Sonic speed of hustling office goers on a Monday morning, catching a cab, chasing a bus or hopping on to a metro to reach office for uninterrupted long hours of meetings have undoubtedly transformed into a situation one cannot fathom, amidst the lockdown imposed due to infamous contagion of Covid-19. The latest fad of setting a new workplace in the comfort of one’s home is becoming a new norm in the industry. A tangible point to ponder is whether this policy of Work from Home (WFH) is just a transitory aspect or can an element of permanency be added to it in the wake of technological advancements. While tech enterprises in the Silicon Valley such as Twitter, Facebook and many others announced it a ‘forever’ policy, corporations of the likes of Morgan Stanley and Barclays hinted at the notion of mass employment in a single space to be a policy of history. Indian companies are following suit with Infosys mulling over the idea of 50 percent employees working from home even after normalcy is restored. Indian IT/ ITeS behemoths like TCS made a vision statement to move to 75 percent WFH by 2025, while several others evaluating the permanent WFH framework from a business feasibility and organisation cultural change standpoint.
Strategizing the implementation of such an overhauling employee work policy in India for a foreseeable time requires various business considerations and regulatory hurdles to be factored in, especially for IT/ ITeS units in SEZs and STPIs. WFH has been perceived as a restricted privilege to businesses in India that is used with specific conditions only during extra-ordinary times such as Covid19 or as mentioned under SEZ rules. Especially in case of SEZ units, this has been subject to multiple interpretations covered under various circulars and finally made part of SEZ rules. Despite the fact that employees of IT/ ITeS units in SEZs may be entitled to WFH, the duration of such restricted privilege, even in a contingency scenario, is not apparent and tagged with underlying conditions such project mapping to SEZ unit, provision of secured virtual private network or virtual desktop infrastructure and most importantly ensuring export of services from the unit itself. The rules are not much different when it comes to units registered with STPI. While the permissible duration of WFH does not find place in the Handbook of Procedures 2015-21 of FTP, a specific authorization is required stipulating such spell along with other conditions similar to those for SEZ units. Instructions issued by SEZ and STPI authorities to enable WFH during lock-down period were meant only for a transitory period of work from outside. Regulatory provisions concerning WFH as mentioned in FTP and SEZ rules essentially apply to STPI and SEZ units only and a DTA unit does not seem to have any obligation to follow the same.
The foundation of permanent WFH policy wobbles in light of SEZ Act and STPI regulations, not permitting such a business stratagem. Permanent WFH, being an unchartered territory, units operating in STPI may engage in multi-fold steps beginning with initiating discussions with nodal heads on long term approach, seeking clarifications from DGFT by filing suitable forms and applying for relief before the policy relaxation committee. Units in SEZ may follow a similar suit by seeking relaxations from Authorised officer, Development Commissioner or the Board of Approval. Considering the current situation of the economy, it is expected that the Government would reasonably accede to such requests from the industry at large to advance momentum of recovery. In order to put a detailed regulatory framework, amendments in FTP and SEZ Act would be required to align them with the emerging needs of the industry.
Provision of infrastructure to employees plays a vital role in success of such unprecedented program. Although assets such as laptop, computer, monitor, docking station could be procured centrally and allocated to employees, the issue lies with other necessary assets required to bring the work environment to home such as furniture, computer accessories and other small consumables. While one-time cash allowance route brings challenge of capitalization along with tracking the use of assets and retrieving them from employees on separation, central procurement of assets imposes logistical challenges. A closely monitored reimbursement model may be the first step towards achieving the desired results. While juggling with various regulations, withholding tax implications on these benefits needs to be factored-in while designing new policies. Current perquisite tax rules do not favour use of movable assets other than laptops and computers by employees for official purposes and it would be interesting to see as to how the industry forms a view around this aspect considering the underlying intent of usage of such assets for official purposes at employee’s residence.
Income tax holiday benefits claimed by SEZ units, specifically those in the early years of claim, may be put at risk, if the prescribed rules are not followed with utmost caution. With all eyes on emerging permanent WFH trend, income tax holiday claims are likely to go through in-depth scrutiny, thereby increasing risks and complexities of tax audits. Absence of guidance and judicial precedence would make this examination highly fact specific. Demonstration of mechanism of service delivery, thorough flowcharts and networking diagrams could possibly come to rescue. Robust internal IT systems could be inducted to maintain logs and network communication models to ensure compliance with SEZ rules. Impact on financial projections submitted at the time of unit set-up needs to be kept in mind. Transfer pricing complications can, come in too, with respect to permanent WFH, if it brings in change of Function, Assets and Risk analysis. Transfer pricing implications with possibility of pressure on mark-up cannot be ruled out, say for instance, in scenarios where a related party puts additional indemnification clauses in service delivery agreement to ensure data protection or confidentiality on account of permanent WFH, which could lead to a potential change in risk profile. It may be contended during audits that as changed WFH model leads an assumption of additional risk quotient, the service provider is entitled for an added compensation in terms of a higher mark-up. The decisive criteria would actually be to see as to “what-is-done” rather than “how-is-it-done” when analyzing the entire value chain in pre and post permanent WFH scenario. Expenses incurred to facilitate permanent WFH qualifying as business expenses for tax purposes is also likely to be disputed in view of existence of personal element. Where such expenses are reasonable, benchmarked and supported by business reasons, the case may be defendable. The manner of export of services under different regulations pose an enormous challenge concurrently. While STPI regulations stipulate export of software through satellite data communication link, SEZ Act requires secured connectivity, for instance, virtual private network or virtual desktop infrastructure. Entities operating under OSP guidelines are required to operate with Service Providers Provisioned VPN (PPVPN) under WFH situation with pre-defined locations.
Change is the only constant and Covid-19 has forced us to re-think the way we work and lead our lives. As the world embraces the changing global and economic landscape, adaptability and flexibility are paramount to establish a new normal. The Government will have to actively engage with stakeholders to develop a blueprint of legislative changes required to pave the way for transformation that could keep up with disruptive trends. Industry representatives have recognized that WFH culture is here to stay. Apart from SEZ Act and STPI regulations, there is an immediate requirement to re-look at income tax law, state labour laws and guidelines issued by the Department of Telecoms for orchestrating the permanent WFH policy at a large scale.
Suraj Nangia is Partner, Nangia Andersen LLP and Sandeep Jhunjhunwala, is Partner, Nangia Andersen LLP
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MAKING IT HAPPEN: COMBATING PANDEMIC THROUGH PUBLIC-PRIVATE PARTNERSHIP
The recent wave of Covid-19 pandemic spread like a ‘tsunami’ in India. The second wave was worse than the first one. There could be several factors responsible for the huge spike in number of cases and its severity in the second wave as compared to the first, but it was a herculean task for any government to handle a pandemic of such scale and impact.
Among many other things from augmenting medical oxygen to post-covid complications like black fungus, ramping up critical care infrastructure to save lives was one of the major challenges faced by Governments. In this backdrop, Dr. P.S Harsha, an IPS officer was appointed as Nodal officer and head of the Mission on 30th of April to set up 500 ICU beds in each of the 8 BBMP zones.
At the time he was appointed as a Nodal officer, the situation was very challenging. In the first week of May, Bengaluru had about 10,937 beds reserved for Covid-19 patients out of which about 559 beds were ICU beds and about 478 beds were ICU beds with ventilator. When the city was still around 2 weeks away from the peak, more than 95% of the beds were occupied. There was shortage of ICU beds, ventilators faced by most of the hospitals. To make matters worse, there was also shortage of oxygen supply.
The Mission had three main objectives. First, to immediately assess the requirement of critical care infrastructure which broadly included Oxygenated beds, HDU, ICUs. Second, to visualize a feasible operational plan and an implementation structure to create the infrastructure as assessed by experts and relevant departments of the Government tackling the COVID 19 crisis. And, the third, to put up an elaborate action plan with implementation framework delineating clearly the roles and responsibilities of various departments of Government and functionaries involved. To facilitate the above upgradation of infrastructure, ensuring adequate manpower availability is necessary to put up a coordinated effort on the ground.
Karnataka Government adopted a whole-of-government and whole-of-society approach to ramp up health infrastructure on war-footing. The Chief Minister gave a clarion call appealing to corporate sector to come forward and join hands with the government to combat the virus. Bengaluru, home to several marquee MNCs, received overwhelming response to CM’s call and several companies came forward to leverage their CSR initiatives towards Covid-19 relief and rehabilitation efforts. However, coordinating and collaborating with all these agencies and institutions to increase scale and speed was the challenge. In order to reduce the turnaround time and optimize costs it was decided to go ahead with brownfield approach instead of greenfield approach where government identified public hospitals and teaching hospitals attached to medical colleges. The idea was to use existing general beds and convert them into ICU beds, so that the healthcare personnel and other required manpower could be readily made available.
The Indian Institute of Architects, Karnataka Chapter and Columbia Asia Hospitals came forward as technical partners to this mission, for conducting the baseline assessment for the facilities identified for bed augmentation. They agreed to carry out these services pro-bono. A team of senior architects along with experts in the field of hospital design assisted in conducting surveys at the hospital, and preparing the proposal, including cost estimations for the same.
The Confederation of Indian Industry (CII), through its Karnataka chapter and CII Foundation have acted as a conduit to channelize CSR funding from Corporates into healthcare facilities. Also, CII through its foundation has facilitated an institutional mechanism to channelize individual contributions as well to this mission.
As of July 22, 2.82 crore vaccine doses have been administered in Karnataka, the highest among all South Indian states. Initially, due to a lot of rumour mongering, there was vaccine hesitancy. But subsequently, this hesitancy was gone. Print media, TV and hoardings were used to promote vaccination drives. However, what really worked was the reassurance from religious leaders and celebrities. Intervention by the local district administrations that interacts with people on a daily basis also helped in convincing people, even in rural areas. It is expected that the entire population will be vaccinated by the end of the year.
The outcomes of this initiative have been very encouraging. Though the mission has initially started for infrastructure upgradation in the city of Bangalore, there has been tremendous response from districts’ administration to scale up the mission pan Karnataka.
About 1090 beds are at different stages of augmentation, of which 204 beds have already been set up and operational, 390 are under progress and corporates are being tied up for the rest.
About 24 beds have been set up in Jayanagar General Hospital by Embassy and AZU. CV Raman General Hospital has got 56 beds through contribution from 3M, Hitachi, ABB Power Grids and Volvo Group. Another 24 beds are operational in Epidemic Diseases hospital which is set up in collaboration by Embassy Group, McAfee, AXA, Yahoo, Capital Land Swiss Re. In addition, 100 beds have been added at Yelahanka by Boeing, Celko Foundation and KPCL.
The implementation of 190 beds being set up by Texas Instruments, Modulus and Swasti Agency is underway at Rajiv Gandhi Institute of Chest Diseases (RGICD).
Infosys has also provided equipment worth INR 1.5 crore in Anekal General Hospital, KR Puram and Yelahanka General Hospital. Wells Fargo (in collaboration with UnitedWay) is setting up 100 bedded modular hospital at Gadag Institute of Medical Science (GIMS), Gadag. 40 beds are being augmented at Indira Gandhi Institute of Child Health (IGICD) by 3M, Embassy, CII Foundation Swiss Re foundation, ICEMA. Oxygen plant is also being set up at IGICD by Lowes India and Sambhav Foundation. M/s HDFC Bank Limited is undertaking infrastructure upgradation activities at ESI Rajajinagar hospital. Indian American Foundation is setting up 100 beds at Shikaripura Taluk General.Hospital in Shivamogga District. Organisations like M/s Doctors for you, M/s LabourNet, etc., have taken an initiative to partner with the government in bridging the manpower shortages, wherever required.
In addition to the above, infrastructure upgradation activities are in pipeline at various other hospitals like HMT Hospital, Taluk Hospital in Doddaballapur, Devanahalli, Nelamangala and Hoskote and ESI Hospitals in Indiranagar and Peenya, etc. Also, plans are underway to set up Oxygen plants in Kodagu, Shimoga and Gadag districts through CSR mode.
Dr.Harsha and his entire team of dedicated personnel made-it-happen.. The use of CSR funds and the initiative to involve corporate was an outcome of a well-defined strategy by the team. Apart from utilization of CSR Funds, the industry was willing to contribute 50 Oxygen concentrators and 50 non-invasive Bilevel Positive Airway Pressure (BIPAP) ventilators. Such proactive interventions reflect the confidence that the government had built with the industry to augment necessary health infrastructure through the CSR initiative. Government’s decision to take the CSR route to ramp up critical health infrastructure, even as the second wave retreats, reflects the continued focus to ensure preparedness for the third wave.
The initiative taken under the inspired leadership of Dr Harsha has set many benchmarks in public-private cooperation. It also illustrates that there is enormous scope for cooperation between the public and private sectors when it comes to handling a crisis.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
WILL MAMATA’S ALLIANCE GAME PAY OFF?
Politics heats up after Mamata Banerjee’s meeting with Sonia Gandhi; they are giving the slogan ‘Save democracy, save nation’.
Even as Mamata Banerjee went to meet Sonia Gandhi and Rahul Gandhi at their residence during her Delhi visit, I recalled the West Bengal election! For Mamata, it was a matter of political life and death as the Bharatiya Janata Party had left no stone unturned to defeat her. Every trick in the bag was being tried. Mamata Banerjee must have expected that secular parties would support her against the BJP. Of course, the major onus for this was on the Congress, but Sonia Gandhi and Rahul Gandhi did not show any mercy to Mamata.
Congress entered into an electoral alliance with the Indian Secular Front under Pirzada Abbas Siddiqui of Furfura Sharif. It was a great loss for Mamata. It is, however, another matter that it hardly had any effect on Mamata’s electoral fortunes. She returned to power with about 48 per cent of the votes and the Congress ended up with just 2 per cent of the votes and it could not win even a single seat. It is evident that Mamata must have been upset with the attitude of the Congress, but the political maturity she has shown for the sake of opposition unity has only added to her stature. Putting aside her displeasure and the bitterness of the West Bengal elections, she went to meet Sonia Gandhi at her residence where Rahul Gandhi was also present. So Mamata’s message is clear that for opposition unity, she will not mind going to every doorstep where there is a ray of hope. Although she could not meet Sharad Pawar, both of them must have definitely spoken over the phone.
I had written in these columns during the run-up to West Bengal Assembly elections that Mamata Banerjee will return to power after which she will work at the national level. And this has already begun. I perceive a big deal of change in Mamata Banerjee. Certainly she is a well-mannered, very experienced and outspoken politician. Her whole life is a saga of struggle. She has understood the exigencies of time very well. Her maturity is reflected in the fact that on one hand she meets Prime Minister Narendra Modi in Delhi and on the other, she seeks to evolve a strategy for opposition unity. During the press conference, she once again raised the slogan ‘Save democracy, save nation’. Her message to the opposition parties is crystal clear that the need of the hour is unity of opposition parties. This is also her right as a people’s representative. It is crucial to have a strong opposition party in a democracy and this is also a healthy tradition of Indian politics. The country’s first Prime Minister Pt. Jawaharlal Nehru also favoured a strong Opposition. Pandit Nehru also exemplified this by his own conduct. He facilitated the entry of many leaders of national stature inside the Parliament.
Mamata Banerjee may have defeated the Narendra Modi-led BJP in West Bengal, but she knows that without the Congress at the national level, the opposition unity cannot be strengthened. She knows that over the years the Congress has become headless and moved away from the people on the ground, but even today the grand old party has about 30 per cent of the vote share and its roots are spread from villages to cities. And if the Congress wakes up for the better, it will take no time to completely change the political landscape.
Mamata Banerjee also knows that the Bharatiya Janata Party she has pitted herself against has changed completely. It is not the BJP of leaders like Atal Bihari Vajpayee, Lal Krishna Advani or Murli Manohar Joshi. It is now a Narendra Modi-led BJP. Narendra Modi created his own culture in politics. He has become the high command of BJP today. He is the most popular leader of the party. He has also carved out a special place in the RSS, the progenitor of the BJP. Though Modi ji comes from the Sangh Parivar itself, he has a different way of thinking and working. If such Narendra Modi-led BJP is to be wrestled with and defeated at the national level, the different forces opposed to the BJP will have to be united. And this cannot be done without Congress. It is not possible to dislodge Modi ji without Congress on board.
Mamata Banerjee has vast experience in overthrowing the two-and-a-half-decade-old government of the cadre-based Communist Party of India (M) and remaining in power for more than a decade. She is a grassroots leader, a past master at street politics and not afraid to face brute force. She is ready for every battle like a fearless warrior. Certainly, she is packed with confidence and hence if the opposition parties come together, the BJP can be vanquished at the Centre.
Now the moot question is whether Congress is ready for such an alliance? If yes, how would it like to see itself in the alliance? The question also is, if Congress does tag along, will it accept Mamata Banerjee or Sharad Pawar as its leader? Will the regional party leaders like Akhilesh Yadav agree to accept Mamata’s leadership?
The questions are aplenty. The answers to these questions will decide the direction of Indian politics. And the biggest question is will the alliance win the battle against Modi ji with the mere chanting of the slogan ‘Save democracy, save nation’?
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
After defeating the BJP in West Bengal, Mamata Banerjee is exploring the possibility of bringing about Opposition unity but the question is: Will the Congress accept her leadership? And if the alliance is formed, what will be the role of Sharad Pawar? Will the politics of Uttar Pradesh accept Mamata Banerjee as the national leader?
Politics and governance in India: An analysis
Political instability has been a recurring phenomenon in the history of mankind with the fall and rise of political systems or regimes. The term ‘political stability’ means different things to different scholars as there is a lack of consensus among social scientists on its exact meaning.
In the general notions of stability such as social or psychological, economic, cultural and political, political stability is one of the most morally imperative in building the nation state. This article discusses the roots (why, what), past trends of political instability in India. In addition to this the expedient taken to satisfy the salient conditions of successful government or stabilise it. But it had been known since Independence then why is there still political instability? the inter and intra party workers reciprocate or retaliate? Is the balanced approach decisive?
In general the notion of “stability” depends on the social or psychological, economic and political conditions and projecting the ‘trends’ and ‘patterns’ of any nation. Political instability or ‘in’ stability has been a recurring phenomenon in the history of mankind with the fall and rise of the political system or regimes. The term ‘political stability’ means different things to different scholars as there is a lack of consensus among the Social Scientists on its exact meaning. Due to technological advancement, increase in communication and the process of modernisation in the last century has seen significant changes in nature and patterns of political instability. It is not static (government in structure, process, policy making) and keeps changing. That is dynamic. Changing notions about the causes and characteristics of new forms of government, their conceptions, outcomes and cures have been major concerns and components for individuals in formation of the durable or their ideal government. For stability or finding the precise definition of stability depends on the various transparent statistical indicators. Justice Potter Stewart in this view of immorality says that “I know it when I see it.” For that the portrayal should be in a clearer sense on exactly what we are looking for. In the federal system like India, a government at state and center, their ministerial stability is different from each other and to some extent protected from each other. Thus, it can be said that the state may undergo periods of instability while the central government remains stable, as seen in the numerous cases since India’s independence. On the other hand, the state governments may be unstable and ineffective while the central government may be stable as in the Janata period (1977-1980). This instability can have numerous effects with multiple issues or a single issue with an extreme pace of destruction and can be dangerous when it occurs.
According to the Aristotle thought on polity as he divide into the general (monarchy, aristocracy, oligarchy, or democracy) and particular sense to avoid the extremes as in after the fusion of the democratic and oligarchic elements, he intensely disliked both the extreme richness and extreme poverty and believed confidence that powers should be vest with the middle class in the best practicable state (middle class in majority with poor taken together preferably more than the richer class). Professor Maxey criticises Aristotle’s middle class on the ground that “middle-class mediocrity is no shining deal for the foundation of a state.” However this criticism goes to the consonant of Aristotle’s saying that polity is not the best ideal state, rather it is best on the average and practicable. The most stable and administered states have been under the control of the middle class. In this context or a one part for the stability that is the middle class is one of the most important contributions to political thought.
But from where this instability has its roots? The reason for the political instability in India or its main characteristics depends on the various factors such as deepening economic crises, breakdown of a political consensus, improper responsiveness and responsibility, rising expectations, core issues like population explosion (their increased pressures or need of services and other demands), unemployment, casteism (politicisation of caste, improper representation and inequity, caste based violence and politics), poverty and so on. It is in detail in the fifth section of this article.
There are the three components of political stability that are society, regime, and government. These components are interrelated to each other and the extent of the stability depends on all three. The first component in short means the societal demands which are proposed in an orderly and peaceful manner. There can be a violent use that is against the norms associated with democratic polity. It is nearly impossible that there is no use of violence in any political system but the degree is reduced in accordance with the political culture of that particular country. The second component is of a stable regime or a form of government which is long lasting, durable and has a tendency to be stable under the strains and stressful conditions. Where this regime is weak, it leads to dictatorship and military rule. The third component is of government and administration which remains for the specific duration in an office in accordance with the constitution and the flexibility in the government with the legal trends. In brief there should be balance between the policy to be executed and the legal and social forces in the country. For example, The decision-making machinery must be in an adequate constant to allow a sufficient time to execute rational decisions in order to maintain legitimacy of the regime, and keep control over the various social forces of the society.
History of the Political stability of Independent India: The period between 1967 and 1972 has seen a tremendous political instability with the dilution of the one-party dominance that was congress and further formation of the coalition governments. In a broader sense the political stability in the history can be divided into four components, first one-party dominance (for the two decades after the independence) from the first to the fourth general elections (1952-1967 represents a phase of political instability), second the period between the fourth and the fifth general elections (1967-1972 breakdown of a political consensus), third the period between fifth and the sixth general elections (1972-1977 signifies temporary return to calm situation) and lastly the fourth period post-1977 and in the 1980s represents the worst kind of instability, disorder and violence in India. For instance, strike is a legitimate legal protest in most of the democratic institutions but the intensity of it can affect political stability.
WHY IS POLITICAL INSTABILITY?
Population: As the population demands of jobs, services, housing and above all, food place a heavy burden on India’s limited resources. A Population crisis committee finds that “the most stable countries were ones with a lower level of population pressure.” Growing population is a threat to democracy as the potential for political instability correlates with various factors such as “large youth population in overcrowded cities with high expectations and limited opportunities, intense religious factors and oppressive governments which violate human rights.” India’s leaders have been disappointed after the current growth rate of 0.97 percent from 2020 which is indeed harmful for India’s largest democratic survival.
Education: There is a lack of political participation or political consciousness in elections. As the major votes turnout in India is due to the greater capacity of political parties to mobilise the support and the self awareness of the individual as well as rational decision making in choosing their representatives totally depends on education. On the other hand, increased political consciousness is also present which has made people more aware of poverty or their vulnerability to raise voice. As the expectations of the people turn into disappointment these people’s frustration expiates politically, and which turn out to be demonstrations and revolutionary violence that has become a pattern in Indian elections. Hence, it leads to political instability.
Economic growth and corruption: “Economic growth and Political instability are deeply interconnected.” If there is an unstable political environment then it can lead to “less investment and reduce the pace of economic development.” On the other side of the coin, poor economic growth can lead to the breakdown of government and political unrest. Indian Political regimes are fragile because if the country does not worry about the conflicts and radical changes of regimes, the people can focus on working, saving and investing. In today’s world there are many countries that combine the robust factor of corruption with the opposite to the politically stable that leads to the ‘politically stable autocracies’ or unstable democracies.
There is the other perspective (sometimes it is important to normalise the euphoric thing or anything to have a different perspective) that, if there is political stability then it does not allow real competition for the ‘governed elites.’ Political system has a stringent barrier on freedom such as freedom of press, freedom of religion, access to the internet and political dissent and this leads to the abuse of power and corruption. The related issues of political corruption (more about political and economic power) were “use of public office for private gain, where an official entrusted with carrying out a task by the public engages in some sort of “malfeasance” for private benefit.” This can of course happen in the private sector too but it is not a main foundation of our country, no doubt may become that’s another thing. But the current stand gives rise to the “immoral” and “corrupt” transactions in the government sector.
HOW TO STABILISE THE POLITICS OF INDIA
Political thinkers have made substantial contributions to the theory to ascertain some fundamental requirements of political stability. For example, the crucial ones are equitable distribution of wealth, attitude towards the state, equal class structure, appropriate political institutions, etc.
Approaches which can be used for the proper understanding of the political phenomenon in India or stabilise the politics in India are:
Political stability as against a violence: This is the most common view that if there will be absence of violence then the decision making and socio-political changes are properly institutionalised. Dissent is necessary in healthy democracy but through electoral competition rather than the violent process. The motive is to resolve the issues without conflict and aggression within the political system against other individuals and groups of office-holders.
Existence of the legitimate constitutional orders: The legitimacy in the political system to the extent it’s output is accepted as right by the population. There should be no legitimacy disturbance or even if it is disturbed then it should be restored soon to its original state.
Existence of the Multi Dimensional societal attribute: In depth study and cross-national analysis on the aggregate data is important as a purpose of multidimensional attribute. It means that taking society as a multifaceted factors that absence of the several negative indicators such as violence, revolution, political movement against the existing system and the presence of positive indicators such as both constitutional rigidity and flexibility, not only government longevity but also adaptability of the changing social patterns, effective decision making, and more. For Palmer and Stern, political stability can be maintained as“the result of integration and congruence of all phases of traditional life: political, social, economic and ecological.” Ernest A. Duff and John F. McCamant believed that “social and political factors influence political stability/instability of a political system.” They appear to be confused about the stability constituted by societal factors and only suggest that in a stable democracy “welfare must be greater than social mobilisation, and there must be a high rate of economic growth, an equitable income distribution, and broad based institutionalised political party.”
Concluding observations: Each of the conceptual approaches have their own strength and weakness, they have certainly contributed towards the understanding of complex problems of political instability. But a simple application of these approaches cannot help to explain the intricacies and sensitive problem of political stability in Indian states. This leads to the inadequacy of existing theories of political stability which calls for a more realistic approach and takes into consideration the special constitutional features of the working of parliamentary democracy at the state level in India. Thus, the question is how Political stability should be operated? Answer is: It is based on working on both sides equally, the stability of the government in the parliamentary system depends on the support of the representatives in the legislature. If the assembly divided into the political parties and the government become uncertain and the solid state of a government is not established. Hence, a fine balance between the legislature and government is based on the strong institutionalised political institutions.
As written earlier about the three major components of political stability that are “society, regime and government.” The third component that is government is a major source affecting the other two in political stability. Although different socio-ecopolitical cultural, regional and ethnic groups made frequent use of “violent and non-violent methods to exert the pressure on the government to accept their demands.” It even leads to the change in government, but by and large these groups demonstrate their loyalty to political and social regimes. If there is government instability it can majorly affect the other two. But in India no joint attempt has been made by social groups to overthrow political regimes that are parliamentary democratic systems. Balanced approach, interdependence and implementing according to the short-term and long-term situations is a realistical, practicable and theoretical approach. Therefore, it must come after.
Uttar Pradesh Population Bill, 2021: An analysis
India’s population is not really growing at a fast pace as it is made out to be; in fact, as per Census, India’s population has registered a sharp decrease in a span of two decades—population growth rate dropped from 21.54% in 1991-2000 to 17.64% in 2001-2011. Moreover, India’s fertility rate has dropped to 2.3 births per women in 2016 compared to 3.2 births per women in 2000. Also, population growth is not uniform across the nation with a rate varying from region to region. Sikkim, for example, has the lowest fertility rate as compared to Bihar which has the highest in India.
There is one thing India is prominently known for; it’s population, the second highest in the world. And we know that India has never worn population badge proudly. For decades successive governments have tried their best to control population but couldn’t achieve the desired goal.
After the government’s announcement to introduce new population policy for 2021-2030, the Uttar Pradesh State Law Commission on the occasion of World Population Day i.e- 11th July, has released the first draft of the bill aimed at the population control. The draft has been titled as “Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021”. The bill has enlisted incentives for those limiting their families to two children or less. However disincentives or non-adherence to the two-child norm have also been laid down.
As per the law comes in force, there are certain incentives for the public servants, state government employees who voluntarily undergo sterilisation and adopts the two child policy are eligible for two additional increments during the entire service, subsidy towards purchase of plot or house site, soft loans for house purchasing, rebate on charges for utilities such as water, electricity, house tax etc, maternity/paternity leave for 12 months will full salary and allowances, and other such incentives. However non-adherence to the policy might attract disincentives such as debarring from benefit of the government sponsored welfare schemes, limitation of ration card up to four people. Apart from this on enactment of law one violating it shall be ineligible to contest the election to local authority or any body of the local self-government and apply for the government job under the state government. There are several exemptions as well like multiple births out of second pregnancy and adoption. If the first or first two child are disabled then third pregnancy will not be considered as violation. There are also provisions for polygamy and polyandrous marriages as well.
The bill lists out some government duties as well. It states that maternity centre will be established at all the primary health centres, the centres and NGO’s will distribute contraceptive pills, condoms, etc. The family planning methods awareness will be spread through community health workers and ensure mandatory registration of pregnancies, deliveries, births and debts across the state. Also it will be duty of the government to introduce a compulsory subject relating to the population control in all of the secondary schools.
As per the Population Census of 2011, majority of population is between the age of 5 years to 20 years and there have been an exponential increment in its pace since 2011.
India’s population is not really growing at a fast pace as it is made out to be in fact as per census India’s population has registered a sharp decrease in a span of two decades population growth rate went from 21.54% in 1991 to 2000 to 17.64% in 2001 to 2011. Moreover India’s fertility rate has dropped to 2.3 births per women in 2016 compared to 3.2 births per women in 2000. Also population growth is not uniform across the nation with a rate varying from region to region, for example – Sikkim has the lowest fertility rate as compared to Bihar which has the highest in India.
India does have a population control bill if we are to talk about it but it has never been passed. In 2016 and 2019 the population regulation bill was stabled and discussed but it never went to vote. The bill penalizes those having more than two children debarring from political participation, government jobs and even government schemes while India does not have a national law on population control yet individuals states are implementing their own versions of it with most of state laws penalizes families for having more than two children.
Then why the bill has not been passed and is not a law yet?
If the government were to bring in a law to control population, there are number of repercussions it could produce. Firstly during the 1970’s emergency period India Strikes forced sterilization which didn’t go down well. Also the family planning program mostly targeted the poor, some accounts state that men were dragged away forcefully for vasectomies many of whom also died due to complications and unhygienic practices. Secondly we have an example of our neighbouring country China as its one child policy gives a wider glimpse into the ills of adopting such a law. China now struggles with disproportionate numbers of aging population as compared to the younger population. The one child policy also resulted in one of the world’s most skewed sex ratio with 1.15 males for every female in China as per the data available for 2016. While China has since ended the policy but its impact continues to linger. Thirdly China’s concern could be India’s too as the country still has preference for male children. According to Sample registration system SRS report shows that sex ratio at birth in India decreased from 906 females to every 1000 males in 2011 to 899 females in 2018. The normal sex ratio at birth is 950 females to 1000 males. Broadly the primary victims of the Draft Bill will be Indian women in general, of this generation as well as future generation. In many areas already women do not have the option to refuse marriage or to reproduce and several are forced to undergo non-voluntary birth control measures. The 1991 census found that in states which has penalized with more than two children had resulted in men divorcing their wives as soon as they become pregnant with the third child.
These habits will only intensify under a law that passively legitimises such actions, including forced sterilisation, IUD insertion and use of hormonal contraceptives (even when they may be medically inadvisable). Female infanticide will also likely worsen, from the current skew of 909 female births per 1,000 male births.
And lastly the burden of family planning disproportionately falls on women the national family health survey for data shows that out of 47.8% of the total modern contraception used in India 41.6 are for the use of women or bodies with uterus, more than 75 of the overall modern contraceptive used in India is bored by the women while contraception has drastically declined. In an unintended effect, the Bill will ensure the continued marginalisation and erasure of women from public life.
This Bill seeks to revitalize the efforts and provide for measures to control, stabilize and provide welfare to the population of the state by implementing and promoting two child norms. However the basic rule under the Constitution is equality of opportunity for every person in the country. The provisions of the Constitution mandate the State to give preferential treatment to only socially, educationally or economically disadvantaged people. It does not provide for similar reservations on the basis of the birth of the children. UNESCO defines educational discrimination as “any distinction, exclusion, limitation or preference which being based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition or birth has the purpose or effect of nullifying or impairing the equality of treatment in education.”
According to the Draft Bill, if a person acts in contravention of two child policy, then that person shall be ineligible to avail any incentives and shall be subject to disincentives like debarring them from government sponsored welfare schemes and limit upto four will imposed on ration card. It is not specified whether a person will be barred from State welfare schemes or Central welfare schemes. It is open ended clause and implies if a third child is born, he will not be provided with social benefits like right to food, right to housing. There are many welfare schemes that operate under Central government and States are bound to follow and every person who is eligible under Central government welfare schemes cannot be barred. Like Anganwadi and Mid-day Meal schemes. The objective of this scheme is to combat child hunger and malnutrition. The Midday Meal scheme provides food to school children in schools in order to avoid the classroom. hunger, increase school enrollment and address malnutrition. Funding pattern of midday meal schemes is 60:40 between the Central and State governments. It is covered under National food Security act 2013 (NFS) and the state government is bound to implement the NFS act and midday meal scheme. And all children studying in Primary and Upper Primary Classes in Government, Govt. Aided, Local Body, EGS and AIE Centres, Madarsa and Maqtabs supported under Sarva Shiksha Abhiyan and NCLP Schools run by Ministry of Labour are eligible for Mid-Day Meal. Thus, the state government cannot bar the welfare rights of having the right to food to any child as it comes under ambit of the Central government and state government is bound to implement. So, according to the provision of UP population policy if a person does not adhere to the two-child norm policy, the state bars the third child from government welfare schemes. But the State is bound to implement these welfare schemes and eligible persons cannot be barred.
The Draft Bill, especially sections 5, 6 and 7, contemplates additional incentives than the ones prescribed under the general scheme of the bill. Section 5 lays down that public servant who have only one child and who opt for “voluntary sterilization operation upon himself or spouse, in addition to the incentives provided in the usual scheme under the present Bill”. Section 7 is mutatis mutandis to that of its preceding part except it extends to the general public And Section 8 moves a step further and is applicable to the “couple living below poverty line”. The concern that is raised here is that if in the normal course of action and without any due process of law, the state tries to sterilise its citizens to advance the limited child policy as is the general scheme of the present act, it will be unconstitutional on multiple fronts specially violating the right to life and personal liberty under Article 21 of the Indian Constitution.
The state’s fertility rate is 2.7% which is second most in the country after the Bihar which has the fertility rate of 3.2 whereas it should ideally be less than 2.1%.
The estimation is that while India may remain the country with the highest population perhaps even overtaking china one day the population will gradually decrease naturally.
The data states that in Uttar Pradesh there are limited ecological and economic resources at hand hence, it is necessary and urgent that the provision of basic necessities of the human life including affordable food and safe drinking water, decent housing, access to quality education, economic livelihood opportunities, power or electricity for domestic consumption and a secure living is accessible to all the citizens and thus it is imperative to have two-child policy or population control.
According to the Draft Bill, if a person acts in contravention of two-child policy, then that person shall be ineligible to avail any incentives and shall be subject to disincentives like debarring them from government-sponsored welfare schemes and limit up to four will imposed on ration card. It is not specified whether a person will be barred from state welfare schemes or Central welfare schemes. It is an open-ended clause and implies if a third child is born, he will not be provided with social benefits like right to food, right to housing. There are many welfare schemes that operate under Central government and states are bound to follow and every person who is eligible under Central government welfare schemes cannot be barred. Like Anganwadi and Mid-Day Meal schemes. The objective of these schemes is to combat child hunger and malnutrition.
DIMENSIONS OF BUSSINESS ETHICS AND CORPORATE SOCIAL RESPONSIBILITY: BRINGING SOCIAL TRANSFORMATION IN INDIA
This research paper clearly brings about the Concept of Corporate Social Responsibility in much broader terms and also the interlink age with Business and market control. This paper plainly achieves the Concept of Corporate Social Responsibility in a lot more extensive terms and furthermore the interlink age with Business and market control. This paper will feature the vital idea of Business morals and job of CSR in India and advancements made till now. For the most part CSR is the solitary stage with the assistance of which the corporate or the business world location the partners. It is fundamentally the organizations’ sole obligation to deliver a general positive effect on society. CSR is just a full-fledged opportunity for exposure as a firm attempts to look great through different earth or socially amicable activities without rolling out fundamental improvements that will have long haul constructive outcomes.
India isn’t an exception. The concept of CSR isn’t new to India; traditionally speaking, social.duty of corporations is a well-set up phenomenon in India, and the u . s . a . has one of the global’s richest traditions of CSR. In its oldest paperwork, CSR in India covered the idea of corporate philanthropy and the Gandhian Trusteeship version. however the liberalization of the Indian financial system inside the Nineties led to a essential shift from the philanthropy-based version to a multistakeholder technique wherein businesses are deemed chargeable for all stakeholders, inclusive of economic stakeholders, personnel and the community.
It is often said that lets “Treat people as an end, and never as a means to an end.” – Immanuel Kant Globalisation supplemented by innovation has brought many vigorous changes to the nature and outline of the market as well as to its customers i.e. on the one part very own business organisations is heading on the supply side and similarly consumers are heading on the demand side Now generally many companies look for the broader outcome and objectives including financial gain as well.
CONCEPT OF BUSSINESS ETHICS
Now days there are many challenging issues of business ethics that are increasing day by day and its way more important in this globalised world and corporate environment and also the thing which is the centre point of these business rules are the comparative advantage parameter and the way ahead competitive edge and quality of decision making matters a lot in business world .CSR and business both have its own important in this globalised economy In a highly diverse and intensely competitive environment, managers are faced with difficult situations and often have to take tough decisions, which are not only right, fair, and proper but also effective
CHARACTERISTICS OF BUSINESS ETHICS
When we talk about, ethics and its role in business so it is the application of moral and ethical values that is the core of any business foundation. While running a business every business has the code of conduct that has to be complied in terms of financial and social environment to. And generally, if the query in regard to what is right or what can be right or what can be generally wrong is based on every body’s or a person’s priorities that is set and its predefined and along with it there is certain obligation which is connected with the society.
Working in a ethical way means working in a right direction or choosing a right path and identifying the right and wrong in the business. They should not unlawfully use copyrighted materials and processes. Company should also not indulge in bribery.
The various characteristics of business ethics are as follows:-
a) Code of conduct: Business ethics is a code of conduct. It states what to do and what not to do for the welfare of the entire society. Everyone should follow this code who wishes to be the business man
b) Based on moral and social values: Generally, principles of business ethics contain core rules and moral values for business.
BUSSINESS ETHICS IN INDIA
The Indian economy has been under two distinct and diverse forces of “Swadeshi” i.e., buy Indian goods and the need to integrate with the larger world economy. Both forces have significant economic and political implications in the region. Liberalization of the Indian economy in the late 1980s and early 1990s also saw the re-establishment of the transnational corporations on the Indian horizon. There is much need to bring awareness about the need for ecological sustainability that has paved the way for a new generation of business leaders concerned about the responses of the community and sustainability of the environment.
INTRODUCTION TO CSR
From last few years corporate social responsibilities in India has attracted lot of attention of majorly all the countries of the world. The reason for such attention can be understood to its significant nature. Generally India is the first country to statutorily mandate CSR for the corporations fulfilling prescribed conditions. Now all the countries are looking forward and they are vigilant to the way it will be carried forward and how will it bring the drastic changes in India.
Though corporate social responsibility is not something very new, it has existed in our socio-economic system since the ages. Earlier kings were engaged in doing benevolent activities like construction of water reservoir, inns (dharamshalas) for travelers, gurukuls etc.
CSR IN INDIA
CSR under Indian law system has been defined in Generally under Rule 2 of Companies (Corporate Social Responsibility Policy) Rules, 2014 in terms of the activities that companies need to perform according to their strategy. CSR includes activities that promote poverty reduction, environment sustainability, health, education, gender equality, vocational skills development and like others. India’s CSR is based on the triple bottom line (TBL). It is to be clearly understood that CSR today is not charity.
CO-RELATION BETWEEN BUSSINESS ETHICS AND CSR
Today in literature of Academics, these two concepts of business ethics and CSR, Also in the academic literature, there is no space for concurrence of opinions about which concept supersedes the other: for instance, in some cases, business ethics is considered part of corporate social responsibility, whereas in other cases corporate social responsibility is thought to be just one aspect of business ethics. So, is there any relationship between the two academic disciplines? Ethics is defined as the study of what is good or right for human beings. Ethics are generally concerned with the goals and aims that people tend to pursue and the actions they ought to perform.
Corporate Governance is concerned with holding the balance between economic and social goals and between individual and communal goals. The corporate governance framework is there to encourage the efficient use of resources and equally to require accountability for the stewardship of those resources. The aim is to align as nearly as possible the interests of individuals, corporations, and society.
EVOLUTION OF CSR IN INDIA
The roots of corporate social responsibility are deep down the immemorial lane of our past. “Our ancient scriptures also of the view that ‘all that exists in this universe is the abode of almighty’’. Therefore, one should enjoy the good things in life by sharing them with others.” Even our very own rulers of ancient India and rich persons were engaged in doing benevolent activities like construction of water reservoir, inns (dharamshalas) for travelers, construction of schools and wells etc. The emperor Ashoka was known as ‘great emperor’ because he initiated the construction of schools and well, planted trees on both the sides of roads. Thus, he was a great environmentalist of that era.
CURRENT STATUS OF CSR IN INDIA
CSR in India has customarily been viewed as a humanitarian movement. Furthermore, with regards to the Indian custom, it was an action that was performed however not pondered. Accordingly, there is restricted documentation on explicit exercises identified with this idea. Nonetheless, what was plainly obvious that quite a bit of this had a public character typified inside it, regardless of whether it was blessing foundations to effectively taking part in India’s opportunity development and inserted in the possibility of trusteeship.
The Companies Act, 2013 has introduced the idea of CSR to the forefront and through its disclose-or-explain mandate, is promoting greater transparency and disclosure. Schedule VII of the Act, which lists out the CSR activities, suggests communities to be the focal point. On the other hand, by discussing a company’s relationship to its stakeholders and integrating CSR into its core operations, the draft rules suggest that CSR needs to go beyond communities and beyond the concept of philanthropy. It will be interesting to observe the ways in which this will translate into action at the ground level, and how the understanding of CSR is set to undergo a change.
SECTION 135 OF THE COMPANIES ACT 2013
The CREP (Corporate Social Responsibility for Environment Protection) 2003 recognized CSR formally for the first time in India. All such charitable acts, now termed as activities undertaken to discharge a company’s CSR, are characterized by a voluntary urge to “give back‟ to the society. To put it in terms of economics, society understands that free market fails to deliver merit goods such education, health etc. in right quantity and quality.
FORMATION OF CSR COMMITTEE
Every company that meets the net profit, net worth, or turnover criteria of the Act has to constitute a CSR Committee of its Board. The Committee must consist of 3 or more members from the directors of the Company Board. Moreover, at least one of the members of the committee has to be an independent director. While an unlisted or a private limited company is exempted from having an independent director as a member, a private limited firm may have only 2 member directors in the Committee. A foreign firm may have 2 members, comprising of one resident in India [Section 380(d)] and another nominated by foreign firm.
RESPONSIBILITIES OF CSR COMMITTEE
The CSR Committee thus constituted must formulate and recommend a CSR Policy for the company to the Company Board. The CSR Policy must indicate the activities to be undertaken by the company as per Schedule VII (see below), recommend the amount of expenditure to be incurred on the activities, institute a transparent monitoring mechanism for the implementation of the policy, and monitor the CSR policy from time to time.
CSR RESTRICTED ACTIVITIES
All CSR activities that fall under Schedule VII must be undertaken in India alone. Companies may build CSR capacities of their own personnel and/or of the implementing agencies though institutions with established track record of at least three financial years. However, such expenditure is restricted to not more than 5% of total CSR expenditure of the company in a financial year. The CSR policy of the company must also specify that any surplus arising out of the CSR activities shall not form part of the business profit of the company.
BUSINESS ETHICS AND CSR IN NEW ECONOMY
Just as the economic economy gradually evolved from the agricultural economy, therefore the industrial economy is currently giving thanks to the emerging digital economy. within the new economy technology becomes the dominant factor of wealth generation “rather than land, labour and particularly capital”, whereas “information and its proper management through information technology are making the difference and separating the winners from the losers”. within the digital environment the balance of power shifts inexorably from the manufacturer to the buyer .
Author is Academic Tutor & TRIP Fellow, O.P Jindal Global Law School, Sonipat, Haryana, India.
CSR in India has customarily been viewed as a humanitarian movement. Furthermore, with regards to the Indian custom, it was an action that was performed however not pondered. Accordingly, there is restricted documentation on explicit exercises identified with this idea. Nonetheless, what was plainly obvious that quite a bit of this had a public character typified inside it, regardless of whether it was blessing foundations to effectively taking part in India’s opportunity development and inserted in the possibility of trusteeship.
Environmental criminal law: Is it the need of the hour in India?
Even a single thought about the Bhopal Gas Tragedy never fails to send a chill down the spine- this is enough to address the grave consequences of the disastrous activities of the profit-sucking corporations that the people and the environment are exposed to. It is indeed thought-provoking how the gravity of such crimes go unnoticed even if they take the lives of hundreds of people, while an act of murder is seen with great contempt. Are these crimes less than murder? Indeed not. Environmental crimes are a simultaneous murder of not one but many people, and of the environment. The only method to curb such crimes is through a strong legal framework which currently is not up to the mark be it the legal provisions or the judicial pronouncements. The article, therefore, seeks to address and analyse the issues that the liberal perception of this crime raises.
The primary focus has been on analysing the liability of corporations in environmental crimes. To that effect, this article has been divided into four major sections. The first section of the article discusses and describes the concept associated with Environmental Crime. The second section of the article presents a detailed legal analysis of the criminalisation of corporate environmental crimes. The third section of the article highlights the lacunae concerning the incapacity of three legislations, i.e., the Indian Penal Code, the Code of Criminal Procedure, and the Environment (Protection) Act to deal with environmental crimes. The fourth and the final major section of the article based on some of the case laws, analyses the paradigm shift in the judicial trend that the concept of Environmental Crimes in India has gone through.
The term ‘Environmental Crimes’ does not have a universally accepted definition, and is in most instances defined based on the convenience to interpret. The genesis of such an idea can be owed to the deleterious acts/omissions that are responsible for the violation of the environmental law.1 Y. Situ and D. Emmons2 cumulatively put forth the definition as “an environmental crime is an unauthorised act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanction”. According to the United Nations Crime and Justice Research Institute, “environmental crimes encompass a broad list of illicit activities, including illegal trade in wildlife; smuggling of ozone-depleting substances; illicit trade of hazardous waste; illegal, unregulated, and unreported fishing; and illegal logging and trade in timber”.3 Legally speaking, for an act or omission to be categorised as an ‘Environmental Crime’ it should- a) cause direct/indirect damage to the environment, and b) be prohibited by the law.4 These interpretative definitions, though objective, do not suffice in toto. On analysing the proposed array of definitions available, a few shortcomings could be highlighted- firstly, the lack of a universally accepted definition creates uncertainties regarding a common ground for accepting an act as an environmental crime; secondly, the lack of a well-defined area of activities the definition would encompass; thirdly, the jurisdictional and geographical limitations- what is a crime in one nation may not be a crime in the other.
It is per se called a ‘crime’, for it endangers people’s health and causes irreparable damage to the environment. Such long-lasting and grievous harm is bound to have grave consequences not only on the present generation but also on the future generation, undermining the idea of Sustainable Development. It is the disastrous and far-reaching consequential nature of the act or omission that calls for criminal sanctions being associated with an environmental offence. There is no reason acceptable enough that would outweigh the costs over benefits of such heinous acts. As the telos is merely to serve either of the two- a) Corporations, or b) Individuals. These acts are unapologetically used as a means to serve the end of profit-making or financial gain. Corporations, under the veil of capital generation and lucrative business, blatantly ignore environmental and public concerns. Therefore, the present research seeks to deal with the Corporate Criminal Liability that arises out of the Corporate Environmental Crimes committed by industries and corporations.
THE CRIMINALISATION OF CORPORATE ENVIRONMENTAL CRIMES: AN ANALYSIS
There are three kinds of stances that are put forward concerning the corporate liability for environmental crimes.5 First, the traditional view argues that since a corporation does not have a mind of its own, so the criminal act would lack the requisite mens rea, therefore, the corporate bodies cannot be charged criminally. The supporters of this view majorly argue that a corporation though a separate legal personality has no physical existence, therefore, imposing criminal liability would render the punishment of imprisonment meaningless. Some European countries like Germany, Greece, Hungary, Mexico, Sweden, etc., support the traditional view. Second, are the ones who support imposing criminal liability on corporations for the commission of environmental crimes. In this scenario, the corporation and the persons responsible for running the corporation would be held liable personally. Countries like the USA, Australia, Denmark, France, Finland, Netherland, Belgium, United Kingdom, etc., favour this view. Moreover, the International Environment Law contemplates a mandatory obligation on all parties to the convention to incorporate within their domestic law- provisions imposing criminal sanctions on the erring corporations.6 Third, this view is mediatory, which suggests that criminal liability ought to be adopted as a last resort. It is only supposed to be chosen in the cases where the other remedies fail to deter the actions of the offender.
This article seeks to support the second stance- the one of making corporations criminally liable for environmental crimes. To refute the argument put forward by the traditional view- that seeks to not make corporations liable for their criminal activities associated with the environment, the following premises are vital. Corporations are non-physical entities but have a distinct legal persona. Moreover, corporations are run by individuals like the directors, who are said to be the ‘mind of a company’. Oftentimes, the Courts have treated such officers as the mind, body and soul of the corporate body.7 Though legally, it may appear to be a non-physical entity, however, in reality, it is an association of persons. A corporation cannot be run without individuals associated with it. Therefore, it is wrong to hold that a corporation lacks mind and that it cannot have the requisite mens rea to commit a crime. Furthermore, a widely accepted rule of corporate law is the lifting of the corporate veil used to make such offenders personally liable who seek to commit the offence under the guise of the corporation. This rule becomes cardinal while seeking to make the officials of a corporation liable for environmental crimes. The mediatory view of adopting criminal liability as a last resort is certainly not acceptable provided the egregious nature of these crimes and the incapacity of penalty to alone suffice for punishments in such grave cases.
The Bhopal Gas Tragedy of 19848 has come to be known as one of the ‘World’s Worst Industrial Disasters’. The Bhopal plant of Union Carbide Corporation negligently released Methyl Isocyanate and Hydrogen Cyanide gas into the atmosphere. This incident killed at least 3,800 people immediately. The toll of death has risen to an approximate number of 25,000 in the three subsequent decades. This disastrous incident not only took away the lives of many people but also gravely affected the survivors who were present inside the corporation and who resided in its vicinity. Some half a million survivors suffered respiratory problems, eye irritation or blindness, and other maladies resulting from exposure to the toxic gas. Such industrial disasters have an inherently detrimental impact on the people and the environment which continues to haunt in the years to come. In the early 21st century, 400 tons of industrial waste was said to be present on the site of the disaster. This industrial waste has contaminated the soil and the groundwater to an extent that the consumption has led to chronic health problems and birth defects among the inhabitants of the area. This incident has been a major contributor to all three kinds of pollution- air, soil and water.
So, the whole point around emphasising the need for the criminalisation of corporate environmental crimes, a sub-type of white-collar crimes, is because of its inherently vast nature and capacity to cause harm. Industries significantly contribute to polluting the environment in diverse ways- intentional littering, improper disposal of nuclear and hazardous waste, releasing toxic substances into air and water bodies. Most of these above-stated activities are well-known to the officials and are not mere cases of negligence. Such activities not only affect the environment but also affect countless people, rendering them victims of a plethora of respiratory illnesses and other problems. The argument of making the corporations criminally liable for environmental offences gains efficacy in light of the following reasons.9 Criminal sanctions mostly deter violations in ways that are efficient to the other methods of punishment. “Deterrence works best on people who have not had contact with criminal justice and for whom prosecution or even investigation will have severe personal consequences.”10 Corporate officials are known to be a “social group that is exquisitely sensitive to status deprivation and censure”.11 The accusation of a crime would be degrading to their corporate image since the publicity value means a great deal to their job. Criminal sanctions can have certain systematic effects as well, like disqualification of a corporate official may change his attitude towards the environment thereby, reducing the chances of prospective violations by him. Furthermore, on moral grounds, it could be argued that the affluent persons who used to escape liability by affording even heavy penalties would become more responsible towards the environment in the absence of an alternative. Last but not least, oftentimes, the gravity of environmental crimes is so high that such behaviour must only be addressed with the criminal law.
The Statutory Provisions Dealing with Environmental Crimes- An Analysis
The major lacuna that the Indian environmental law suffers from is the lack of the consideration that environmental crimes are serious and may take the shape of even an organised crime12. Such crimes are even lowly ranked in the law enforcement priority list. The Law Commission of India has recurrently recommended that the liberal punishments concerning environmental crimes must be amended to include stricter punishments so that the responsible corporations do not go scot-free.13 There is a wide array of provisions and legislations which have been enacted by the Indian government with respect to environmental protection. Some of the important ones are discussed hereunder:
THE INDIAN PENAL CODE, 1860
Chapter XIV of the Indian Penal Code, 1860 deals with “offences affecting the public safety, health, convenience, decency and morals”.
Section 268 provides for the offence of public nuisance- A person is held liable for the offence of public nuisance if he engages himself in any act/omission which causes- a) common injury, b) danger/annoyance to the public/people in general who live or occupy property in the vicinity, c) necessarily causing injury/obstruction/danger/annoyance to persons who may have occasion to use any public right. Further, Section 290 provides for the punishment of public nuisance with a maximum penalty of two hundred rupees. It is indeed dispiriting to know that the perpetrators of an egregious environmental offence like public nuisance can go scot-free by paying a mere penalty of a maximum of two hundred rupees or even less than that. This penalty can never succeed in deterring the violations towards the environment by the big corporations.
Fouling of the water of a public spring or reservoir is contemplated to be an environmental crime under section 277 of the IPC. Under this section, to voluntarily corrupt or foul the water of any public spring or reservoir is an offence and the person held liable would be punished with imprisonment for a maximum term of three months, or with a maximum fine of five hundred rupees, or with both. Moreover, the making of atmosphere noxious to health is punishable under the IPC under section 278. Under this section, to voluntarily vitiate the atmosphere in any place making it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way is a punishable offence. The offender is bound to be punished with a maximum fine of five hundred rupees.
The above-stated two provisions are directly related to environmental protection as they seek to prevent water and air pollution through a penal strategy. However, firstly, the problem with all these environmental offences is that the nature of punishment is not effective to cause a deterrent effect among the corporations. They are too lenient for offences as big as the ones where, for example, the industries pollute the only source of drinking water and the consumption of which causes mass public suffering.14 Secondly, the effective application of these provisions in achieving the objective of environmental protection is doubtful because the technicalities of Indian criminal law require a complete satisfaction of the ingredients of the offence as stipulated in the penal provisions making the process of delivery of the criminal justice system tedious.
THE CODE OF CRIMINAL PROCEDURE, 1973
Chapter X of the Code of Criminal Procedure, 1973 deals with the “maintenance of public order and tranquillity”. Part B and Part C enumerates provisions relating to Public Nuisance and urgent cases of nuisance and apprehended danger respectively- both relevant to be considered for environmental protection.
Section 133 (Part B) provides for the conditional order for the removal of the nuisance. The District Magistrate/Sub-Divisional Magistrate/Executive Magistrate is empowered to pass a conditional order for the removal of the nuisance on a report by the police officer or based on any other information after considering the evidence (if any). This has been proved to be an effective remedy to resort to abating public nuisance associated with environmental harm.
Section 144 (Part C) provides for urgent powers of the District Magistrate/Sub-Divisional Magistrate/Executive Magistrate to issue an order in urgent cases of nuisance or apprehended danger in situations where a speedy remedy is desirable. This section particularly confers wide powers on the Magistrate to deal with urgent cases of nuisance or apprehended danger.
ENVIRONMENT PROTECTION ACT, 1986
The Environment (Protection) Act, 1986 was enacted in an aftermath of the Bhopal Gas Tragedy and in accordance with the decisions taken at the United Nations Conference on the Human Environment, held in Stockholm in June 1972.15 The Act seeks to provide for protection and improvement of the environment and the prevention of hazards to human beings, other living creatures, plants and property.
Chapter III of the Act provides for the prevention, control and abatement of environmental pollution. The following provisions are relevant to the corporations for environmental protection. Under Section 7 of the Act, the persons carrying on industry operations, etc., are not supposed to emit or permit to be discharged/emitted any environmental pollutants above the prescribed standards. Further, Section 8 provides that a person handling hazardous substances must comply with the procedural safeguards.
The penal provision of the enactment has been incorporated under Section 15 of the Act. This section, in case of contravention of the provisions and rules, orders and directions of the Act, provides for imprisonment of a maximum period of five years and a maximum fine of one lakh rupees. If the contravention is continuing then an additional fine of a maximum of five thousand rupees can be imposed every day. Furthermore, if the contravention exceeds beyond a period of one year after the date of conviction, the punishment can be extended to a maximum period of seven years.
The Act under section 16 provides a specific provision for environmental offences committed by companies. This section very appropriately makes all such persons liable for the offence who were directly in charge of and were responsible to the company for the conduct of the business of the company, as well as the company. Such persons would be held liable and be punished accordingly. However, a person can escape from liability under section 16 if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
THE JUDICIAL TREND
1984- Union Carbide Corporation v. Union of India16 (The Bhopal Gas Tragedy Case): The very fact that in the Bhopal Gas Tragedy (the world’s worst industrial disaster) the Union Carbide Corporation was not held criminally liable suggests that the development of criminal jurisprudence of environment did not start off on the right foot. The UCC was absolutely exempted from the criminal liability and the Court held that the pending criminal prosecution was a separate and distinct proceeding unconnected with the suit from an interlocutory order. Since the Court did not have the power to withdraw the criminal proceedings, it urged to quash the order. “The order of February 15th, 1989 provided: All such criminal proceedings including contempt proceedings stand quashed and accused deemed to be acquitted.”17
1987- M.C. Mehta v. Union of India18 (The Oleum Gas Leak Case): This case is based on yet another instance of the leakage of gas that happened soon after the disastrous Bhopal Gas Tragedy. In one of the units of the Shriram Food and Fertiliser Industries, a major leakage of oleum gas was reported which caused considerable damage to the workers and the people residing in the vicinity of the factory. It was alleged that an advocate also died due to the gas leak. The Court very appropriately sought to hold the chairman and Managing Director and other officers along with the operator and head of the concerned plant personally responsible for this mishap. Such officers have often been treated as the mind, soul, and body of the corporation.19
However, the outcome of this case was particularly disappointing as the Court later decided to change the First Order. Subsequently, the Court ordered that the officials could be exempted from being held responsible if they prove that the escape of the gas was due to an Act of God or vis major or sabotage. On a positive note, the case particularly holds landmark importance in the development of criminal law in environmental jurisprudence and has also led to the incorporation of the tortuous doctrine of absolute liability in India.
1992- Dwarka Cement Works v. the State of Gujarat20: The absence of a strict legal framework provides the chance to the corporations to frame excuses to get rid of their responsibility in environmental offences. This is one such case where the corporation framed a lame excuse to escape liability.
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The Chairman, Director and the General Manager who were involved in the environmental crime contended that there was nothing in the complaint that concerned them with regards to the management of the industry, and, therefore, they could not be personally held liable for the harm caused. However, the Court did not allow their plea on account of their tricks to escape liability.
2003- M.C. Mehta v. Union of India21: This case marked the success of the environmental illuminary Mr M.C. Mehta in the unveiling of criminal sanctions on the respondent of the case. The Supreme Court ordered the respondent to close the hot mix plant unit. However, he alleged that the High Court had approved of his activities. Moreover, when the contempt notice was served on the respondent, he again chose to allege but this time it was the Apex Court, with contumacious statements. Therefore, the SC given the highly contemptuous statements decided ‘to give a strong signal to the respondent so that like-minded people do not repeat the same and such recurrence is thwarted in future’ who was responsible for causing the risk of deleterious effects of air pollution on the health of the society.22 Concerning the criminal sanction- he was punished with one week of simple imprisonment and a fine of one lakh rupees. One week of simple imprisonment seems too liberal for a criminal sanction, however, this case attempted to apply criminal sanction in environmental jurisprudence in a full-fledged manner.
Suggestions and Conclusion
The need of the hour is a shift in the environmental jurisprudence from tortious liability to criminal sanctions for crimes that affect the health and lives of people en masse and irreparably degrade the environment. The Courts must not allow the criminals to go scot-free.
It is high time for the environmental provisions to be amended to- a) include organised environmental crimes as separate and specific offences and b) raise the strictness of the currently liberal penalties.
The wide array of legislation on the environment should be consolidated to form a separate and specific piece of legislation that would precisely provide for environmental offences and their stipulated penalties.
The lame excuses of the corporations continue to take advantage of the weak legal framework and degrade the environment. Therefore, it is highly recommended to allow the full operation of absolute liability in environmental offences.
Considering the heinous, grave and egregious nature of environmental crimes, significant efforts should be made to formulate a definition and classify the acts that would result in environmental crime. The lack of a universally accepted definition, the liberal penalties, the weak legal framework and the absence of judicial activism has exacerbated the consequences of such a crime altogether. All of these lacunae should be given wide importance and be looked at with immense concern. Otherwise, profit-sucking corporations would continue to work in neglect to deteriorate and damage the environment. After all, it is not some temporary damage to the environment but serious, irreversible deterioration that affects not only the present generation but also the generations to come.
1 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ 98 (2011-2013).
2 Y. Situ, D. Emmons, Environmental Crime: The Criminal Justice System’s Role in Protecting the Environment 3 Sage Publications, Thousand Oaks (2000).
3 UNITED NATIONS INTERREGIONAL CRIME AND JUSTICE RESEARCH INSTITUTE, http://www.unicri.it/topics/environmental (last visited June 29, 8:23 PM).
4 Stuart Bell, Donald McGillivray, Environmental Law 254 Oxford University Press (2008).
5 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ 98 (2011-2013).
6 The Resolutions of the XVth International Congress on Penal Law, (Rio) Res. 12, 14 and 20, 1994.
7 Moore v. Brester, (1944) 2 All ER 515; Tesco Supermarket Ltd. v. Nattrass, 1972 AC 153.
8 BRITANNICA, https://www.britannica.com/event/Bhopal-disaster (last visited June 29, 8:23 PM).
9 Joseph F. Dimento, Criminal Enforcement of Environmental Law, 525 The Annals of the American Academy of Political and Social Science 134-146 (2013).
10 Greider, Fines Aren’t Enough: Send Corporate Polluters to Jail, Rolling Stone 46 (1984).
11 Susan Hedman, Expressive Functions of Criminal Sanctions in Environmental Law, 59 Geo. Wash. L. Rev. 889-99 (1991).
12 Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652; Indian Council For Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.
13 The Report of the Law Commission of India (Forty-first) 1969; The Report of the Law Commission of India (Forty-seventh) 1972.
14 Vellore Welfare Citizen Forum v. Union of India, AIR 1996 SC 2715.
15 Environment (Protection) Act, 1986, No. 29, Acts of Parliament, (1986) India.
16 Union Carbide Corporation v. Union of India, AIR 1992 SC 248, 281.
18 M.C. Mehta v. Union of India, AIR 1987 SC 965.
19 Moore v. Brester, (1944) 2 All ER 515; Tesco Supermarket Ltd. v. Nattrass, 1972 AC 153.
20 Dwarka Cement Works v. State of Gujarat, (1992) 1 Guj L Her 9.
21 M.C. Mehta v. Union of India, (2003) 5 SCC 376.
22 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ (2011-2013) 98.
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