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SOCIAL MEDIA AND CRIMES: AN ENTANGLED RELATIONSHIP

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“The internet is becoming the town square for the global village of tomorrow.”

-Bill Gates

The internet has been in existence since 1960’s and the World Wide Web (WWW) since 1990’s. The internet has now become all encompassing; it touches the lives of every human being. In today’s time, social media is a well-known name for every person. Merriam-Webster Dictionary defines social media as “forms of electronic communication (such as websites for social networking and micro-blogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos). Now-a-days, no letter or telegram (not a play-store application) is needed to share information. A fast medium to exchange views globally has been evolved in this fast-pacing world. Social Media has radically changed the lives of the people – for good or for bad – is a questionable matter. As social media has become an inevitable part of our lives criminal activities relating to social media has also become an inseparable part of social media. The social media has given the room for criminal activities to flourish in an online mode. No person – be it individuals, government agencies or any other private companies – has been left unconscious with the advantages of social media. However, technology while providing so many perks pose threats to individuals and the world. The creation of a virtual world where people can share information, exchange pictures, become friends, play games, fall in love, fight, etc. without having actually meeting face-to-face is the major reason behind the popularity of social media. The social media has imposed threats on the security, privacy and also the dignity of the people, which has hiked the cyber violence and puts forward a challenging mess at a global level.

SOME STATISTICS TO WONDER

In recent times, there has been a spurt in the number of users of social networking sites, especially due to Covid-19 pandemic. It can be seen from the rise in the Facebook users from 2.45 billion monthly users in 2019 to 270 billion monthly active users by June 2020 with an increment rate of 12% over a year. The International Telecommunications Union estimates that almost 40% of the world’s population and over 76% of people in developed countries are now internet users. According to the Chief of NIA (National Investigating Agency), Alok Mittal, “every sixth cyber-crime in India is committed through social media.” There were around 150 cases of cyber-crimes on social media in our country in 2016, which increased to around 300 cases in 2017. Fraud cases on social media have also increased by 43% in 2018. Approximate 44,546 cases were registered under the cyber-crime head in 2019 as compared to 27,248 cases in 2018. Therefore, a rise of 63.5% was observed in cyber-crimes by National Crime Reporting Bureau. These statistics are worthy of considering the fact that along with an increase in the number of users, there has also been a spike in the cyber-crime cases.

IMPACT OF SOCIAL MEDIA

We are generally aware of the benefits of the internet; however, its anonymous nature allows miscreants to indulge in various cyber-crimes. Taking the positive side into consideration, social networking sites allow users to connect with the families and friends within seconds residing far away from them through audio and video calls, chat-rooms and many other functions provided by it, which helps in bridging the gap between persons. The people can remain updated about the worldly affairs just with a click on their devices. The social networking sites also help in finding and providing appropriate employment and educational opportunities to finders of the same. More importantly, social media is the easiest way to express opinions and views. Therefore, social media makes life accessible and enjoyable for the people.

Nonetheless, keeping negative side in view, social media also leads to social isolation as in face-to-face interaction has become minimal in the times of pandemic. This, in turn, affects the mental, emotional, psychological health of the people and causes anxiety, fear of missing out, depression and many other issues. Privacy, these days, has become a matter of concern. The third party uses the private information of the individuals and commits cyber-bullying and cyber-theft among teenagers. The spread of obscene content on the social media makes the youth vulnerable to these things. They lose their productivity in online chatting all day. Also, the misinformation spreads faster rather than relevant one, which can be for any purpose such as advancing enmity between various ethnic and religious groups or misleading people, and aggravates virtual hate crimes.

Thus, the underlying fact is that social media has become an indispensable part of our lifestyle. And, virtual space, therefore, becomes a relatively new terrain in terms of the questions it raises about human rights and responsibilities.

CYBER-CRIMES: MEANING AND CATEGORISATION

Cyber-crime has not been defined in any statute or rulebook. However, it is a culmination of two terms, that is, cyber and crime. Interestingly, the word ‘cyber’ is slang for anything relating to computers, information technology and internet. And, the word ‘crime’ refers to the commission of an illegal activity. Accordingly, the term ‘cyber-crime’ can be inferred as the offences committed using the medium of computers, cyber-space, world wide web, or internet. Therefore, cyber-crimes involve a computer and a network.

Cyber-crimes are “Offences that are committed against individuals or group of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat-rooms, e-mails, notice boards and groups) and mobile phones (SMS/MMS)”, defines Dr. Debarati Halder and Dr. K. Jaishankar.

Cyber-crimes can be broadly categorized into three groups against which these crimes can be committed, namely, individual, property and government.

• Individual – Cyber-crimes in the form of cyber-stalking, distributing pornography, trafficking and ‘grooming’ can be included under this category. These crimes are rapidly increasing worldwide.

• Property – Just as the traditional theft of property is committed, in the like manner, the stealing of the personal data can be committed over a computer by using malicious software. Cyber frauds and scams are also prevalent these days.

• Government – Cyber-crimes against government involves cyber-terrorism, which can cause devastation to public and create a panicking situation, if criminals get successful in circulating propaganda by hacking government databases. Recent ‘toolkit’ cases also form a part of this category.

Therefore, it can be sought from the above discussion that either the computer may be used for committing the offence, or the computer may be the target.

TYPES OF CYBER-CRIMES

In the National Cyber-crime Reporting Portal, the following types of cyber-crimes have been discussed –

• Social Media Related Crimes

(i) Cyber Bullying/Stalking/Sexting – The attacker uses the internet and other electronic devices to continuously harass the victim. Also, bullying incidents are committed using online communication medium like e-mail, social networking sites, messengers, etc. to exploit, threaten, embarrass and humiliate the victim. Sexting includes sending and receiving of offending sexual words, pictures, or videos via technology, especially mobile phones.

(ii) E-mail Phishing – The recipient is tricked by designing a fraudulent e-mail message to be a legitimate person or organization, so that, the recipient shares personal information including passwords, bank account numbers.

(iii) E-mail and Profile Hacking – A person’s device – computer, laptop or mobile phone – is broken into by the criminal by using a variety of software and gets the access to the person’s sensitive information embedded in the device from remote location. Such information is then misused by the hacker, which causes trouble to the victim of hacking.

(iv) Fake/Impersonating Profile and E-mail – A fake profile of the victim is created in any platform and then the rumours and objectionable material on social media and instant messaging platforms is circulated to cheat or defame the victim or others.

(v) Online Job Fraud – The incident involves deceiving somebody who is seeking employment by alluring them of employment or of earning high salaries or of extra income and then cheat that person by taking money.

(vi) Online Matrimonial Fraud – The fake profiles on various matrimonial websites are created for cheating purposes.

(vii) Provocative Speech and Intimidating E-mails – The perpetrators send provocative and threatening messages on the victim’s devices by e-mail or any other electronic means.

• Online Financial Frauds

(i) Business Frauds/ E-mail Takeover – The monetary frauds are committed by compromising or taking over business e-mails.

(ii) Debit Card/ Credit Card/ E-wallet/ SIM Swap Fraud – Without the knowledge of the card-holder, the fraudulent online transactions take place in their bank accounts through debit or credit cards or e-wallets.

(iii) Fraud Call/ Vishing – These instances involve receiving of fraud phone calls that appears to be from their bank. The caller pretends to be professional bank representative. This is done with an attempt to seek personal information of the receiver such as Customer ID, Net Banking Password, ATM PIN, OTP, Card Expiry Date, CVV, etc. These fraud calls also include fake, lottery or travel scam calls.

(iv) Internet Banking Related Fraud – It is a fraud or theft committed using e-technology to illicitly remove money from a bank account or transfer money to a different bank account.

(v) Cryptocurrency Related Fraud – India is not having any legal framework to deal with cryptocurrencies. Due to this, the criminals operating on the dark or hidden web use these currencies by raising suspicious requests for business transactions in Bitcoins.

(vi) Salami Attacks – To commit financial crimes, these salami attacks are planned. These attacks involve making unnoticeable alterations to facilitate easy concealment so that it would go unnoticed.

• Other Cyber-crimes

(i) Ransomware – It is a type of computer malware that locks the data holding it as hostage on devices such as computers, laptops, mobile phones, etc. Then, the victim will be asked to pay the ransom as demanded by the perpetrator in some cryptocurrency to get the device unlocked without the guarantee of getting the data unlocked even after paying the ransom.

(ii) Cyber-attacks – There are various types of attacks that can be committed by the criminals such as – Denial of Service (DOS) Attack, Virus/Worm Attacks, Malware/Spyware Attacks. Some unknown applications are downloaded on the user’s device, which halts the functioning of the computer system and causes harm to the user.

(iii) Intellectual Property Rights Violation – IPR theft is described as the theft of copyrighted material, the theft of trade secrets and trademark violations. It also includes piracy in which the person violates the copyrights and downloads music, games, movies and software unlawfully.

(iv) Hacking – These incidents involve accessing unauthorized gain from the person’s device without their permission. It also includes website defacement in which the website is attacked that changes the visual appearance of the site or a webpage. It is also known as web-jacking.

(v) Online Trafficking – The incidents of connecting over social media to buy drugs, or other regulated, controlled or banned products, or victim’s recruitment, advertising trafficking such as women, children, laborer, child pornography, selling of organs, etc. are committed using the cyberspace.

(vi) Online Gambling – This is done by providing illegal online gambling links or content through SMS or other messaging platforms such as WhatsApp, Hike, etc.

(vii) Cyber-chasing – It is a process by which a person’s location is provided by using data which is available online. Geotagging has become a trend these days.

Surprisingly, there are ‘n’ number of ways of committing these crimes. The above-mentioned ways are only handful in number by which cybercrimes are committed. To prevent these crimes, India had enacted a legislation way back in 2000’s known as Information Technology Act, 2000.

INDIAN LEGISLATIVE FRAMEWORK

Article 19(1)(a) of the Indian Constitution provides for the ‘right to freedom of speech and expression’, giving citizens the freedom to express their views by whatever medium they think fit. Therefore, the medium can be offline and online. This creates an obligation on the government that “the same rights that people have offline must also be protected online.” Therefore, keeping pace with the changing generation, the Parliament of India enacted the Information and Technology Act, 2000, which was conceptualized on the model of United Nations Commissions on International Trade Law (UNCITRAL) recommended by the United Nations General Assembly (UNGA).

Later, in 2008, the Act was amended giving a new dimension to the IT Laws in the country.

The Act was enacted with an objective “to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.” The Act extends to the whole of India and it applies also to any offence or contravention committed outside India by any person.

The existing IT Act consists of 13 Chapters, having 90 Provisions and 2 Schedules. Out of these 13 Chapters, Chapter XI (Section 65 – Section 78) is of utmost importance as it provides for the offences under the Act. The Act covers the following offences –

The Act provides for a wide range of penalties to be inflicted upon the perpetrators of the above-mentioned offences. Also, the computer and other devices are made liable to be confiscated if contravenes the provisions of the Act under Section 76. Further, the Act has made certain offences compoundable. Section 77A describes that unless the offence has been committed against women, or children below the age of 18 years, or affects the socio-economic conditions of the country, it can be compounded by the competent adjudicating authority if the punishment does not exceed 3 years of imprisonment. The offences punishable with imprisonment of three years and above shall be cognizable and the offences punishable with imprisonment of three years shall be bailable. To investigate cyber offences under the Act, the police officer not below the rank of Inspector, has been given the powers. Interestingly, Section 70A and Section 70B of the Act are worth noticing as they lay out the establishment of National Nodal Agency and Indian Computer Emergency Response Team respectively for ensuring the cyber-security of the country.

Although the IT Act is not all encompassing relating to the offences it covers, but other legislations such as Indian Penal Code, 1860 fulfil the pressing priority.

LANDMARK JUDGEMENTS OF INDIAN COURTS

To trace the evolution of cyber law regime in India, it is apt to refer to the landmark judgments delivered by the Indian Courts. The judgments are provided as under –

• Shreya Singhal v. Union of India

The Hon’ble Supreme Court, in the instant case, dealt with the validity of Section 66A of the IT Act. A petition was filed alleging that Section 66A violated the fundamental right of free speech and expression, thus, challenging its constitutionality. In its decision, the Court reiterated the three concepts of discussion, advocacy and incitement. It observed that “mere discussion or even advocacy of a cause, no matter how unpopular, is at the heart of the freedom of speech and expression.” It was found that “Section 66A was capable of restricting all forms of communication and it contained no distinction between mere advocacy or discussion on a particular cause which is offensive to some and incitement by such words leading to a causal connection to public disorder, security, health, and so on.” Therefore, the Supreme Court of India struck down Section 66A of the IT Act, 2000 in its entirety.

Syed Asifuddin and Others v. State of Andhra Pradesh and Another

In this case, the Court held that a telephone handset covers under the ambit of “computer” as defined under Section 2(1)(i) of the IT Act. The Court, further, stated that alteration of ESN is an offence under Section 65 of the IT Act which provides for the tampering of the computer source document.

• Avnish Bajaj v. State of (NCT) of Delhi

In this case, the three persons were arrested namely – Delhi School-boy, IIT Kharagpur’s Ravi Raj and the service provider Avnish Bajaj – under Section 67 of the IT Act, 2000 and other provisions of IPC, 1860 regarding obscenity. The Court gave a judgment in favour of the service provider Mr. Bajaj stating the fact that he is nowhere involved in the broadcasting of pornographic material. The school-boy was granted bail by Juvenile Justice Board. However, the burden lies on the accused that he was merely the service provider and does not provide content.

• State of Tamil Nadu v. Suhas Katti

This case involved an accused opening a fake e-mail account in the name of the victim and posted defamatory, obscene and annoying information about the victim because of some previous differences between the victim and the accused. A charge-sheet was filed u/s 67 of the IT Act and 469 and 509 of the IPC, 1860. The Additional Chief Metropolitan Magistrate, Egmore convicted the accused person under the said offences. It is a landmark case for its efficient handling and disposal of case within 7 months from the date of filing of FIR.

SMC Pneumatics (India) Private Limited v. Jogesh Kwatra

In this case, due to the lack of direct evidence that defendant was the one who was involved in sending the defamatory, derogatory, vulgar, abusive and filthy e-mails to his employers and to different subsidiaries of the said company, the Court did not give plaintiffs the relief of perpetual injunction as prayed as the Court did not qualify the certified evidence u/s 65B of the Indian Evidence Act, 1872. However, the Court restrained the defendant from publishing or transmitting any derogatory information in the cyber-space about the plaintiffs.

The cases discussed are just a handful of instances of happening of the cyber-crimes. These crimes are exploding all over the country and the world. Despite of inexhaustive nature of the IT Act, the Indian Courts are handling these matters in the best of their capabilities to meet the ends of justice.

THE WAY FORWARD

To cope with the challenges that this techno-savvy world put forward, revamp in the cyber-security has become an absolute necessity. There needs to be a way forward. Some of the suggestive measures that could be taken to enhance security in the cyber-space are as follows-

The proportional growth of cyber-related laws all over the globe is the first and foremost measure that needs to be taken. Due to this disproportionality, the problem aggravates. Yes, the IT Act and amendments in IPC has given India a good start, but complexities in these acts prevail.

As the cyber-crimes know no territorial boundaries, the jurisdiction becomes a debatable problem. Therefore, the concept of territorial jurisdiction under Criminal Procedure Code, 1973 and Indian Penal Code, 1860 needs a re-look.

To prevent the loss of information and evidence, a highly technical staff to build an infrastructure related to e-crimes and investigation is the need of the hour.

Section 75 of the IT Act, 2000 discusses about the extra-territorial jurisdiction of the statute. But this could be made an effective provision only when competent authorities will issue warrants and directions for the sharing of information and evidence regarding cyber-crimes between enforcement agencies.

Along with these measures, to adjudicate the cyber-crimes, the judges having cyber and technology knowledge are exigent. Judiciary plays the role of the mediator in realizing the enactment consistent with the social order.

Finally, simple measures such as using of anti-virus software, avoiding misuse of personal information with any stranger, secured e-payments, not clicking on any unauthorized links, should be adopted by keeping vigilance and awareness intact.

These suggestions are not absolute but can definitely help in tackling cyber-crimes and enhancing cyber-security to some extent. Some reforms in the IT Act and personal awareness can be an aid in checking these e-crimes.

CONCLUSION

Surprisingly, “India was the second most cyber-attacked country in Asia-Pacific in 2020”, read the headline in The New Indian Express Newspaper. This ranking is not a good sign for a country which is having cyber-related laws. These laws are not exhaustive and, therefore, need reforms with the changing need of the hour. The conviction rate in minimal in spite of having stringent laws in the country dealing with cyber-crimes. This is because of the lack of absolute evidences. Therefore, cyber forensics is the new and emerging field and it is encouraged to detect the cyber evidences through appropriate methods. In the country where ‘Media’ is the fourth pillar of democracy, it becomes the responsibility of the media to create awareness among people and not becoming victim of these cyber-crimes itself.

Social Media is a library of information and one of the most easily accessible platform for sharing news, expressing views and spreading propaganda and revolution. It has become the part and parcel of every person’s life. Especially in the times Covid-19 pandemic where everything is happening online, the life is not imaginable without social media and social networking sites. Privacy has just remained a mere nomenclature. Almost all the sites use cookie policy to detect the tastes and preferences of the user. In addition, the incidences of publication of obscene material and the instances like that of ‘Bois Locker Room’ are increasing day-by-day. Thus, it becomes a massive requirement to ensure cyber-security when the world is moving towards a global digitalization.

The moot question of the present paper regarding the analysis of relationship between social media and crimes can be concluded by stating that ‘the relationship between social media and crimes is directly proportional.’ As social media is gaining more and more popularity, the cyber-crime is setting its foot more swiftly and inexplicably.

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Legally Speaking

ARYAN KHAN DESERVES BAIL, NOT JAIL

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“Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of the criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum-the district judiciary, the High Courts, and the Supreme Court to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts must be alive to both ends of the spectrum-the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of media, and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”, the Supreme Court had categorically observed in the Arnab Goswami case a year ago. Not only this, but the Apex Court had also reiterated its view that bail should be a rule and jail an exception. “As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression”, the Court had demonstrated the collective judicial approach regarding grant of bail to the accused persons given the presumption of innocence. Unfortunately, the Special NDPS Court of Bombay forgot these jurisprudential principles when it refused bail to Aryan Khan week.

The Special NDPS Court of Bombay has denied bail to Aryan Khan in a case that is based on weak evidence. It is nothing but a complete departure from the Supreme Court’s guidelines laid down in several cases. Admittedly, Aryan Khan’s innocence or guilt can only be proved through a trial. On 2 October this year, Aryan was detained by the Narcotics Control Bureau in a drug bust on a cruise ship even though no drugs were found in his possession. The NCB has not yet collected any substantive evidence against him except the WhatsApp chats. There is no evidence to suggest that he was consuming drugs at the time of his arrest by the NCB. No blood test was conducted. He has no previous criminal history. The NDPS law distinguishes between a drug consumer and peddler and forbids treating the former as hardened criminals. Sadly, the NCB is treating him like a hardened criminal. The NCB has charged Aryan and his friends with “conspiracy” under the NDPS law without any solid evidence on record. Also, to justify his arrest, the NCB has applied a unique theory of “conscious possession” because it recovered 6-gram charas from his friend. How can the NCB shift the liability to Aryan Khan if his friend has possession of drugs? The term “conscious possession” is not defined under the NDPS Act. The Courts hardly believe this jurisprudence of conscious possession. Thus, the whole case of the NCB is based on WhatsApp chats which can be used only in the trial, not in a bail adjudication. The WhatsApp chats are used by the NCB against Aryan Khan without a certificate under Section 65-B of the Evidence Act. This is why the Court should not rely on WhatsApp chats blindly and should give the benefit of doubt to Aryan Khan.

This is not the first time when the NCB arrested a person relying mainly on WhatsApp chats. The NCB has also done it in some other cases. Last year, the NCB had arrested Rhea Chakraborty in a drug case based on WhatsApp chats. After a month, she was released by the Bombay High Court when the NCB failed to convince the Court to reject her bail application. She was booked under Section 27 A of the NDPS Act, being involved in financing drugs and she had faced a severe media trial. “She is not part of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits”, the High Court had categorically observed while releasing her on her bail. Not only this, but the Bombay High Court had also dismissed the NCB’s charges as “highly disproportionate” and “extremely unreasonable”. The High Court did not approve the NCB’s argument that “celebrities” should be treated harshly and made an example of, saying that no actor must “incur any special liability” in the eyes of the law. It seems the NCB did not take any lessons from Rhea Chakraborty’s case and arrested Aryan Khan without sufficient evidence. Many people believe that he is also paying price for being a celebrity and son of a famous Bollywood actor. This is a dangerous trend that undermines people’s faith in the criminal justice system. Keeping a young man in jail merely based on WhatsApp chats is nothing but a gross misuse of criminal law. Aryan Khan belongs to a well-respected family who deserves bail subject to reasonable conditions. He is a young man who needs to be allowed an opportunity to live a dignified life. Putting him in jail will not serve any purpose. He deserves an opportunity to defend his case being a free citizen and the Court should adopt a humane attitude while dealing with his bail application. In an exclusive interview with India Today, former Attorney-General for India Mukul Rohatgi has also opined that Aryan Khan deserves to get bail.

Given the above discussion, it is submitted that criminal law should not be used as a weapon to harass citizens. All citizens should be treated equally and law enforcement agencies should arrest those who commit criminal offences based on solid evidence, not on inconclusive pieces of digital chats, etc. An arrested person faces a difficult situation in Indian society. The Supreme Court has rightly stated in some cases that a great ignominy, humiliation, and disgrace are attached to arrest. Arrest leads to many serious consequences not only for the accused but also for his family and friends. Mostly, the people do not make any difference between arrest at a pre-conviction stage and post-conviction stage. This is why the arresting power must be used cautiously, not according to the whims and fancies of the law- enforcement agencies and the Courts should decide the bail applications expeditiously. The time has come when the judiciary should stand up for protecting the personal liberty of people and the law-enforcement agencies should investigate the cases professionally. Let me conclude this piece with these insightful words of Justice V. R. Krishna Iyer in the Babu Singh case: “The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserve judicial notice. The whole issue, going by decisional material and legal literature has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as on the expression of ‘judicial discretion’. A scientific treatment is the desideratum. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety, and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process…Personal liberty deprived whom bail is the value of our constitutional system recognised under Article 21 that curial power to negate it is a great trust exercisable, not casually but judicially, with a lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble, decisive of a fundamental right. After all, the personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right”.

Lokendra Malik, Sr Advocate, Supreme Court of India

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Legally Speaking

DECODING THE CONCEPT OF BAIL UNDER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT (NDPS), 1985

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The Narcotics Drugs and Psychotropic Substances Act (NDPS ACT) 1985 was enacted within the year 1985, with a view to consolidate and amend the law concerning narcotic drugs, incorporating stringent provisions for control and regulation of operations concerning narcotic drugs and psychotropic substances.

Bail are often understood as a procedure by which a judge or magistrate sets free someone who has been arrested or imprisoned, upon receipt of security to make sure the released prisoner’s later appearance in court for further proceedings. The money set by the judge is within the sort of a bail, it’s set after hearing the fees and determining the quantity appropriate for the circumstances.

NDPS Act categorizes the offences into Three Categories: –

Small Quantity: –As per section 37 of the NDPS Act, 1985 all the offences falling under the act are cognizable and non-bailable. Meaning thereby, if we pass section 37 of the NDPS Act,1985 even the matters concerning small quantity are non-bailable.Hon’ble Delhi High Court for the first time in Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. on 8 May, 2012 has held that the matter involving small quantity are bailable regardless of the very fact that it’s mentioned within the NDPS ACT, 1985 that each one offences are cognizable and non-bailable.

Intermediate Quantity (less than commercial)

For the offences falling under the intermediate or but commercial quantity stringent provisions of section 37 aren’t attracted and therefore the offences under the said category are governed by Section 437 of the Code of Criminal Procedure,1973 i.e. general principles for grant of bail as applied in other cognizable and non-bailable offences.

Commercial Quantity

Commercial quantity offences are punishable with not but 10 years and there’s an embargo of Section 37 of the NDPS, 1985 in thus far because the bail in commercial quantity is concerned.

THE DETAILED BREAKDOWN OF SECTION 37 IS AS FOLLOWS:

1. The section states every offence punishable under the Act shall be cognizable.

2. No person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity] shall be released on bail or on his own bond, unless the following conditions are met.

3. For granting bail, the following conditions are to be met,

(i) There are reasonable grounds for believing that the accused isn’t guilty of such offence.

(ii) That he’s unlikely to commit any offence while on bail.

The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The scheme of Section 37 reveals that the exercise of power to grant bail isn’t only subject to the restrictions contained under Section 439 of the Code of Criminal Procedure (CrPC), but is additionally subject to the limitation placed by Section 37, which begins with a non-obstante clause.

CONSIDERATIONS FOR GRANTING BAIL UNDER NDPS ACT:

Before granting bail, the Court is named upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence which he’s not likely to commit any offence while on bail, the allegations of the fact, the police report have to be closely examined before recording a finding as to whether the conditions given under the said section, are fulfilled or not.

Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are to be exercised with embargo and conditions as laid down under Sec. 37 of the Act.Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a negative approach and to decline bail but when the legislature have required the court to record a finding of its satisfaction of certain facts, the duty is bestowed upon the court is in positive terms. Grant of Bail could be a rule and its rejection an exception.

GROUNDS FOR CANCELLATION OF BAIL:

What has been stated in Section 37 of the Act would be applicable, accordingly when the question of release on bail is considered. But once an accused has been released on Bail, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which Bail can be otherwise cancelled.The important grounds for cancellation of Bail are:i. Where the accused misuses his liberty by getting involved in similar criminal activity,ii. Interferes with the course of investigation,iii. Attempts to tamper with evidence or witnesses,iv. Likelihood of fleeing, etc.

HOW COURTS HAVE DEALT WITH THE MATTERS PERTAINING TO BAIL?

The bench of DY Chandrachud and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held that, “the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he’s likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and so as to curb the menace of drug-trafficking within the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

In the case of Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798Holding that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act, the Court observed,“The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something quite clear grounds. It connotes substantial probable causes for believing that the accused isn’t guilty of the offence charged and this reasonable belief contemplated successively points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused isn’t guilty of the offence charged.The word “reasonable” has in law the clear meaning of reasonable in reference to those circumstances of which the actor, called on to act reasonably, knows or need to know. It is difficult to offer a particular definition of the word “reasonable”.

In the ultimate analysis it’s a matter of fact, whether a specific act is reasonable or not depends on the circumstances during a given situation. (Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]The court while considering the appliance for bail with regard to Section 37 of the Act isn’t called upon to record a finding of acquitted. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is named upon to ascertain if there are reasonable grounds for believing that the accused isn’t guilty and records its satisfaction about the existence of such grounds. But the court has to not consider the matter as if it’s pronouncing a judgment of acquittal and recording a finding of acquitted.”

CONCLUSION

Section 37 of the NDPS Act works as an interference when it comes to offences related to medicines. It’s necessary because it leads to the creation of fear among people that if they commit a crime under this Act, they won’t be granted bail. On the other hand, this provision occasionally becomes draconian as innocent people get jugged. Therefore, the bar needs to borrow an exemplary principle to insure justice. he Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted with the objective of controlling and regulating the transportation, usage and/or consumption of these illicit substances.

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Let’s analyse the new information technolgy 2021 rules for social media

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INTRODUCTION

Social Media firms in India have to comply with the New Information Technology ((Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 which was released by the Government of India on 21 February, 2021. These rules have been framed in exercise of powers conferred under Section 87 (2) of the Information Technology (IT) Act, 2000.Social Media Firms were given three months to implement these new Information Technology Rules by the Government. In 2000, Information Technology was limited to electronic document, e-signature and digital authentication of records. Social Networking Firms arrived in India in 2005. Internet access at home by people of India has increased since 2010 and the cost of data per Gega Byte was also decreased with the introduction of 4G internet.

There is an urgent need to look into this matter so the Government of India has passed new rules under IT Act, 2000 and introduced Section 69A(2), 79(2)(c) and 87 in the Act. New Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has replaced the IT Rules, 2011. These new IT Rules, 2021 has directed social media platforms to strictly adhere to the guidelines but currently no social media firm has complied with the IT Rules 2021. AS we all know, every action has a positive and negative aspect and similar is applicable in this instance too. This article gives a bird’s eye view on the New IT Rules 2021, its advantages and glaring ambiguities which appears to be in conflict with the fundamental rights and basic principles of a democratic country.

WHY THERE IS A NEED OF NEW INFORMATION TECHNOLGY RULES, 2021

New Information Technology Rules 2021 is set to empower the ordinary social media users and the main goal of the IT Rules are on the protection of women and children, false spreading of fake news and misuse of social media. Social media has become an integral part of an individual’s life.As we all know that, the engrossment of each individual on these social media platforms have massively increased and thereby lead to the emerging of new challenges like offence against women and children, threat to the security and integrity of the state etc.With such a large user base, tech firms cannot afford to overlook new and developing concerns such as the continuing dissemination of false news, widespread abuse of platforms to post manipulated photos of women, deep fakes, and other content that threatns the dignity of a women and poses a security risk. Since 2020, there are around more than 25000 videos of child sexual abuse content which is circulated on the social media platforms.

In India, there is no regulatory authority to monitor and manage the offensive content on the social media firms and hence, the government decided to put these intermediaries on the same pedestal like Press Code and Program Code under CableTelevision Networks Regulation and Central Film Certification Board.Considering such arising difficulties,In Tehseen S. Poonawalla v/s Union of India case, Supreme Court guided the public authority to control and stop dispersal of explosive messages and recordings on different web-based media stages which tend to induce violence or mob lynching. In 2017, Court saw that the public authority may outline essential rules to stop child pornography, rape and rape images,recordings and sites in content hosting platforms and other applications. So, after considering all the concerns and keeping in mind the Supreme Court directions in case laws, Government implemented New Information Technology Rules, 2021 to get rid of these serious concerns.

OVERVIEW OF NEW INFORMATION TECNOLOGY RULES 2021

Government of India made new guidelines under Information Technology Rules 2021 for social media intermediaries as they believed that it was the need of the hour. The new guidelines are:

* Social Media Divided in two groups on the basis of the number of users i.e.

SOCIAL MEDIA INTERMEDIARIES (LESS THAN 50 LAKH USERS)

Significant Social Media Intermediaries(More than 50 lakh users or 5 million registered users.

Here, Social Media companies are referred as Intermediaries as they create link between the people.

* Due diligence to be followed by the intermediaries to be extra cautious that they allow their user to post on their handle.If social media firms don’t follow this guideline then they end up in loosing their immunity under Safe Harbour Provisions defined in Section 79 of the Information Technology Act. Section 79 of the IT Act function both as an immunity and a restrictive provision for social media companies.

*Social Media firms mandatory appoint a Grievance Redressal Officer who will act as a mediator between Government of India and social media. These grievance officer acknowledge any complain received from the government within 24 hours and resolve it within 15 days from its receipt.

*Social Media firms had to ensure online safety and dignity to the users thereby removing or disable the access of content which exposes the private area of an individual or show some individual in partial or full nudity or some sexual act or si in the nature of impersonation including morphed images within 24 hours of receiving complaint. The complaint can be filed either by an individual or any other person on his/her behalf.

* Social Media Firms should appoint a Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer and they should be resident of India. Government had instructed the intermediaries to publish new monthly compliance report which contains all the details about complaints received and action taken.

*Government has instructed Significant Social Media Intermediaries to provide information of the first originator in case if the content which is posted threatns the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material. Social media is bound to give the information of the first originators to Indian Law Enforcement Agencies in these particular cases.

*Government had instructed intermediaries to remove unlawful information upon receiving an court order or being notified from appropriate government if it threatens the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material.

PROS AND CONS OF IT RULES 2021

The new IT Rules also known as the “Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code )Rules , which was issued by the government contains some advantages & some disadvantages. Let’s discuss them in brief.

PROS

IT Rules 2021 curbs the problem which is created by the rapid growth of child pornography, hate speech, spread of misinformation and digital bullying on the platform of Digital World. These rules empowers the government to regulate the uncensored media platforms such as Netflix, Amazon Prime, The Wire, The Print, WhatsApp, Telegram. In order to regulate social media content, the government can ask the platform to disclose the originator of the message as per the new IT Rules. It also removes the bad content and helps people in gaining accurate knowledge through social media and also keeps children away from watching sensitive content which will have negative impact on them. OTT platforms will self-classify contents into five age-based categories: U(Universal), U/A 7+(yrs), U/A 13+, U/A 16+ and A(adult). There will also be parental lock for any content classified as U/A 13+ or above. It provides guidelines for setting up of dispute resolution mechanism for the removal of content. It removes non-consensual intimate pictures within 24 hours and also releases compliance reports to increase transparency.

CONS

One of the main disadvantage of new IT Rules 2021 is that it infringes the fundamental right to privacy of many users on social media platform as it allows the intermediaries to break end-to-end encryption of WhatsApp to track the “first originator “of the information whenever asked by the government under Section 69A of the IT Act[Rule 4(2)]. These rules also curtail the fundamental right to free speech of the digital news media because of the involvement of the government. There is excessive control over digital news and OTT content.

NEW IT RULES VIS A VIS ARTICLE 19 OF INDIAN CONSTITUTION

The new IT Rules 2021 was made with aim to protect citizens from cybercrime and digital bullying, but on the contrary rules end up in violating the fundamental right to privacy and freedom of speech and expression guaranteed under Article 19 of the Indian Constitution. After the New IT Rules were passed Government gave a time period of three-months to comply and share the details of the compliance with the new IT Rules. But some social media platforms and digital news entities are against the law as according to them it violates the privacy of the customers and restricts their freedom of speech and expression. And hence, the case was filed against the Government in the Delhi High Court by Whatsapp on the ground that new rules violates the user’s privacy. Some Digital News Media like The Wire, LiveLaw and The Quint also challenged the new Intermediary Guidelines and Digital Media Ethics Code.

Whatsapp has raised its serious concern regarding the provision of “traceability”. As per the provision, the social media intermediary is required to identify the “first originator of information” of messages when required to do so by the authorities. For this to be done , the intermediaries will have to break the end-to-end encryption, which in turn weakens the security and privacy of its users.

As per, Sec 3 & Sec 4 of the new IT rules, the intermediaries will have to remove the online content when asked by the government through notice. This will violate the right to free speech under Article 19 of the Indian Constitution, as now the government will regulate all online speech & any discussion against government will be muted.

Twitter has also expressed its concern with regard to the violation of free speech by the new rules. It put forth a condition that if the new rules will be guided by principles of transparency and freedom of expression under the rule of law, then only it will comply with the law.

The new IT Rules 2021 has both the positive and negative impacts on the society. But violating the fundamental right to privacy & freedom of speech can hamper the democracy of the country.

New Information Technology Rules 2021 is set to empower the ordinary social media user and the main goals of the IT Rules are the protection of women and children, stop spreading of fake news and misuse of social media. Social media has become an integral part of an individual’s life.

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Enforcement of foreign arbitral awards in India

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Arbitration proceedings in India were primarily governed by three main legislations namely the Indian Arbitration Act 1940, the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act 1961. The purpose of enacting the mentioned legislations was to comply with international standards of recognition and enforcement. This would ensure that India progressed in its goal towards becoming a pro-arbitration regime. Having ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 as well as the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, it was incumbent upon India to enact appropriate legislation to implement the provisions of these Conventions in letter and spirit. This resulted in the enactment of The Arbitration and Conciliation Act, 1996 (hereinafter the Arbitration Act) – the sole statutory instrument governing the recognition and enforcement of arbitral awards in the Indian subcontinent. The comprehensive 1996 Act replaced the previous three legislations and bolstered India’s strategic position as a hub for International Commercial Arbitration (hereinafter ICA).

Arbitration proceedings can often be mired with a number of issues brought about by a conflict in jurisdiction, thereby making unlikely for parties to resort to litigation owing to the complexity of such disputes. The impact of the arbitration proceedings is also determined by the agreement, mutually agreed to by the parties, governing the dispute as well as the powers vested with the tribunal to settle issues related to jurisdiction – where the awards may be recognised and subsequently enforced. Parties to such a dispute are often reluctant to rope in the judiciary of their respective domestic jurisdictions as it would result in a loss of autonomy of the arbitration tribunal to the judiciary. The very purpose of creating such an alternate dispute resolution mechanism was to prevent intrusion by the judiciary. Arbitration was to serve as a forum for the fast-tracked settlement of commercial transactions between (mostly) private parties.

In this article, I shall examine whether the intention of reducing judicial interference in the enforcement stage, of arbitral awards, has remained intact. I shall specifically limit my piece to the 1996 Act that deals with the enforcement of foreign awards in India.

Analysing the scope of International Commercial Arbitration in India

Before delving into judicial trends regarding the enforcement of foreign awards, it is important to mention that Part II of the 1996 Act is following the prescribed guidelines of the New York and Geneva Conventions, thereby effectuating the same. India is not a signatory to any treaty that mandates that the country recognise the enforcement of foreign awards. Had India been a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States [(Washington, 1965) hereinafter ICSID Convention], the circumstances would have been different as it would have to adhere to its provisions and ensure that foreign arbitral awards are recognised and enforced by its domestic statutes.

It is of utmost importance to lay down the purview of ICA and what proceedings and substantial laws can be brought within its scope. ICA refers to arbitral proceedings pertaining to issues emerging out of legal alliances – contractual or otherwise, that are deemed commercial within Indian law or in which at least one of the disputing parties is a person who is now a citizen of, or continually resides in, any nation apart from India; or a corporate entity that is established in any nation apart from India. The Supreme Court, in the case of R. M. Investment Trading Co. Pvt. Ltd. v. Boeing Co, dealt with the parameters defining a commercial transaction. In its judgment, the Court went on to highlight the practice that influences the framework of business relationships, emphasizing that international commerce is more than just the movement of commodities with contemporary complexities. The Supreme Court decided, in accordance with the same reasoning, that a commercial purchase is deemed to be the advisory service for advertising sales and therefore any conflict of this sort arises.

One of the significant benefits of ICA is its cross-border enforceability. In other terms, an award made in one nation can be easily transferred to others and executed. The predominant cause of this convenience of compliance is the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, that has over one hundred ratified states as of today. The New York Convention requires all international arbitral awards to be recognized if they follow such minimum prerequisites.

The term “intervention” may never seem to be sufficient because arbitration is a legal process founded on the sovereignty of the stakeholders and is accepted by statute as an acceptable method of settling conflicts. As a result, the function of the judiciary must be confined to assisting the arbitral tribunal in achieving the goal of resolution. The sovereignty of the stakeholders to consent on the “laws of the proceedings” is perhaps the main basic concept guiding the Model law. This appreciation of the stakeholders’ rights is the culmination of public policy tailored to international practice, as well as the acknowledgement that arbitration is based upon on stakeholders’ arrangement. While it has been identified that judiciary have all the authority to overturn arbitral awards if they violate any constitutional clause, are patently unconstitutional, or violate India’s policy decisions.

Recognition & Enforcement of Arbitral Awards in India

There have been primarily two main distinctions among enforcing an international award and enforcing a domestic award. As previously mentioned, a domestic award would not necessitate a request for compliance. Once the challenges (if any) are overruled, the grant will be executed as a decree of its own. An international award, on the other hand, must go via a compliance process. The group demanding enforcement must submit an appeal for the same. If the court determines that the international award is enforceable, this becomes a court order which is effective as such. Another distinction among the domestic and international regimes is that contrary to domestic awards, there is no allowance for reserving a foreign award. Where it comes to international awards, courts in India can only impose them or fail to implement them; they cannot leave them away. An attempt was made by the Supreme Court to fill this ‘gap’ in the latest decision of Venture Global where the court ruled that it is lawful to set aside an international award in India using the terms of Section 34 of Part I of the Act.

Two conditions must be met in preparation for an international award to be recognized (for the purposes of the Act). First, it should comply with disagreements resulting from a contractual arrangement (whether contractual or not) that is deemed commercial under Indian law. The second scenario is more important: the nation at which the award was granted should be one that the Government of India has designated as a state to which New York Convention extends. Thus far, only just few nations have indeed been told, and so only awards made in those countries are recognized as international awards and legally binding in India.

The reasons for contesting an arbitral award can vary amongst nations. Nevertheless, this does not grant judges in the administering territories concurrent authority. A straightforward interpretation of the Act’s scheme and rules leads to the presumption that such concurrent authority is prohibited in the case of Convention Awards. In the landmark judgment of Bhatia International v. Bulk Trading S.A. and Anr, the parties to a multi-jurisdictional agreement agreed to resolve the disagreement by arbitration under the laws of the International Chambers of Commerce, Paris, with Paris as the lex arbitri. Concerned about the enforceability of Non-Convention Awards, that is, awards that are not recognised for compliance under Section II of the Act, the international party appealed to Indian courts for temporary steps dependent on a provisional award to protect the assets of the Indian applicant to the Arbitration.

In conclusion, the Indian Supreme Court ruled that Part I of the 1996 Act, that provides validity to the UNCITRAL Model Law by granting authority to an Indian judiciary to administer temporary steps notwithstanding the fact that the arbitration was conducted out beyond India, was unconstitutional. Academics and theoretical stalwarts have been outraged by the Supreme Court’s ruling. It has also been asserted that perhaps the Bhatia declaration of court did not provide Convention Awards under Part I. This renders the decision in the Bhatia dispute much more daunting to align with a straightforward interpretation of the law. If national awards are known as non-international awards and international awards are not national awards, the definitions of both domestic and international awards are inadequate. The system of compliance under the Act’s two Parts necessitates a difference among the two awards. Domestic awards which are rendered the focus of proceedings in India pursuant to Section 34 of the Act may be applied as if they were a decision of an Indian Court pursuant to Section 36 of the Act. International Awards should be carried out as a decision by an overseas judge.

It is worth noting that in many recent cases involving an international party, the Supreme Court has reiterated the decision of the Court in Bhatia and maintained that “the requirements of Part-I of the 1996 Act will be equally relevant to enforcement of foreign arbitral awards held beyond India, except some of the said requirements are specifically exempted by arrangement.” These proceedings show the Indian courts’ proclivity to intervene with both national and international arbitral awards. Although this contingency can be avoided, it is likely to incorporate arbitration clauses in the arrangement. Therefore, it is also not relevant if the conditions of dispute there under section 34 of the Act as well as section 48 of the Act are all the same. This debate is important to the legitimate assumption that an international award is legitimate and obligatory upon acceptance by the appropriate agency in India. 

Furthermore, Section 48 (1) (e) of the Act states unequivocally that international awards must be binding under the constitution of the country where even the ‘challenging jurisdiction’ is asserted. This simply indicates a distinction among ‘challenging jurisdiction’ and ‘enforcement jurisdiction’. The regulations pertaining to the legal enforcement of foreign arbitral should address dual public policy objectives: first, restricting the judiciary’s review of the substance of the case and the arbitral tribunal’s decision thereunder in giving effect to the shareholders’ preference of dispute resolution; and the second, indicating the judiciary’s intrinsic supervisory preferences in modifying the arbitral tribunal’s ruling. In the field of multinational business transactions, the former takes precedence over the latter.

The underlying cause of all difficulties in enforcing/challenging awards has resulted from the judiciary’s ever-expanding authority to examine the awards, whether domestic or foreign. Increased judicial intervention, that results in the acceptance of a vast number of claims which could never be heard in the first instance, is another vice which impedes the resolution of business conflicts, thus slowing the country’s economic learning and expansion. Another major drawback that has been raised as a result of the Act’s reading would be that the time frame for enforcing the arbitral award is not specified. By not imposing a deadline on the execution of awards, one discovers that the excessive irregularities in arbitral proceedings are no special from those countless awaiting legal proceedings, thereby undermining the Act’s very clauses. Arbitration is seen as a lengthy legal procedure by the stakeholders and adjudicators, who are often former judges, who rely on lengthy and regular continuances to prolong the process entirely.

Conclusion

The aspects of efficiency and expense are the distinguishing features of the process and are frequently cited as the chief factors of why arbitration significantly outperforms litigation as a viable option for resolving disputes, notably in commercial matters. It should be noted that these flaws have the potential to thwart the advancement of foreign trade and economic arbitration, but with the increasing influx of foreign of industry, this may have a negative impact on our economy. Another way to reduce the chance of judicial interference is to arrange for an approving body, which restricts the participants’ right to appeal to the court system for the nomination under Section I of the Act.

The current era of globalization has resulted in the economy’s market and operational circumstances highlight the benefit of arbitration as a conflict settlement mechanism over lawsuits, particularly in terms of multinational conflicts. The 1996 Act was passed in order to facilitate rapid and premium dispute settlement. A review of how this mechanism works in India shows that arbitration as an entity is still emerging and has not yet been successful in meeting the ever demands of the global market that are essential to commercial growth. A world trade and trade arbitration scheme has been proposed that promotes foreign trade and commerce by decreasing the possibility of future economic conflicts being resolved by national courts. Regardless of the unanswered issues that haunt the proposed model organisation, sensible individuals do not want the hassle of seeing future conflicts resulting from their dealings challenged in court before several rather separate upper ranks, including the arbitral entity, the courts at the seat of the arbitration, and the court at the position of compliance.

It is worth noting that in many recent cases involving an international party, the Supreme Court has reiterated the decision of the Court in Bhatia and maintained that “the requirements of Part-I of the 1996 Act will be equally relevant to enforcement of foreign arbitral awards held beyond India, except some of the said requirements are specifically exempted by arrangement.” These proceedings show the Indian courts’ proclivity to intervene with both national and international arbitral awards. Although this contingency can be avoided, it is likely to incorporate arbitration clauses in the arrangement. Therefore, it is also not relevant if the conditions of dispute there under Section 34 of the Act as well as Section 48 of the Act are all the same. This debate is important to the legitimate assumption that an international award is legitimate and obligatory upon acceptance by the appropriate agency in India. 

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TECHNOLOGICAL INTERVENTION IN CLINICAL LEGAL EDUCATION DURING THE PANDEMIC

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INTRODUCTION

Former Justice Dharmadhikari once said that the “Legal education makes lawyer an expert who pleads for all like the doctor who prescribes for all, like the priest who preach for all and like the economist who plan for all.” However, during the covid 19 legal education has seen the wrath of pandemic and as a consequence from classroom to courtroom has witnessed the new normal that is virtual platform. Legal education which is clinical in nature was adversely affected during the pandemic. However, India’s IT sector and its abilities to bridge the gap that was created by pandemic was effective to deal with the situation.

BACKGROUND OF LEGAL EDUCATION IN INDIA

Laws for the regulation of professional legal education in India are made by the parliament of India with reference to entry 66, 67 & 78 of List I laid down by the Constitution of India, which includes two regulatory bodies which are The Bar Council of India (BCI) as a regulating the standards of the legal profession and The University Grants Commission as an umbrella organization for all institutions of higher education.

The 184th Report of Law Commission of India in year 2002 suggested for harmonious construction of UGC & BCI powers & regulation of legal education in India. All the issue relating to admissions, practice, ethics & standards are addressed by BCI in consonance with state bar councils. The powers of BCI are also envisaged under Advocates Act, 1961 under Section 7 which states that the functions of BCI in India shall be to promote legal education and to lay down standards of such education in consonance with the Universities in India imparting legal education and the State Bar Councils and to recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities.

While exercising the powers given under Advocates Act, BCI has successfully done many reforms in Legal education owing to its dynamic nature and introduction of five years integrated degree program in Law in 1982 was one such step ahead of this transformation. This system has since been gradually adopted in various Universities and Colleges and NLS Bangalore was first to establish the course in 1987. Apart from this, BCI conducts examination for enrollment of advocates in bar. It is also responsible to maintain the essence of legal education by conducting various seminars by eminent jurists, publishing journals of legal interest and most importantly by organizing legal aid to the poor.

LEGAL EDUCATION IN COVID-19 – A SUFFERING BEYOND MEASURE

Education is a machinery which must go on irrespective of the uncertainties which come to its way. The coronavirus pandemic has stretched its tentacles into diverse facets of life. The COVID-19 pandemic has not stopped at national borders. It has affected people regardless of nationality, level of education, income or gender. The education has been hard hit by this pandemic. Legal sector is no exception. In fact, it is the most effected owing to its dynamic nature and has exposed to inherent problems.

A huge misalignment has been seen in resources and needs. The COVID-19 and resultant lockdown pushed the students into the trap of worldwide online learning for the continuity of education. While the educational communities have made concerted efforts to maintain learning continuity during this period, children and students have had to rely more on their own resources to continue learning remotely through the Internet, laptops, mobiles and what not. Teachers also had to adapt to new pedagogical concepts and modes of delivery of teaching, for which they may not have been trained ever.

This online infrastructure lacked where students and various college in rural and underdeveloped areas struggled as they didn’t have any access to these modern and costly affairs of online learning. Students in metropolitan cities adapted as quickly as it was introduced with a little hope of those staying in rural areas. However, there are many institutions, though recognized by the Bar Council of India (BCI), where majority of not so privileged students with bright legal acumen are studying and aspiring to be part of bar and bench. They might have faced a huge problem to access the online classes or may be cannot afford the cost of technology. This digital divide may be attributed to multiple factors – lack of infrastructure in terms of access to internet, absence or dearth of computers in schools, inability of underprivileged students to procure computers, and lack of digital literacy amongst both teachers and students.

CLINICAL LEGAL EDUCATION DURING COVID-19

“Practical training outperforms theories”. This quote by Roscoe Pound – an eminent jurist strikes onto the clinical nature of education in different aspects. Education is a radiance that shows the mankind the right path to move forward.

With the changing trends of legal education, Clinical (Practical) teaching has become an integral part of it in developed countries. Clinical Education becomes integral part of legal curriculum when BCI introduced four practical papers to improve standards in legal education in late 90’s. It was introduced as a kind of extension to the course and classroom teaching but gradually it has emerged as a centre of attraction in legal field. Just like medical, law has also expanded its prospectus to practical training before stepping into the profession. It includes moot courts, real world case studies, Court judgment analysis, Internships. Internships has emerged an easy way out to understand the practical approach of law through Courts, Bars, law firms and Commissions.

According to BCI guidelines, the infrastructure of a law school must include a well-organized library, Computers, internet connections, moot court set-up so that the budding lawyers could make the most out of the subject which is extremely vast and dynamic. Owing to all this, continuing with legal education in Coronavirus stood as a massive challenge all over. The essence of Clinical education was not at all being fulfilled in the pandemic.

TECHNOLOGICAL INTERVENTION IN COVID

Technology has played a vital role throughout the COVID and is serving fuel to all the sectors of economy. During the pandemic, remote learning became a lifeline for education but the opportunities that digital technologies offer go well beyond a stopgap solution during a crisis. The majority of the activity present in this educational category includes teaching, learning, communicating, and transitioning from face-to-face to online. Digital technology offers entirely new answers to the question of what people learn, how they learn, and where and when they learn. Biggest challenge is to utilize this valuable time. Technology seems to be the only answer.

Today around 1.5 billion students are learning online due to the COVID-19 situation across the globe. While schools and colleges are temporarily closed for quarantine, learning continues. It’s just that it is a different kind of teaching. Students are being educated using technology. This is being done through a variety of online courses, electronic textbooks, meeting platforms like Zoom and Google meet and Google Classrooms or other applications. Various webinars were being hosted on various legal topics, various workshops on legal education, national and international seminars through webinars what not even the online internship programmes were offered by legal firms. Also, many legal firms came up to form the structure for conducting online certificate courses on various law subjects. It is true from the contemporary scenario that law teaching is not merely a methodology but technology. Law schools and Universities in future will be constrained to offer e-courses in law.

Gradually, evaluation methods also shifted to online platform. Various law universities developed their own method of examination through online mode by introducing MCQ based evaluation exams rather than subjective, evaluative assignments, developing their own proctored online exam mechanism. More weightage was allotted to internal assessment through various PSDA activities such as moot court presentation, VIVA, project presentation etc. But again, everything comes to its way posing some challenges. In India, we have a diverse set of states and cities, at different levels of income and development. The spread, use and availability of technology is the key, as is the availability of online learning materials, as well as devices and the level of internet connectivity at home. The impact of the challenge is so much that the traditional role of a law teacher is fast reaching extinction. Hence, low key digitalization and uneven distribution of resources became obstacle in the smooth functioning of online education system.

WAY FORWARD: STRENGTHENING LEGAL EDUCATION

The pandemic situation highlights some of the unfortunate reality of legal education. The changing paradigm lead in by the information revolution is bound to place a greater responsibility and pose new challenges on the teacher and the student. The gap that has been created between legal education and practical training needs to be reduced. The need for technology induced revolutionary changes as well as innovative teaching techniques to cover a wide range of topics was posed by pandemic. There is a need to teach not only the domain knowledge but also the skills associated with the profession and most importantly the attitude required succeeding in the profession. E-learning platform needs to be established by legal institutions to bridge existing gap of theory and practice as an all-time substitute for physical learning.

The present pandemic can be treated as a positive time to think, re-think and change the curriculum of legal education at all levels of legal institutions so that the future lawyers would be able to stand as a confident figure before the society and the courts and judiciary also may achieve the objective of becoming “Smart/E-Court and digitization”. No doubt, classroom teaching clubbed with clinical learning serves the best purpose of legal education but there is need for all the stakeholders of the profession to equip with the technology which would in turn raise the standards of legal education. There is a need for regulatory authorities and concerned stakeholders to move forward for the integration of technology and restructure legal education with phenomenal change. Hence, online education cannot be completely kept aside post-pandemic in order to shape it up for new challenges and opportunities.

CONCLUSION

Summing up the discussion, Legal education has come up to be an important facet of society owing to its vibrant nature and its growth all over the world. BCI and UGC being the pivot of the legal area, needs to recognize the opportunity to look into the future and introduce multifarious dimensions to the subject considering possible threats in future. Alike, USA and China who have already indulged into the regular learning through online platform in some ratio to which extent it’s functioning well and have emerged as the inspiration to the world.

This crisis should better be utilized to analyze the shortcomings of mechanism under which legal education functions, demonstrating the areas in which it excels and where it failed. Effective learning out of school has clearly placed greater demands on students’ autonomy, capacity for independent learning, and before that a need to develop reliable and accessible infrastructure for online and remote learning. Hence, it’s time to expand the wings of education beyond the four walls of traditional learning methodology.

Abhinav Kumar is the awardee of ICSSR Special Call for Studies Focusing on Social Science Dimensions of Covid-19 Coronavirus Pandemic. Views expressed is entirely that of the author.

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THE CONSTITUTION OF INDIA: SPEECH IS SILVER, BUT SILENCE IS GOLDEN

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INTRODUCTION

Amidst what is written and said, sometimes there exists a silence which is more significant. The term ‘Constitutional silence’ has been extensively discussed by Lawrence H. Tribe in his celebrated work ‘Invisible Constitution’. In his words contrary to the belief of many, the impact and extent of a written constitution is not very compelling. He further says that many principles which form the constitutional bedrock of America never made it to the text of the nation’s Constitution. Therefore, silence can be comprehended as giving voice to what was left unwritten when the Constitution was drafted and enacted. But these interpretations would never have been rejected by the makers of this hallowed document. Various scholars have described these silences as ‘gaps and abeyances’ and consider it a method of adjudication. In his book ‘The Silence of Constitutions’ Michael Foley calls these abeyances as valuable. These silences are a gold mine because they play a significant role in determining the role of the Constitution as much as the codified components. According to Martin Loughlin, the administration’s desire to remove uncertainties will smother the silences of the Constitution. It is important to appreciate silences because if the silence is done away with a sword of Damocles will hang over the Constitutionalism.

CONSTITUTIONAL SILENCES IN THE INDIAN CONSTITUTION

In words of Justice Benjamin Cardozo, “the generalities of Constitution have a context and a significance that vary from age to age.” The silence in some areas is deliberate. Gaps should simply not be seen as a void space. The Constitution of India is called ‘a living tree’ because it evolves, grows and is capable of adapting itself to the needs and wants of the country. The idealistic and perfectionist approach makes the Constitution a ramrod. Ours is a transformative Constitution therefore the silences are imperative.

The Constitution has been silent on a lot of issues but through judicial interpretation a lot of new rights have emanated. The ambit of the term ‘other authorities’ in Article 12 has expanded leaps and bounds over the years. In the landmark case of Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi, ONGC, LIC and IFC were included in the definition of state.

Article 14 was incorporated to bestow upon the citizens the right to equality and equal protection of law. Now it encompasses the test of ‘manifest arbitrariness’ and every law that is formulated has to be tested on this whetstone. The inclusion of right to press under Article 19(1)(a) is another example. There was a difference in the views of the framers regarding its status. The Constitution remained silent on this so that the future generations can choose to incorporate it if the need be.

Similarly, the Supreme Court of India through its trailblazing judgements has given new dimensions to the Article 21 whose meaning was once constricted only to mere physical existence and personal liberty. Aspects like dignity, education, livelihood, food, shelter, fair trial etc. have been incorporated under the umbrella of ‘life and liberty’. Although these words were nowhere mentioned in the Article but they were the need of the hour. Recently through the K. S. Puttaswamy (Retd.) v Union of India, the right to privacy became an inalienable part of ‘life and liberty’.

Article 156 lays down that the governor enjoys his office at the pleasure of the President. His removal cannot be on whimsical grounds. Doctrine of pleasure is subjected to the principles of Constitutionalism. In B.P Singhal v Union of India, a Constitutional bench laid down certain principles which restrict the removal of governor purely at the will of the President. The reasons for removal have to be compelling. The Articles of the Constitution dealing with the assent by President or Governor to a bill does not stipulate a fixed time period. Only because the constitution is silent it does not mean that one can act capriciously. It has to be done in a reasonable time.

The Basic Structure Doctrine itself was a result of interpretation of this silence by the Supreme Court. The recent examples of the same include the wide interpretation given to the definition of ‘sex’ to include the third gender in the National Legal Services Authority v Union of India. These are a few examples where though the Constitution is silent but the sounds of silence can still be heard. These silences should be filled with constitutional morality and by developing proper conventions and the legislature and the judiciary have been entrusted with this responsibility.

CONCLUSION

The Constitution itself is incapable of speaking like an oracle but its voice can be heard through various judicial interpretations. These silences also enable the legislature to amend the Constitution as per the changing socio-political dynamics of the country. It is not merely the fundamental law of the land meant for doing away with the existing conflicts within a law. Rather it is a document in which the spirit of the nation pulsates. Therefore, the framers of the Constitution left it for the generations to come to interpret the document as per the changing time and much of success can be accorded to these blanks within the Constitution. To conclude the author would like to quote the immortal sentiments of Hidayatullah J. where he says, “more freedom exists in interpreting of Constitution because in domain of Constitutional law there is again and again novelty of situation and approach.”

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