.70 Crore) which was 51.14 per cent lower in Dollar terms (47.60 percent lower in Rupee terms) compared to USD 65.20 Billion (Rs. 4,56,108.64 Crore), over the same period last year.
• In this connection it is mentioned that the global Brent price ($/bbl) has decreased by 34.08% in September 2020 vis-à-vis September 2019 as per data available from World Bank.
• Non-oil imports in September 2020 were estimated at USD 24.48 Billion (Rs. 1,79,895.80 Crore) which was 14.43 per cent lower in Dollar terms (11.85 percent lower in Rupee terms), compared to USD 28.61 Billion (Rs. 2,04,075.49 Crore) in September 2019. Non-oil imports in AprilSeptember 2020-21 were USD 116.83 Billion (Rs. 8,75,690.88 Crore) which was 36.12 per cent lower in Dollar terms (31.56 percent lower in Rupee terms), compared to USD 182.88 Billion (Rs. 12,79,442.35 Crore) in April-September 2019-20.
• Non-Oil and Non-Gold imports were USD 23.88 Billion in September 2020, recording a negative growth of (-) 12.63 per cent, as compared to Non-Oil and Non-Gold imports of USD 27.33 Billion in September 2019. Non-Oil and Non-Gold imports were USD 110.05 Billion in AprilSeptember 2020-21, recording a negative growth of (-) 34.13 per cent, as compared to Non-Oil and NonGold imports USD 167.08 Billion in April-September 2019-20.
II. TRADE IN SERVICES EXPORTS (Receipts)
• As per the latest press release by RBI dated 15th October 2020, exports in August 2020 were USD 16.44 Billion (Rs. 1,22,768.07 Crore) registering a negative growth of (-) 9.88 per cent in dollar terms, vis-àvis August 2019. The estimated value of services export for September 2020* is USD 16.34 Billion.
• As per the latest press release by RBI dated 15th October 2020 imports in August 2020 were USD 9.60 Billion (Rs. 71,662.62 Crore) registering a negative growth of (-) 20.06 per cent in dollar terms, vis-àvis August 2019. The estimated value of service import for September 2020* is USD 9.49 Billion.
III.TRADE BALANCE MERCHANDISE:
The trade deficit for September 2020 was estimated at USD 2.72 Billion as against the deficit of USD 11.67 Billion in September 2019, which is a decline of (-) 76.66 percent. *Note: The latest data for services sector released by RBI is for August 2020. The data for September 2020 is an estimation, which will be revised based on RBI’s subsequent release.
• As per RBI’s Press Release dated 15th October 2020 the trade balance in Services (i.e. Net Services export) for August 2020 is USD 6.84 Billion. The estimated trade balance in September 2020* is USD 6.85 Billion.
OVERALL TRADE BALANCE
• Taking merchandise and services together, overall trade surplus for AprilSeptember 2020-21* is estimated at USD 17.74 Billion as compared to the deficit of USD 49.91 Billion in April-September 2019-20.
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