Tax certainty is the foundational principle of a conducive tax jurisdiction. Uncertainty is bound to arise in any tax jurisdiction – whether it be issues arising out of legislation, implementation or interpretation. But what makes a tax jurisdiction stand out as conducive to businesses in comparison to others is the efficiency and effectiveness of its dispute resolution mechanism. No business would be comfortable to invest huge amounts in a tax jurisdiction where 8-10 years is the average period for conclusion of a tax dispute. Clear tax policy and a non-adversarial tax administration is a pivotal factor for any country to be considered as a preferred tax jurisdiction. Therefore, the situation of tax litigation becomes relevant.
India, as we know, is infamous as a complex tax jurisdiction and for huge pendency of tax litigation. If we look at the statistics of the pending cases, the numbers have only increased over the years. In Direct Tax domain itself, the pendency of cases at various appellate levels has increased from 3.86 lacs cases as of 2016 (as per the CBDT Committee Report dated 05.09.2016 on Litigation Management) to 4.83 lacs cases as of 2020 (as per Finance Minister’s Speech on Union Budget 2020-2021). In the Indirect Tax domain, the Government claims that the ‘Sabka Vishwas Scheme’ has helped resolving around 1.9 lacs cases and reduced the litigation pendency by 60% but one cannot lose sight of the litigation generated from the scheme itself.
Pendency of cases is a quantitative aspect. It is equally important to test our progress qualitatively as a tax jurisdiction. While the Indian tax judiciary has contributed tremendously to the jurisprudence in the international tax discipline, but our tax judiciary is still plagued with futile and repetitive issues that makes it evident that we have not matured as a tax administration.
The Government’s vision towards rising the ranks on the Ease of Doing Business List and the resolve to foster a non-adversarial tax regime to attract more investment in the economy is not consistent with the adversarial mindset of the tax authorities on the implementation front and to some extent, even with the tax policies and legislation. This is also one of the reasons why several efforts of the Government, from time to time, towards reducing tax litigation and towards speedy disposal of pending litigation have failed. What India most crucially requires is a change in the mindset of its Tax Authorities. Courts have rightly and consistently pointed out that a tax litigation is not equivalent to a lis or dispute between two parties in a civil litigation. The tax authorities and the taxpayers are not adversaries in a civil litigation, rather tax litigation, including appeals, is merely an administrative act of adjusting the taxpayer’s tax liability. This difference ought to be understood and practiced in the right spirit by the tax authorities.
There are certain issues in both direct and indirect tax domains discussed below which are worth highlighting to understand where the Government and the tax authorities have failed us as a tax jurisdiction.
Failure on the Tax Policy Front
The goods and services tax (GST) regime which was introduced in India with effect from 01st July, 2017 with the objective to achieve simplification in the existing tax regime, widening of tax base, and most importantly, to mitigate the cascading effect of various indirect taxes by way of subsuming different kinds of indirect legislations. With the above introduction, it was promised by the Government of India that this is a one stepforward towards improving the ease of doing business in India. However, even after 3 years since implementation, GST in India still seems very far from achieving most of the stated objectives and its avowed promises to businesses.
Even the flexibility to undertake business activities freely within the boundaries of the country is not completely available under the GST regime on account of mandate to obtain separate registrations for operations in different States and treating the said registrations as distinct persons for the purposes of GST. While this may have been necessary to implement elimination of cascading effect of taxes, the legislature failed to comprehend that there may be business situations where a particular business entity might want to close operations in a particular State and shift its focus to their business in another State. To cater to this scenario, the extant provisions of law does not provide for a mechanism to transfer to input tax credit available to an entity registered in one State to another registration of the same entity in a different State. This leads to a situation where the input tax credit of one State is bound to lapse, despite there being a vested right in the said credit. In this regard, in a recent ruling by Andhra Pradesh Authority of Advance Ruling, it has been held that when a business of a company registered in one State is transferred as a ‘going concern’ to its registration in another State, the business will also be permitted to transfer the unutilized input tax credit as well. However, it still needs to be seen whether a similar position may be adopted where business decides to close its operations in a particular State, leaving aside the fact that the said ruling is itself prone to challenge in appeal by the Government.
Unnecessary Blocking of Capital
Under the direct tax domain, the most common dispute between the tax authorities and the taxpayers is on the possession of the disputed tax demand. Supreme Court, High Court and even Departmental Circulars have consistently maintained the legal position that where an addition/disallowance is covered in the favour of the taxpayer by the appellate orders in taxpayer’s own case or by the decisions of jurisdictional High Court or Supreme Court, the tax authorities ought not to recover such demand. Despite clear legal position, it is a recurring issue for the taxpayers where stay applications are rejected, coercive recovery is made and even legally entitled refunds for other assessment years are adjusted against such irrecoverable demand. When such kind of recovery becomes regular, year after year, in both the domains – direct and indirect tax, the businesses are drained of their limited pool of working capital and the impact is such that in many cases, the businesses have to fall back upon their foreign parent entity.
If we specifically discuss about the GST regime, although one of the stated and primary objectives was to eliminate cascading effect of taxes, there have been several artificial restrictions around availment of input tax credit, despite the input expenditure being arguably in relation to one’s business. Further, the credit of input taxes are being provisionally allowed, and notices are being issued to the businesses on account of mis-match on the portals. Despite the businesses make payment of taxes to their suppliers, the credit is being denied on account of failure on the part of the suppliers to report such supplies on the GST portal. While the purpose of implementation of such matching criteria under GST can be fathomed, it also needs to be appreciated that the businesses have almost negligible control over their suppliers who work independently, and the mismatch may be on account of several factors beyond their real control. The availability of their free capital to the businesses is severely hampered on this account.
Further relevant to highlight is the consistent position of our country that domestic taxes should not be exported out of country. However, in many scenarios, even in cases of export of goods and services which are zero-rated supplies under the GST regime, the businesses are not able to claim refund of taxes which form part of the said supplies. This is on account of creation of notional place of supplies to eliminate a particular transaction from the category of ‘export’ despite earning foreign exchange on the transaction. Apart from this, a further restriction to seek refund on export has been imposed by way of recent amendment made to Rule 89(4) of the CGST Rules to provide for a notional value to the ‘turnover of zero-rated supply of goods’.
Futile and Long Drawn Litigation Approach of the Government
The litigation cost incurred by businesses in India are also considerably high. As per the litigation trend in courts, it appears that the Government is adamant to pursue several litigations pertaining to transitional credit. Despite a settle position in law that credit is a vested right, there are several restrictions imposed on its transition, including restriction to transition cesses, imposition of timelines to transition, restriction to make multiple revisions. The Government, in this regard, has placed itself into an unnecessary conundrum. Credit, after all, is tax paid to the government and in line with the stated principles of elimination of cascading effect of taxes, credit should not be denied. The position adopted by the Government dilutes the stated objectives of GST and is increasing litigation for businesses. Even in respect of the amnesty scheme introduced for settling the legacy disputes under erstwhile indirect tax laws, the executive function of the Government has been rejecting the declarations filed by the businesses on several technical and procedural grounds. In some cases pending before High Courts, the designated committee have rejected to allow the adjustment of predeposits made in pursuant to the interim orders of the Tribunal despite a express sanction under the Scheme, or rejected on the grounds of non-filing of separate declarations for multiple SCNs covered in a single pending appeal before the Tribunal. Such a position has unnecessarily taken away the very purpose of amnesty i.e., to reduce litigation. The said trend shows the mindset of the Government to deviate from the clearly stated objective of putting an end to lengthy litigation and on the contrary, is adding to the burden of High Courts which are already crumbling under heavy pendency.
Another futile litigation is on the taxpayer’s struggle to obtain its legally entitled refunds after getting an addition deleted in appeal. In case a tax addition is deleted in appeal, the authority is mandated as per law to give effect to the appellate order and issue the resulting refunds to the taxpayer. This is a clear statutory mandate but despite such mandate, there is a regular litigation against the inaction of the tax authorities in not giving effect to appellate orders and issuing consequential refunds. The tax authorities have acted perversely to the extent where on one hand they do not give effect to the appellate orders, due to which a demand is reflected instead of refunds, and on the other hand, the authorities adjust the same non-existent demand with refunds determined for the taxpayer in other assessment years. Such litigation friendly tax administration creates a highly discouraging business environment.
Biased and Unilateral Approach of the Executive Function
The administration of GST regime by the executive has also been biased in favour of the revenue ever since its introduction. In this scenario, while the law has been entirely transformed, the executive has always been against the businesses, which is leading to a situation which is not conducive to do business in the country. For illustration purposes, it may be worthy to refer to the anti-profiteering law under the GST regime which has been administered in a manner contrary to a long line of judgments where it was held that there should be sufficient guidelines within the law for its administration, more so when such legal regime entails civil consequences, and in the absence thereof, the said law would itself fail. Despite there being complete absence of any mechanism prescribed under the law for computation of profiteering, the authorities have been acting whimsically in computing profiteering amounts against businesses, leading to complete arbitrariness in the claims made against the businesses. With the long periods of anti-profiteering investigations preferred by the authorities, the businesses have been forced to keep their sale prices constant despite an actual verifiable increase in their cost. Further, the executive has been adamant to impose further levies on the businesses under the garb of anti-profiteering provisions despite a demonstrable transfer of benefits accruing to the business on account of GST implementation or on account of reduction in rate of taxes under the GST regime. The said implementation is arguably a clear violation of the fundamental rights to do business as enshrined in the Indian Constitution and is also contrary to the freedom to earn profits from one’s business, which stands severely curtailed.
Failing Alternative Dispute Mechanism under the Income Tax Act
Finance Act 2009 introduced an alternative dispute resolution mechanism under the Income Tax Act for foreign companies and transfer pricing assessments in order to facilitate expeditious disposal of disputes on a fast track basis. Under the alternate route, Appellate Commissioner level was replaced by the Dispute Resolution Panel (DRP) which is constituted by a collegium of three Commissioners of Income Tax. In order to further align the DRP route with the Government’s intent to minimise litigation, further amendment was made vide Finance Act 2016 to prohibit the tax department from filing appeals against the assessment orders passed in pursuance of the DRP directions.
If the ground reality be witnessed, taxpayers expect relief from DRP only in case the disputed addition is favourably decided by appellate orders in taxpayer’s own case for other assessment years and such appellate order has attained finality. If such appellate order has further been appealed by the department, a relief cannot be expected even in that situation. A major reason is that the DRP does not recognises itself as a quasi-judicial appellate body and considers itself not bound by the principle of judicial precedents. With the Revenue’s right to appeal against DRP directions being taken away, further decline was witnessed in taxpayer favouring DRP directions in order to keep the issues alive in appeal. Surprisingly, DRP has even mentioned this as a reason for not giving relief in some of its directions.
This was not the case with the Appellate Commissioner route, not to this extent at least. If a favourable order is obtained by the taxpayer before the appellate commissioner, major litigation can be reduced at the tribunal level because the Revenue would not be able to appeal in many cases wherein the tax effect is less than INR 50 lacs, as per the existing CBDT Circular. On the other hand, under the DRP route, with higher number of unfavourable DRP directions, taxpayers’ appeals are bound to travel to the tribunal where the average pendency period is much higher than at the Appellate Commissioner level.
Launched as a speedier remedy, DRP has instead become merely an extension of assessment proceedings. The only apparent benefit to a taxpayer is that it reaches the Tribunal stage faster than earlier, but that benefit is insignificant because the time advantage, when compared to the time taken in disposal of appeals before Appellate Commissioners, is very minimal.
Hasty approach in introducing new taxes creates uncertainty, attracts litigation and hinders investment
Further relevant to highlight is the hasty approach of the Government in introducing the Equalisation Levy for taxing the digital economy. It is not denied that the digital economy in-effect is failing the existing nexus/ business connection rules in the domestic income tax law and the permanent establishment (‘PE’) rules in the bilateral tax treaties thereby avoiding imposition of tax on income in the source countries. The need to tax the digital economy is legitimate. However, taking unilateral tax positions on the untapped income and denying existing treaty benefits will adversely affect the digital economy.
OECD/G-20 countries had recommended in their report that measures like ‘Equalisation Levy’ may be introduced in domestic laws but subject to existing tax treaty obligations. The levy is clearly a short-term measure to compensate for the Government’s inability to impose tax on the digital economy as per the existing income tax provisions. But keeping the levy outside the purview of the Income Tax Act amounts to an indirect violation of the existing tax treaty obligations. Following are some of the conceivable adverse consequences on the digital economy which has the potential to attract huge litigation as well as investment attrition in the sector:
- Denial of treaty benefits to the foreign taxpayers which will lead to double taxation on the same income in India as well as their resident country
- Seeks to tax even extra-territorial transactions wherein both the e-commerce operator and the user of the services could be non-residents but the user either subscribes to the services or procures the services even once using an Indian IP address;
- Absence of clarity on the computation the tax base for the levy;
In addition to the above, the widened scope of the levy has been introduced during the Covid-19 Pandemic when the businesses are already bleeding. It was practically impossible for the taxpayers to even comply with certain preliminary requirements of obtaining a PAN and an Indian Bank Account due to the restricted functioning of the Embassies and the Government Departments. Despite this situation and the constant requests from the Industry for extension, the date for deposit of first instalment of the levy, i.e., July 7 was not extended by the Government. The taxpayers are bound to be noncompliant and knock the doors of the Courts to avoid any adverse implications due to delay.
A cumulative impact of the above issues, inter alia, on the businesses is to take a direct hit at the decision to continue such business operations in India. While India has one of the largest pool of readily available and cheap resources for facilitating business activities, there is no real sense of ease of doing business in India, as compared to several other jurisdictions including Singapore, which has a stateof-the-art infrastructure coupled with transparent regulations, rule-following and market-based economy. The mention of Singapore is very relevant today because India is consistently losing out to Singapore on major investments. Majority multinationals today prefer Singapore for setting up their holding companies. Even Indian Start-ups are setting up their headquarters in Singapore.
If we compare the direct tax regime, the highest corporate tax rate goes up to 30% in India which reaches merely 17% in Singapore. The tax on capital gains and dividend income is Nil in Singapore. This itself makes Singapore the most conducive tax jurisdiction for setting up holding companies and owning IP and other intangibles.
If we compare the indirect tax regime, while India has chosen to implement a varied rate of taxation coupled with an online compliance system, with tax rates going as high as 28%, Singapore chose to implement a similar online compliance system with a unified taxing regime fixed at 7%.
While cost of compliance and tax rates are important factors for making Singapore a tax efficient jurisdiction, even in terms of political and economic stabilities, rule of law, global integration, Singapore stands well above India.
Therefore, a major overhaul is required in the Government’s approach to achieve the position of a conducive tax jurisdiction and a preferred investment destination for multinationals. Hon’ble CJI Shri S.A. Bobde, at the 79th foundation day celebrations of Income Tax Appellate Tribunal, while referring to the ancient tax laws in India, said the following which is relevant to this issue: “Tax should be collected from people like honey bee draws nectar from flowers without harming it”. This line says a lot about the role of the Government and the tax administration and the approach it should adopt of ensuring facilitation of conducive environment for business and not destruction of the same.
Kamal Sawhney is a Partner at PDS Legal. He is an Arguing Counsel before the Supreme Court of India and High Courts.
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A discussion on the adoption and marriage rights of LGBTQ + community?
2018 verdict is not the end of issues facing the LGBTQ+ community.
“Equality means more than just passing laws. The struggle is really won in the hearts and minds of the community, where it really counts”.
The LGBTQ community, that is, lesbians, gays, bisexuals, transgenders, queer and more are evidently and civilly an important section of our society and no more extremist or conservative political influencers can keep blindfolds on. Across the globe, every country has more than 4-5% of their population who desires to be treated and given all the rights, given to a heterosexual couple or individual. In India, from the colonial-era, under the British Raj homophobia was introduced and distorted the foundation of gender equality and justice. Where in India the community is granted with few rights after seventy-one years of independence, many countries still uphold it in the column of criminal offences, and are punished and prosecuted. No doubts, the rights of the community were ignored and unseen earlier even after the establishment of human rights organisations and institutions in 19th century. They were also been identified as refugees in many countries, as when their own country tries to prosecute them, they were eventually timorous and fiddle footed. When the world talks about the equality and justice irrespective of genders(sex), a whole lot of community was shunned and snubbed. With the course of time, many activist, lawyers and leaders of community has step forward and protested for their Rights, dignity and an equal status in the society as others. Where in countries like America, Canada, Netherlands, UK, Spain, etc, are some gay-friendly countries and countries like India, South Africa, Thai countries are still protesting for all the civil and legal rights and in some counties especially the Islamic ones, like Pakistan, Afghanistan, Saudi Arab etc, list it under criminal offences and same-sex activities are strongly condemned and are punished even with death and life imprisonment. Talking specifically about India, the legal system still has not given homosexuals all the legal rights same as a heterosexual.
SUPREME COURT 2018 VERDICT ON SECTION 377
On September 6, 2018 Supreme Court says, “history owes apology to LGBT community”. The supreme Court of India partially struck down colonial era rule, in the landmark case of Navtej Singh Johar & Ors v. UOI decriminalising all consensual sec among adults, including homosexuals. This case overturned a previous ruling (Suresh Kumar Koushal v. Naz Foundation). The court determined the constitutional validity of Section 377 of the Indian Penal Code. Section 377 of the Indian Penal Code is a section of IPC introduced in 1861 during the British Rule in India, it makes sexual activities “against the order of nature” illegal. It was upheld by the Supreme Court that the application of Sexual 377 to consensual homosexual sex between adults was unconstitutional, “irrational, indefensible and manifestly arbitrary”, but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality. On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark puttaswamy judgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. This judgement was believed to imply the unconstitutionality of section 377. The judgment was given by a five judges bench comprising the then Chief Justice of India Dipak Misra, Justices R. F. Nariman, D. Y. Chandrachud, A. M. Khanwilkar and Indu Malhotra.
377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
CURRENT LGBT RIGHTS AND LAWS IN INDIA
Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.
— Supreme Court of India
In India, with the passage of time many protests occurred by the LGBT community for their rights and in which the judiciary and parliament has been active and effective. After the 2018 verdict, the Transgender Persons (Protection of Rights) Act, 2019 was adopted that bans unfair discrimination against transgender people in educational establishment and services, employment, healthcare services, access to the “use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public”, the right to movement, the right to “reside, purchase, rent or otherwise occupy any property”, the opportunity to stand for or hold public or private office, and in government or private establishments.
Article 15 of the Indian Constitution was stated as a major statement, as it states that:
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition.
To be Noted: Despite these constitutional interpretations, no explicit law has been enacted to ban discrimination on the basis of sexual orientation. Concerning employment, Article 15 only extends to discrimination from the state or government bodies
Discrimination, bullying and ragging targeted at a student on the ground of their sexual orientation or gender identity is prohibited under the UGC Regulation on Curbing the Menace of Ragging in Higher Educational Institutions (Third Amendment), 2016.
TRANSGENDER RIGHTS IN INDIA
India has traditionally recognised a third gender population, considered by society as neither male or female. Such individuals are known as Hijras. On 15 April 2014, the Supreme Court of India declared transgender people a socially and economically suppressed class entitled to reservations in education and jobs, and also directed union and state governments to frame welfare schemes for them. The Court ruled that transgender people have a fundamental constitutional right to change their gender without any sort of surgery, and called on the Union Government to ensure equal treatment for transgender people. The Court also ruled that the Indian Constitution mandates the recognition of a third gender on official documents, and that Article 15 bans discrimination based on gender identity.
The Transgender Persons (Protection of Rights) Bill, 2016, which was initially introduced to Parliament in August 2016, was re-introduced to Parliament in late 2017. Some transgender activists have opposed the bill because it does not address issues such as marriage, adoption and divorce for transgender people.
HISTORICAL EVIDENCES THROUGH THE HINDU SCRIPTURES
Hinduism has always acknowledged transgenders from ancient times, and marked as a symbol of positivity. They were respected and even feared by their anger. Transgenders had a huge significance from the time of Mahabharata, where the famous transgender Shikhandi is known, she was born as a female but identified as a male and later married a woman. The Naradasmrti and the Sushruta Samhita, two important scriptures from ancient India relating to dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the opposite sex. The Kama Sutra, a Sanskrit text on human sexual behaviour, uses the term tritiya-prakriti to define men with homosexual desires and describes their practices in great detail.
MARRIAGE AND ADOPTION RIGHTS TO THE LGBT COMMUNITY
We all say that parents are equivalent to god and no one could be empathetic, supportive, lovable than a parent, and a parent’s love towards its child is never-ending and undemanding, so the question arises that Can a Homosexual or a transgender mother be any less motherly or affectionate? There is an ever increasing and also a present rate of infertile couples, but still India’s adoption rate is so abysmally low as there is also an accelerating rate of orphans in India. According to United Nations Children’s Fund (UNICEF), India has 29.6 million orphaned and abandoned children in 2018 and by 2020 the number has increased to 31 million. So, it could mean that a child can be grown all by his/her own, away from a home, parents, guardians, love, care, protection rather than giving them to a homosexual couple. There needs to be a huge readjustment in the government’s focus on child development because currently millions of children are being wasted and denied a future of opportunities to realise themselves. The government’s Central Adoption Resource Authority (CARA) adoption statistics show that in 2010 there were 5,693 in-country adoptions, while in 2017-2018, there were only 3,276 in-country adoptions. These are disgraceful figures for a population as mammoth as India’s. And currently, there are approximately only 20,000 parents in line waiting to adopt, compared to the 27.5 million couples who are actively trying to conceive but are experiencing infertility, according to the Indian Society of Assisted Reproduction. In any nation children are the future capital, an asset, who need to be nurtured to protect its demographic, economic conditions as by 2050 the population explosion will destroy and distort the entire community and not one. Its high time to discriminate and differentiate between genders, race, colour, ethnicity, and should be unified for betterment.
The concluding lines will be as simple as ever, as now the need of hour is to halt gender discrimination, to reduce the gender gap, to introduce equality and justice for every living human being in India. LGBT community and their rights had been supressed from a long time, they had been differentiated from the heterosexual couple, denied of equal rights, and now the judgment should be in the favour of equality and pride and not just a gender.
Hinduism has always acknowledged transgenders from ancient times, and marked as a symbol of positivity. They were respected and even feared by their anger. Transgenders had a huge significance from the time of the Mahabharata, where the famous transgender Shikhandi was born as a female but identified as a male and later married a woman. The Naradasmrti and the Sushruta Samhita, two important scriptures from ancient India relating to dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the opposite sex.
Satish Ragde vs State of Maharashtra: Misconceived interpretation of Section 7 of the POCSO Act contrary to the legislative intent
As a matter of intellectual exercise, even before delving into the judicial exposition on the subject, it would be prudent to understand the mind of the legislature in relation to the legislative intent behind Section 7 which is to be read in consonance with the scheme of the Act. The foremost duty of the judge, while interpreting any provision of a statute, is to give effect to the intent of the legislature as long as it not ultra vires the constitutional provisions and contrary to the public good and principle.
In a recent troubling judicial pronouncement of the Nagpur Bench of the Bombay High Court in the matter of Satish Ragde v. State of Maharashtra (Criminal Appeal No. 161 of 2020), a single judge Bench of the Bombay High Court held that the application of Section 7 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO ACT”) would require either the removal of the clothes or the hand to be inserted within the clothes, whereby actual skin contact occurs to constitute the offence of ‘Sexual assault’, which is indicated by the following part of para 18 of the judgment which reads as follows:
“The act of pressing of breast of the child aged 12 years, in absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”
It would be pertinent, for the purposes of this discussion, that Section 7 of the POCSO Act is reproduced for the sake of reference. It provides that:
“7. Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual contact.”
From the reading of the above definition juxtaposed with the rationale of the single judge, the issue in this judgment boils down to the interpretation of ‘Sexual assault’ as provided in Section 7 of the POCSO Act and; whether it would cover a situation where the ‘contact’ / ‘groping’ occurred over the clothes of the child?
Admittedly, the single judge has clarified her mind in the judgment itself, vide para 26, that the meaning of “physical contact” that has been provided in Section 7 would naturally be construed as “direct physical contact i.e. skin to skin with sexual intention without penetration”. Thus, the entire question regarding the applicability of Section 7 in the present case pivots around this aspect that whether ‘physical contact’ would specifically mean ‘skin to skin contact’ or it would be construed in a simpliciter manner to cover all situations where there is any contact on any of the areas mentioned in Section 7 as long as the same is accompanied with a ‘sexual intent’.
As a matter of intellectual exercise, even before delving into the judicial exposition on the subject, it would be prudent to understand the mind of the legislature in relation to the legislative intent behind Section 7 which is to be read in consonance with the scheme of the Act. The foremost duty of the judge, while interpreting any provision of a statute, is to give effect to the intent of the legislature as long as it not ultra vires the constitutional provisions and contrary to the public good and principles of Natural Justice. The best way to gauge the mind of the legislature is by plain reading of the intent of the legislature which is apparent in the scheme of the Act. In order to determine the scheme of any Act, one need not look further than the Preamble of the Act itself.
The Preamble of the Act provides that the Act is meant “to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.”
It further provides that “it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child”. Therefore, the intent of the legislature as well as the scheme of the Act is ostensibly clear from the reading of the Preamble.
It is clear from the reading of the Preamble that the intent of the legislature while enacting the POCSO Act was to provide an additional layer of protection to children in the domain of sexual offences which were falling in-between the gaps of the pre-existing criminal law governing sexual offences which was covered under the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). In the light of the new legal regime as mentioned above, the single judge should have attempted to provide a beneficial interpretation to Section 7 which gave effect to the scheme of the Act, rather than taking a narrow interpretation curtailing the scope of Section 7, which was not otherwise naturally provided in the provision itself.
It should be further observed that the single judge unnecessarily created a peculiar rationale in order to arrive at her interpretation for Section 7 of the POCSO Act. The Single judge went into the question of interpretation of the phrase “any other act” which is provided in Section 7 to construe that the action of pressing the breast / groping over clothes would not be covered by the phrase “any other act”, which would be interpreted according to the principle of ‘ejusdem generis’, which provides that the words/phrases will be interpreted in the same manner as the words/phrases used in the immediately preceding part of the provision in order to construe that the meaning of the words would be of similar/same nature as that of the meaning of the preceding words/phrases of the provision. Therefore, according to the single judge, the action of pressing the breast over the clothes is not covered by the phrase “any other act” and subsequently the requirements of Section 7 are not being fulfilled, thereby leading to the failure to attract the application of Section 7. However, this was an incorrect and redundant interpretation of this phrase as it should have been provided a liberal interpretation, keeping in mind the scheme of the Act which stresses concern over the ‘best interests of the child’, even after the application of the principle of ‘ejusdem generis’. The application of the principle of ‘ejusdem generis’ to the phrase “any other act” would ensure that it is read to include those actions within its scope which involves touching of the private parts of the child coupled with sexual intent, rather than the phrase being read down to only mean the ‘touching’ of only the said body parts that are provided in Section 7 therein which should be a physical touching involving ‘skin to skin’ contact to qualify inclusion into the scope of the phrase “any other act” as provided in Section 7.
However, it is of utmost importance to mention here that even if we were to disregard the above redundant ‘intellectual exercise’ of judicial interpretation, even then, the single judge could not have arrived at such a flawed interpretation of the definition of ‘Sexual assault’ which is provided in Section 7.
This flawed interpretation was the result of the misconceived notion of the single judge that the “physical contact” contained in Section 7 meant ‘skin to skin’ contact which is what the single judge Bench termed as “direct physical contact”.
However, this unnecessary distinction as to what would constitute “physical contact” has not been provided in the wordings of Section 7, which would, therefore, mean that the term “physical contact” should have been construed in a simpliciter manner involving any touching of the said body parts that have been mentioned in Section 7, regardless of whether it is ‘skin to skin’ contact or ‘groping’ over the clothes.
In this regard, the single judge has, unfortunately, substituted her personal bias in lieu of the legislative intent behind the enactment of the POCSO Act and Section 7 specifically, and subsequently read-in a requirement which was never intended by the legislature.
The legislative intent behind the enactment of the POCSO Act was to provide additional layers of protection to the child victim and deter all forms of sexual offences, which may be inflicted upon a child, and thereby hindering their holistic and healthy growth. Therefore, the purpose of the POCSO Act is to specifically provide protections to children apart from the protections that have been otherwise provided in the IPC contained in the provisions pertaining to sexual offences, including the provision pertaining to ‘penetrative’ sexual assault contained in Section 375 of the IPC, which provides for the definition of Rape. In contrast, the POCSO Act goes beyond the IPC and provides for a specific provision dealing with the subject of ‘non-penetrative’ sexual assault, however, the same has been disabled by the absurd and redundant interpretation of the single judge, which is also disjointed from the legislative intent of the Parliament, which is evident from the Scheme of the Act itself.
The legislative intent behind the enactment of the POCSO Act was to provide additional layers of protection to the child victim and deter all forms of sexual offences, which may be inflicted upon a child, and thereby hindering their holistic and healthy growth. Therefore, the purpose of the POCSO Act is to specifically provide protections to children apart from the protections that have been otherwise provided in the IPC
72nd Republic Day: Our living Constitution
As we celebrate the 72nd Republic Day, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention to the fact that Fundamental Rights and Fundamental Duties have to be given equal importance. Fundamental Duties, though non-justiciable, are rules of law.
“The objective of our Republic is to secure justice, liberty and equality for its citizens and to promote fraternity among the people who inhabit its extensive territories and follow different religions, speak various languages and observe their peculiar customs……Our Constitution is a democratic instrument seeking to ensure to the individual citizens the freedoms which are so invaluable. India has never prescribed or prosecuted opinion and faith and our philosophy has room as much for a devotee of a personal god, as for an agnostic or an atheist. We shall, therefore, be only implementing in practice under our Constitution what we have inherited from our traditions, namely, freedom of opinion and expression……”
– Dr. Rajendra Prasad.
26th January, 1950, was the day when India became a republic and its constitution (major part) came into force. This day is celebrated as the Republic Day as it was on this day in 1930 that Purna Swaraj was celebrated following the resolution of the Lahore Session. The Constituent Assembly took a total of two years, eleven months and seventeen days to complete the Constitution. The Constituent Assembly considered a total of 2473 amendments proposed to the Draft Constitution from 9th December, 1946 to 26th November, 1949. Dr. Rajendra Prasad, the President of the Constituent Assembly confirmed the Constitution and fifteen articles were immediately given effect to on 26th November, 1949, which were, the provisions of Citizenship, Oath and Affirmation by the President, Elections, Definitions, Interpretation, Powers of the President to Remove Difficulties and the Short Title of the Constitution. The rest of the provisions came into effect from 26th January, 1950 and the working of the Constituent Assembly came to a stop. The preamble, a part of the Constitution, also came into force on 26th January, 1950, which presents the intention of the framers of the Constitution and the principles of the nation.
FUNDAMENTAL FEATURES OF THE INDIAN CONSTITUTION
On the occasion of 72nd Republic Day, it will be apt to highlight the fundamental features of the Indian Constitution which make it a living Constitution. The fundamental features of the Constitution are briefly discussed hereinafter. Part I deals with the Union and its Territory and Part II deals with Citizenship. The Fundamental Rights are provided in Part III of the Constitution. The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the object of the fundamental rights is to ensure the inviolability of certain essential rights against political vicissitudes. Fundamental rights are not distinct but are mutually exclusive, as has been held by the Supreme Court in a catena of judgments. Article 14 deals with Equality before Law and states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 19 provides for protection of certain rights regarding freedom of speech and states that all citizens shall have the right to freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions (cooperative societies), to move freely throughout the territory of India, to reside and settle in any part of the territory of India, and to practice any profession, or to carry on any occupation, trade or business. Article 21 provides for protection of life and personal liberty and states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 25 provides for the freedom of conscience and free profession, practice and propagation of religion and states that subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Article 30 provides for the right of minorities to establish and administer educational institutions and states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Article 32 provides the remedies for enforcement of the Rights conferred under Part III and states that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. Dr. B.R. Ambedkar while highlighting the central importance of Article 32 of the Constitution stated that I am very glad that the majority of those who spoke on this article have realised the importance and significance of this article. If I was asked to name any particular article in this Constitution as the most important – an article without which the Constitution would be a nullity – I could not refer to any other article except this one. It is the very essence of the Constitution and the very heart of it and I am glad that the House has realised its importance.
Part-IV deals with Directive Principles of State Policy and Dr. B.R. Ambedkar called the Directive Principles of State Policy as a novel feature of the Indian Constitution. The object of directive principles is to promote the ideal of social and economic democracy and they seek to establish a welfare state in India. The Supreme Court has held that the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles. Part IV-A deals with the Fundamental Duties that every citizen of India is expected to follow and states that it shall be the duty of every citizen of India – to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish and follow the noble ideals which inspired our national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India; to defend the country and render national service when called upon to do so; to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of our composite culture; to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; to develop the scientific temper, humanism and the spirit of inquiry and reform; to safeguard public property and to abjure violence; to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
Part V deals with the Union, which includes the Executive, the Council of Ministers, the Attorney General of India, the conduct of the Government business, the Parliament, the Legislative Powers of the President, the Union Judiciary and the Office of the Comptroller and Auditor General of India. Part VI deals with the States which includes Executive, the Council of Ministers, the Advocate General for the State, the conduct of the Government business, the State Legislature, the Legislative Powers of the Governor, the High Courts in the States and the Subordinate Courts. Part VII has been repealed by the Constitution (7th Amendment) Act, 1956. Part VIII deals with Union Territories. Part IX deals with the Panchayats. Part IX-A deals with the Municipalities. Part IX-B deals with the Cooperative Societies. Part X deals with the Scheduled and Tribal Areas. Part XI deals with the Relations between the Union and the States. Part XII deals with Finance, Property, Contract and Suits. Part XIII deals with Trade, Commerce, and Intercourse within the Territory of India. Part XIV deals with the Services under the Union and the States. Article 315 states that subject to the provisions of this article, there shall be a Public Service Commission for the Union and a Public Service Commission for each State. Part XIV-A deals with Administrative Tribunals and Tribunals for other matters. Part XV deals with Elections. Article 324 states that the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission referred to in this Constitution as the Election Commission and Article 329 states that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court. Part XVI deals with special provisions relating to certain classes.
Part XVII deals with the Official Language. Part XVIII deals with Emergency Provisions. Article 352 states that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation. Article 356 states that if the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State: Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. Part XIX contains miscellaneous articles and Part XX deals with amendment of the constitution. Part XXI deals with Temporary, Transitional and Special Provisions and Part XXII deals with Short Title, Commencement, Authoritative Text in Hindi and Repeals.
EXCERPT FROM B.R. AMBEDKAR’S SPEECH
Dr. B.R. Ambedkar, in his speech on November 25, 1949, stated that if we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.
Justice Krishna Iyer once aptly enunciated that the Indian Constitution is the cornerstone of a liberated nation which lays the grand foundation of a great people’s political edifice of governance and spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character. An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways, — these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Article 51-A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.
As we celebrate the 72nd Republic Day, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention towards the basic principles of law in our society and call to mind the purpose which the law has in view to serve in a country governed by rule of law envisaged by the Constitution. Fundamental rights and fundamental duties have to be given equal importance. Fundamental duties, though non-justiciable, are rules of law. It is our duty to abide by the Constitution and carry out our fundamental duties effectively for instilling a sense of obligation and discipline amongst ourselves. We have to fulfil the objectives of the Constitution to dispense social justice to the people of our country. The Judiciary has played a magnificent role in upholding the Constitution and must always travel on the same path of delivering justice constructively. The Constitution obliges us to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. Therefore, on the 72nd Republic Day, let us pledge to uphold our living Constitution by remembering the words of Mahatma Gandhi, Father of our Nation, when he said that I shall strive for a Constitution which will release India from all thraldom and patronage, and give her, if need be, the right to sin. I shall work for an India in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class of people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men.
On the occasion of 72nd Republic Day, it will be apt to highlight the fundamental features of the Indian Constitution which make it a living Constitution. Part I deals with the Union and its Territory and Part II deals with Citizenship. The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the objective of these rights is to ensure the inviolability of certain essential rights against political vicissitudes.
PROSTITUTION: LAW & ANALYSIS
The word ‘prostitution’ derives from a Latin word called prostituere means to expose publically. It basically means providing sexual favors in return of money. Like other forms of violence it is generally committed against women by men. Moreover, the transgender community often goes unnoticed when we pin point the wrongs of the system of prostitution in India. Prostitution in India and across the globe makes billions in profits mostly by taking advantage of socially and economically vulnerable people.
The main cause of prostitution arises due to the orthodox Indian Society which sees women as an object or a commodity. Prostitution is also prevalent in caste system where marginalized women are often sexually exploited and left to rot in the degraded system. Lack of sex education, kidnapping and abduction are some cause for prostitution.
LAWS RELATED TO THE PROSTITUTION
According to the Indian Penal Code, prostitution in it’s broader sense is not really illegal per se but there are certain activities which constitute a major part of prostitution are punishable under certain provisions of the act:
1. Soliciting services of prostitution at public places
2. Carrying out prostitution activities in hotels
3. Being the owner of a brothel
5. Indulge in prostitution by arranging a sex worker
6. Arrangement of a sexual act with a customer
Immoral Traffic (Prevention) Act, 1956 (ITPA) defines prostitution as sexual exploitation or abuse of a female for monetary purposes and a prostitute is the person who gains that commercial benefit. This act was passed in 1956 and is also referred as SITA. This law essentially states that prostitutes are allowed to commence their trade in private but they cannot carry their business in public. As per the act, the clients can be arrested if found guilty of engaging in a sexual act in public.
A woman cannot indulge in commercial sex within 200 yards of a public place. Sex workers cannot be put under the ambit of the existent labour laws considering how distinguished their profession is but they have all the rights of any given Indian citizen and are entitled to be rescued and rehabilitated if they want.
Immoral Traffic (Prevention) Act, 1986 is an amendment of the original act. As per this act, the prostitutes are to be arrested if they are found soliciting their services or seducing others. Further, call girls are prohibited in making their phone numbers public. They can be punished for 6 months along with penalties if found doing so.
Clients indulging with a sex worker within the area of 200 yards of a public space can be imprisoned for maximum of 3 months with fines. In case, someone is found indulging in a sexual activity with a minor then, he/she can be jailed upto 10 years. Pimps and similar people who live from the income made by a prostitute are guilty as well. For that matter, if an adult man lives with a prostitute he can be regarded as guilty.
If he cannot prove himself to be innocent, he can face imprisonment between 2-4 years. SITA (1956) which was further amended to ITPA (1986) is an important law as according to the preamble of the act, the purpose of the act was to give effect to the Trafficking convention.The preamble refers to the law as An act to provide in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the prevention of immoral traffic in women and girls, enacted by Parliament in the Seventh Year of the Republic of India.
The constitutionality of ITPA was challenged in the landmark judgement of The State of Uttar Pradesh vs. Kaushalya. The facts enumerated in this case are that a few of the prostitutes were asked to be removed from their place in order to maintain the decorum of the city of Kanpur.
The High Court of Allahabad made the pronouncement that section 20 of the act abridged the Article 14 and sub clauses (d) and (e) of the Article 19(1) of the Indian constitution. The Act was held to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance.
The Act is also in consonance with the object sought to be achieved ie. maintaining order and decorum in society. The act focuses on achieving a public purpose to maintain the decorum and morality in the society and to rescue the fallen women and girls and provide them with rehabilitation and opportunities to the fallen victims so that they can become decent members of the society. The act seeks to criminalize the prostitution essentially and empowers the central government to form special court for trial of the offences under this act.
Article 2 of the Convention, the Parties to the Convention further agree to punish any person who: keeps or manages, or knowingly finances or takes part in the financing of a brothel; knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.
These offences mentioned in the convention and none of these laws mentions that a victim of the prostitution can be a offender. The purpose behind this was to punish the actual offenders who are involved in procuring, enticing or trafficking anyone for the purpose of the prostitution. The original international treaty aimed at prohibition and discouragement of any sort of sexual exploitation, thus stopping the trafficking of the persons into the prostitution.
However, it does not prohibit prostitution or commercial sex work by individual out of their consent and freedom. In India, ITPA does not directly prohibits the prostitution nor does it criminalizes it in its whole sense. Although, there are many provisions which discriminate against the sex workers and in fact, punishes them. The following sentences detail the main features of SITA: Section 2(f) defined prostitution as the act of a female who offered her body for promiscuous sexual intercourse for hire…
According to this definition, there is no mention of men or trans community. This establishes the punishment for upto 3 months for a woman who engages in prostitution within the 200 yards of the public place.
There is a discriminatory sentencing provision in the law where a woman can be imprisoned for upto one year, whereas, for the same offence, a pimp could only be imprisoned of upto 3 months. The biggest drawback about the law is that it only focuses on the street prostitution and other forms of prostitution were left without being acknowledged. Also, there is a very minimal punishment for the ‘middlemen’ of the industry. The closed door prostitution is somewhat inferred to be allowed but the law does not prescribe any legal safeguards or regulations and responsibilities for the protection of the sex workers.
The main problem with this provision is that it looks at the prostitution as immoral and indecent which is hampering the decorum of the society. However, the fact remains that engaging in sex work with precautions and regulations do not constitute any sort of harm on any individual.
Further, the only reason why prostitution is referred as something immoral and the sex workers are regarded as indecent solely because of how sex is a major taboo in our society and demand and supply of sex in a regulatory manner is something to be looked down upon.
The Indian society cannot digest the reality of the sexual violence happening because of the existent norms related to sex present in the society and people believing and continuing to thrive on these norms. The fact that the act tries to criminalizes the acts leading to the prostitution expresses the discomfort of the law at facing the real issue and makes the temporary and half hearted amendments in combating the issue.
A PROPOSED AMENDMENT IN 2006
There was a proposal made in 2006 to amend the Immoral Traffic (Prevention) Act . The amendment bill basically removes the provisions that penalize prostitution by soliciting clients. This proposal recommends enhanced punishment and an increased fine amount. It intends to criminalize the act of visiting a brothel for the purpose of sexual exploitation of trafficked victims with imprisonment of at least three months or a fine of Rs. 20,000 which has not been criminalized in the Act.
The bill constitutes authorities at the center and state level to combat trafficking. The term trafficking in persons has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution.
Article 21 of Indian Constitution The article states the protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to the procedure established by law.
In the case Budhadev Karmaskar v State of West Bengal
In this case, it was held that the sex workers are human beings and should be treated with humanity and dignity. Nobody is entitled to physically assault them.The judgement also highlighted the problems faced by the sex workers and their plight. Court is of the view that these women are compelled to indulge in prostitution not out of choice or pleasure but merely out of economic and social causes.
The court directed the central and state government to enroll the sex workers in vocational and technical courses and open rehabilitation centres for the better job opportunities for them. Immoral Traffic (Prevention)Act has incorporated Section 21 as a rule for the State Government to establish and maintain the protection homes and the houses should be regulated and licensed by them. There should be an adequate authority for investigation of the application for the protection homes. These licenses were temporary and non transferable. The state has powers to make ancillary rules in respect of license, management and maintenance of these homes or ancillary matters by virtue of section 23 of the act.
Article 23(1) also declares that traffic in human beings and the beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
The issue of human trafficking is tackled in the IPC as well which prohibits the trafficking of women and girls into a forceful area of prostitution and have prescribed harsh punishments on the offenders. The IPC ennumerates that anyone who buys or sells or obtains the possession of anyone under the age of 18 years for the purpose of prostitution or illicit intercourse.. or for an unlawful or immoral purpose.. or knowing it to be likely that such person will at any age be employed or used for any such purpose.. or knowing it to be likely that such person will at any age be employed or used for any such purpose.. is to be imprisonment for upto 10 years.
The IPC identifies cross border trafficking into prostitution and provides that whoever imports into India from any country outside India any girl under the age of twenty one years with the intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.
The provision related to rape under IPC also applies to the rape of a brothel inmate. The IPC defines the rape as an act of sexual intercourse with a woman against her will, without her consent or with her consent but under threat or fear od death or injury, or with her consent when she is not aware about the consequences of her consent or with or without consent when she is under 16 years of age.
The minimum punishment for rape is 7 years of imprisonment under IPC. These provisions are applicable to the brothel owners, brothel staff, and customers when they engage in sexual intercourse with minors or with women who are forcefully kept in the brothels.
Problems with the Indian laws and their purpose:
The main problem with these provisions are that the outlook towards prostitution is as something immoral and indecent and something which is hampering the decorum of the society. However, the fact remains that engaging in sex work with precautions and regulations do not constitute any sort of harm on any individual. Further, the only reason why prostitution is referred as something immoral and the sex workers are regarded as indecent solely because of how sex is a major taboo in our society and demand and supply of sex in a regulatory manner is something to be looked down upon.
The Indian society cannot digest the reality of the sexual violence happening because of the existent norms related to sex present in the society and people believing and continuing to thrive on these norms. The fact that the act tries to criminalizes the acts leading to the prostitution expresses the discomfort of the law at facing the real issue and makes the temporary and half hearted amendments in combating the issue.
Another main aspect of Indian laws related to the prostitution which goes unoticed is that these laws do not acknowledge that it is not only women who are victims of sexual exploitation but it is men and transgender people who suffer with sexual violence, exploitation and oppression.
LEGALISATION OF PROSTITUTION
There have been a lot of discourse regarding giving the legal status to the prostitution in India. It is observed that it is best to regulate the prostitution since, the chances of its abolishment are negligible. Various countries like Canada, France, Germany, Denmark, Wales etc. have regulated and legalized the prostitution.
In Germany, in fact the profession is not only legal but taxed as well where the brothels are allowed to advertise and send job offers through HR companies. Germany had also passed a latest legislation in 2016 which purposed at protect prostitutes by requiring the permit for all prostitution trades and a prostitute registration certificate.
This sort of system where the profession is regulated and the safeguards of the sex workers are taken into consideration, it tends to do less harm to the sex workers and better implementation of laws protects the system from abuse and exploitation. These sex workers are not only exposed to dangerous sexual transmitted diseases like HIV AIDS but they also, suffer from police brutality,dip in income, harassment etc. In 2009, Supreme Court itself suggested the prostitution to be legal.
Here are the following reasons for which prostitution should be legalised:
1. Legalisation of prostitution will protect the minors from being vulnerable to the sexual exploitation. There are almost around 10 million children who are pushed into prostitution, worldwide. Child prostitution is a bitter reality of almost all the countries but in Asia and South America, the situation is worse. Strict regulations in the industry can ensure the prohibition of the minors from the system.
2. Regulated health check ups of the sex workers will ensure the curbing of the sexual transmitted diseases specially, AIDS which is just so common among the sex workers. Adequate birth controls will ensure unwanted pregnancies and curbing of other health hazards. Regular health check ups and strict guidelines will ensure the cleaner and hygienic working conditions. A compulsory provision of condoms will also, be beneficial for the sex workers and the customers both.
3. Legalization of the prostitution will enhance and upgrade the system. There will be a removal of middlemen and pimps from the system and the sex workers will have more wage earning and the criminal and exploitative factors would be reduced to negligible.
4. It will reduce the sexual violence, rapes and other sexual assaults as people will resort to a legal and an easier alternative to satisfy their sexual urges. An example of Queensland can be taken where the region experienced 149% increase in rape rate after the closing of brothels.
Prostitution in India constitutes around 8.4 billion dollar business. Legalizing and taxing the process will be like an incentive for the government. Rights of the workers will be protected. Even though, the sex workers do not come into the ambit of usual labor laws still, they should get all the rights of a citizen and a laborer.
In a society, where prostitution has been an age old profession and is continuing to flourish as a business area, it will be ignorant to put a blind eye on it and pretend the non existence of the system and its flaws. Decriminalizing the sex work with proper rules and regulations and making it legal will ensure a better life for sex workers with better wages, health security and protection.
Not only this but as a society, it will be a progressive step which shall eliminate many social evils from the society like child prostitution, rape etc. Sex trade is a very evident reality of our country and by recognizing it as a legitimate profession with certain rules and safeguards all the involved parties can receive guaranteed benefits. A better and inclusive legal framework and implementation of all the safeguard methods will only cater to the betterment of the society.
Legalisation of prostitution will protect the minors from being vulnerable to the sexual exploitation. There are almost around 10 million children who are pushed into prostitution, worldwide. Child prostitution is a bitter reality of almost all the countries, but in Asia and South America the situation is worse. Strict regulations in the industry can ensure the prohibition of the minors from the system.
World of intellectual property in and around e-sports
The E-Sports Federation of India (ESFI), a non-profit organisation, promotes and organises gaming events and help train the athletes. It will not be correct to call them gamers as there is a significant difference between gaming and e-sports. The latter requires a lot of concentration, hand-eye coordination, and decision-making skills. The level of preparation by e-sports athletes is same, if not more, as the physical sports athletes.
Electronic sports or e-sports is an emerging industry where competing games are played via electronic systems online. These are mostly multiplayer games where the players can be anywhere in the world connected through internet. The tremendous growth in the e-sports market has led to major leagues being organised where audiences are sold tickets to watch the game, exactly like physical sports. This has become a million dollar industry and attracts younger generations of people because of the use of virtual and augmented reality. Singapore opened an e-sports academy to train students to become e-sports professionals.
The E-sports Federation of India (ESFI), a non-profit organisation, promotes and organises these gaming events and help train the athletes. It will not be correct to call them gamers as there is a significant difference between gaming and e-sports. The latter requires a lot of concentration, hand eye coordination, and decision making skills. The level of preparation by e-sports athletes is same, if not more, as the physical sports athletes. Regardless of the popularity and the opportunities that they provide, the disputes between the sports industry and the underlying intellectual property rights have always been there. The lack of regulations with respect to technology in India has always been a matter of concern. Intellectual property protection of any sport is a complex issue to decide ‘who owns what’ and ‘what leads to infringement’ as it includes various elements like the performance, broadcast and the ownership of the game itself.
The company that owns the game has a set of rights on advertising, promoting, and licensing. The need for a regulatory framework has grown significantly and the same has been constantly debated whether it should be included under the scope of physical sports or if it requires a new legislation.
RECOGNITION OF ONLINE GAMING AS E-SPORTS
The International Olympics Committee declared ‘competitive e-sports’ as a sporting activity in 2017. Later in 2019, the committee changed its stance on the subject by shifting focus to the physical and mental health of the players in a game and how a physical sport promotes an active lifestyle as opposed to online gaming.
The IOC has also raised concern on the level of violence in esports. South Korea, Japan, and Malaysia are among the many countries that have sports federations now to support, coach, and organise competitive events for e-sports. The United States Government is even granting visas to e-sports professionals.
E-sports was also seen as a demonstrating sport in the 2018 Asian Games. India is not far behind in the field with ESFI organising various leagues in different cities and for different games. It can be said that India may soon have a governing body for the same.
INTELLECTUAL PROPERTY RIGHTS OF E-SPORTS
Video games have always been popular among millions of people for entertainment purposes. With the advent of technology, online games like FIFA, League of Legends, DOTA, etc. became mainstream. The players who were only considered consumers before are now making profits by playing these online games in the comfort of their home. The athome video games have now become a major event with advertisers and sponsors investing their money in it.
The major source of income for organisers is selling tickets and advertising different brands in the tournaments. To a common man, it looks like a person (here, the e-sport player) paid for a product (here, the e-sport) and is now using it for himself as he owns it. Looking from a legal perspective, there a number of intellectual property rights associated with any product, even an e-sport. Intellectual property protects inventions, literary works, artistic works, designs, logos, etc. Before getting into the types of IP protection, it is important to understand the developer-player relationship with respect to the intellectual property of the game.
A developer is the person who owns the game and the customer is the one who downloads or purchases it. The customer enters into an end user agreement or a limited license which allows him play the game or in other words, use the developer’s IP. Each developer can put different conditions in their agreement ranging from not using their game for commercial purposes to not allowing any modification in the game. The developer has the complete ownership of the game and has the power to allow tournaments and streams. This gives rise to the question as to how the players earn money via streaming on channels like YouTube.
The streaming channels pay a person according to the number of views that they have on their video and the number of advertisements that they put in their stream. The gamers cannot earn anything from playing the game as it is protected under copyright. The developers also have the right to terminate your license at any point. The superior position that the owners enjoy gives them an unfair advantage over the professional players who want to make a living out of e-sports. The different types of IP protection that an e-sport enjoys are:
COPYRIGHT PROTECTION FOR E-SPORTS
- Copyright protects the right of creators and is considered as a reward for their creativity. It gives them the exclusive right to produce, publish or perform their work and prohibits others from doing so
- Algorithm and Audiovisual elements.
- Although there is no specific legislation dealing with e-sports in India, copyright protects different elements of the game. The source code of the game comes under the scope of computer programs, the audio-visual part of the game can is a cinematographic work, the theme of the game and any type of music in it, all come under copyright protection.
In United States, computer programs are patented and therefore, e-sports algorithms are given patent protection there.
The protection of performance rights is more of a question mark than a right as of now. Performance rights refer to the rights of a performer prohibiting others from broadcasting their performance without their consent. The Copyright Act provides this protection but gamers are nowhere mentioned. It can be compared to a game of chess where each player has strategic moves which are technically his intellectual property but not under the scope of protection to prohibit others from using that move.
PRODUCING COPIES OF THE GAME
Furthermore, right of producing copies is exclusive to the developer of the game. The question to answer here is whether it will be copyright infringement if tournament organisers produce copies of the game and the answer is yes.Developers are the only ones with broadcasting and reproducing rights and organisers cannot even hold a commercial tournament without the consent of the developer. The athletes are more dependent on these owners for their very limited earning.
TRADEMARK PROTECTION FOR E-SPORTS
A trademark distinguishes the goods and services of one business from another. The objective of a trademark protection is to prevent unfair competition and the reputation of one business to be affected by the other. In the case of e-sports, the name of the game, its logo, and it slogan is under trademark protection. It is an exclusive right which prohibits others from using the same name or design.
PATENT PROTECTION FOR E-SPORTS
A patent protects inventions which are novel, have an inventive step, and are capable of industrial application. Here, patents will protect the technology that is applied in games, like joysticks or any online architecture where the game runs.
COMPETITION LAW AND IPR
Intellectual Property and Competition law are closely related. With disputes arising in IP protection, it directly impacts the competition in the market, especially where one company has a dominant position in the market. Therefore the price of the games or their licenses need to be regulated. It has to be ensured that one developer does not stop other competitors from entering into the market, or they should not change their prices to gain market share or sell a substitute game. Therefore, the agreements that the consumers or the athletes agree to should not be arbitrary. The developers should be prohibited from exploiting their IP rights for an unfair competition.
Intellectual property protection is a controlling legislation which answers the question of ‘what can be shared and what cannot’. With the competitive-sports industry realising its potential, it has become necessary to protect the rights of consumers. With traditional physical sports like football, hockey, etc. the ownership of the game is not an issue. But the online game or the e-sport is owned by a developer who has the protection of copyright to prohibit others from using his work. The sports industry, as a whole, has become a big corporation with one goal of making profits.
The commercialisation of the industry has increased the need for protecting intellectual property rights associated with it including, trademarks, copyrights, advertising rights, etc. There is clearly a need for a specific legislation to regulate the still developing world of e-sports, it will take a long time in India to actually have one. This should not, in any way, ignore the fact that the current intellectual property laws, while protecting developers, must also provide for the rights of the e-sports players.
The first step would be to give clear grounds of termination in the limited license to the players as well as the organisers if any tournament is cancelled. Another way to help the players is compulsory licensing of copyright which will allow consumers or professional players to make a few modifications in the game. Compulsory licenses promote a fair chance for all parties involved by rewarding the owner, and giving access to the player. It would also promote fair competition among the developers and tournament organisers by providing multiple choices. For compulsory licenses to be a successful alternative solution, there should be reasonable prices for royalty as the in-game purchases are also a big revenue point for the owner of the game.
Intellectual property and competition laws are closely related. With disputes arising in IP protection, it directly impacts the competition in the market, especially where one company has a dominant position in the market. Therefore, the price of the games or their licences need to be regulated. It has to be ensured that one developer does not stop other competitors from entering into the market, or they should not change their prices to gain market share or sell a substitute game. The agreements that the consumers or the athletes agree to should not be arbitrary.
Legal hurdles to vehicle modification in India
At least thirty out of hundred vehicle owners wish to see their vehicles stand out in crowd or traffic. Another section wish to take their vehicle even beyond the Mount Everest crossing Niagara falls. For the first category, their vehicle shall draw attention of the crowd to them; whereas the second category is keen on utility of the vehicle that they purchase. Even though advertisement shows vehicles easily mounting to rough terrain, it will not always serve the purpose. Vehicles are not always bought to drive in Highways and plains. There is the passion of a driver that always hidden in his/her vehicle.
WHAT LAW SAYS
The Motor Vehicle Act regulates alteration of vehicles vide s.52. The section says that all owners of the vehicles are absolutely restricted to alter their vehicles in respect that they deviate drastically from the features imbibed by the manufacturer. Whereas certain alterations can be made seeking permission from the registering authority. The section provides powers to central and state governments to make rules and regulations on the same.
In the Motor Vehicles (Amendment) Act 2019, s.2(i)(1) is substituted with adapted vehicle which means a motor vehicle either specially designed or constructed, or to which alterations have been made subsection (2) of the section 52 for the use of a person suffering from any physical defect or disability and used solely by or for such person. Under section 32, the owner has to get approval for altering the vehicle. In section 52 second proviso is substituted with “the central government may prescribe specification, conditions for approval, retrofitment and other related matters for alteration of motor vehicles and in such cases, the warranty granted by the manufacturer shall not be considered as void for the purposes of such alteration or retrofitment.” If the owner of the vehicle after registration alter or to cause alteration it shall be abide by the rules of the central government. In addition there are array of rules crafted by the central government and the state governments.
Under section 191, sale or alteration of vehicle contravening the Act is recognized as an offence. The exception available is that if the person proves he had reasonable cause to believe on the act done so. Section 194 penalizes driving vehicle exceeding the permissible weight.
ANALYSING THE SUPREME COURT VERDICT
The Regional Transport Officer & Ors. V. K. Jayachandran & Ors is the case in which it is ruled that alteration of motor vehicle is illegal. The judgment was delivered by Hon’ble Justice Arun Misra and Justice Vineet Saran. The case is a Special Leave Petition against the judgment by the Hon’ble High Court of Kerala allowing the structural modification of vehicles as per Kerala Motor Vehicle Rules. Let us analyze whether the verdict goes totally against the vehicle modification or has put some limits on the same.
Para 27 of the judgment runs as follows:
“The very object of the amendment of section 52(1) by Act 27/2000 is to prohibit alteration of a vehicle as provided including the change of tyres of higher capacity.”
“The proviso to sub-section (1) permits modification of the engine, or any part thereof, of a vehicle for facilitating its operation by a different type of fuel or source of energy including battery etc., such modification is permissible to be carried out subject to such conditions as may be prescribed.”
That is any alteration is possible except what is said under section 52 of the Act.
WHAT IS LEGAL?
a. Engine Modification- You need a prior approval from RTO.
b. Tyre Modification- You can change from base variant tyre to top model variant.
c. Fittings: door protectors, rain guards etc. can be installed.
d. Colour Modification: You need prior approval from RTO
e. Head and tail lights: LEDs and auxiliary lamps allowed except said illegal by the state/ central government.
f. Engine fuel change: You are free to use CNG instead of petrol or diesel.
g. Suspension variation/ modification: allowed to a few inches for high performance.
AND WHAT NOT…
a. Widening of tyres is illegal on the reason that it protrudes the body.
b. Loudness of horn: limited to 100 decibels
c. Width and length of vehicle: You are not allowed by the government to turn your car to an SUV by modification.
d. Width of alloys: it is illegal for the reason that lip of the alloy protrudes the tyre edge.
e. Tinting windows: Supreme Court said a big NO to it.
f. Modification of vehicle to a one with high capacity: NO huge horse power allowed other than what specified by the manufacturers.
VEHICLE ADS & FACTS
We watch n number of vehicle advertisements in a day. Google projects extra ads based on our Google search history. In the ad, the expectation on utility of the car may take us to another level. But the real hazard starts when we actually hold the steering assuming the expected utility projected by the advertisements. For example, an advertisement showing the vehicle easily go through the rough terrain. In reality roughness of the terrain cannot be expected, and sometime the same vehicle may stuck by the rock, or breakdown in sludge or its tyre punctures at the middle of a mountain or a hill. I am not talking about the vehicle which is modified and used in race tracks.
WHAT I HAVE TO SAY HERE….
I understand that I should not trouble public with my vehicle. The present situation is even though there is no chance to trouble, I am bar from modifying my vehicle due to something apart from my safety and duty to the public.
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