Blockchain is the flavour of the times with a lot of organisations and individuals joining the digital bandwagon. It is not just organisations, but even governments are trying to implement blockchain Technology for their governance and other activities given the immutable nature of blockchain. It is interesting to note that blockchain could be used in the domain of Law. However, blockchain as a technology brings forwards a lot of cyber legal aspects & challenges that need to be addressed in a holistic manner of the intersection of law & technology.
Blockchain relates to the concept of distributed ledger, wherein the blocks are connected in a chain through secured cryptography methods. Blockchain has numerous advantages like transparency, immutability, decentralisation, scalability and security. This article intends to put forth and discuss the legalities and legal challenges, aspects relating to blockchain technology focusing on cyber legal perspective.
BLOCKCHAIN IN A NUTSHELL
Let us consider the newspaper publishing this article as a blockchain network. The article published herein is a block and the content in the article is nothing but the data in the block, the article is published on a particular date and day which can be considered as timestamp. This article is circulated among all the subscribers of this newspaper or the members of this forum. However, no member nor a subscriber to this newspaper can modify or alter the contents of this article but can secure access to the content of this article. However, the non-subscribers of this newspaper or non-members of this forum shall not be able to access the contents of this article.
From the above one can relate that there is transparency, decentralisation, and immutability. This in simple sense, is the concept of blockchain in a nutshell. Further in case of any modifications to this article, the revised article shall be published by the newspaper on new date and day which is the new timestamp and the original and revised both shall be available to the subscribers and members of the forum along with the proper and exact timestamp. As they already have access to the original article which was published earlier and since the revised article is also accessed by them due to the publication of the newspaper now.
However, considering the above in case any alteration or revision is required to be made to the data in the block a new block is created with such revision and is connected to the original block as a new block along with the proper and exact time stamp.
In a nutshell blockchain shall consist of blocks linked together in a chronological order using cryptography. Each block shall consist of data, hash of the previous block. The hash can be compared to as the digital fingerprint and the hash in the previous block in the sequence.
USE OF BLOCKCHAIN FOR PROPERTY OWNERSHIP
Consider the details of all the previous owners of the property that are stored in each block and each of the block getting connected in chronological order with the other block along with the date and timestamp fetches the records of the ownership from the previous owner to the present owner.
Using blockchain technology for verification of clear title can be a good option so as to establish the exact and proper ownership. This can ensure that there is no tampering of data anywhere in the chain.
BLOCKCHAIN AND LAW
It is essential to understand the potential benefit blockchain has, however, it is imperative to also understand the kind of legal consequences that visit you while making use blockchain technology. Blockchain as a technology populates legal policy regulatory issues and challenges that need to be specifically addressed. I intend to collate various legal and cyber legal aspects surrounding blockchain in this article.
LEGAL RECOGNITION AND LEGALITY OF BLOCKCHAIN
The primary aspect that blockchain as a technology presents is the aspect of legal recognition and legal consideration. Given the kind of adoption of Blockchain it becomes important to grant legal recognition and legality to blockchain transactions. However, from a layman’s perspective blockchain is ultimately information and data in electronic format created using computers, computer systems, computer networks, computer resources and communication devices like mobiles and tablets. Given the fact that a lot of countries have come up with national legislations on cyber law from UNCTRAL (United Nations Commission on International Trade Law) model law of electronic commerce, one can perceive that legality may be granted to blockchain transactions.
However, the people from the conservative school of thought opine that specific and dedicated blockchain Law shall be required with focal thrust on providing legality to blockchain and the transactions thereof.
ENTRIES ON BLOCK AND BLOCKCHAIN LEGAL STATUS
Yet another significant legal aspect that needs to be considered is the legal status on the entries on the block and blockchain. Considering the use of Blockchain Technology for determining the property ownership, the interesting question that crops up is whether a mere entry made on the block conveys, assigns, transfers ownership of one owner to the other? Well the current position is unclear and is ambiguous. I believe that the presumptions relating to the above has to be clearly and specifically addressed. While we are thinking it may take couple of decades for the blockchain Law to be a mainstream, some countries have come up with new manifestations by way of legislations recognising blockchain as a kind of electronic record.
Let’s take the case of Nevada, USA, which has amended its Uniform Electronic Transaction Law (UETL) recognising blockchain as an electronic record created by the use of a decentralised method by multiple parties to verify and store digital record of transactions which is secured by the use of a cryptographic hash of previous transaction information. The law further prohibits imposing of any tax or fee by the government on the use of blockchain by any individual or an entity. The law also has come up with specific requirement of obtaining a certificate, licence or a permit for use of a blockchain by any individual or an entity.
Further, Vermont Law has declared blockchain based digital record as a business record as per the Vermont Rules of Evidence.
While the State of Delaware has come up with a law that stimulates the use of blockchain technology for the purpose of creation and maintenance of corporate records including corporations stock ledger.
With privacy being the tip of the ice-berg, blockchain as a technology is presenting privacy issues concerning personal and data privacy. With the kind of intrinsic nature blockchain demonstrates the moment an information is generated or entered on the block, the same shall be made available to all the stake holders in the said blockchain network. The net effect of this means that the data is transparent evaporating the concepts of privacy whether be it personal privacy as also data privacy. In the areas where confidentiality and privacy are assuming immense significance the challenges of data privacy in the light of blockchain adoption will have to be addressed from a legal and cyber legal perspective specifically in countries like India where now privacy is made a fundamental right of every citizen.
BLOCKCHAIN AND INDIAN CYBER LAW, IT ACT
While interpreting the existing Indian Cyber Law i.e., IT Act 2000, IT Amended Act 2008 and the rules and regulations made there under, we can understand that any data entered on the block, is information or data in electronic form constituting an electronic record under the IT Act. Further going by the preamble or objective of the IT Act of providing legal recognition and validity to all electronic records or transactions carried out using electronic means, as also one can apply and interpret the above to blockchain transactions. This may look fine as we are discussing, however, the specific legislation on Blockchain has to step in giving the exponential growth of Blockchain adoption.
BLOCKCHAIN SERVICE PROVIDERS LIABILITY AND COMPLIANCE
It is not just creating blockchain by and large, blockchain technology is offered as a service by various blockchain service providers. However, maintenance and preservation of blockchain is also going to be an interesting aspect which the blockchain service providers need to be aware of. While affixing the liability on the blockchain service providers a lot of key legal aspects need to be considered for instance what and how much liability can be affixed on the blockchain service provider for any technical hitches affecting the working, operations of the blockchain, more specifically in case blockchain is offered as a service, then in case of the above will it be considered as a liability for deficient services? Apart from these what constitutes the liability will also have to be clearly spelt out from a legal perspective. The blockchain service provider may be considered as an intermediary as also a network service provider under section 2(1)(w) of the IT Act. It is pertinent to note that the liability of intermediary and network service providers culled out under the IT Act Rules and Regulations made there under will be applicable to the blockchain service providers.
While the specific compliance laid down under IT Act, rules and regulations made there under will have to be complied with by the blockchain service providers including exercising due diligence. However, one of the biggest challenges that needs to be specifically looked into shall be any order received from competent Judicial Authority to remove or disable any information in the block given the working architecture and practical implementation of blockchain as a technology.
Blockchain service providers shall have in place standard SLAs (Service Level Agreements) while providing Blockchain as a Service where in such services shall be provided on “as-is” basis with very limited or practically no warranty. Further what constitutes the minimum level of service standards which the blockchain service providers have to follow has to be specifically addressed from a legal perspective.
BLOCKCHAIN AND IP
Once the data is created or entered on the block, lot of information is generated thereof. Who owns the intellectual property generated on the blockchain, is it the creator or the service provider or the company? Further who owns the online data set made available on the blockchain? These IP related legal issues are opening new flood gates.
BLOCKCHAIN AND GENERAL DATA PROTECTION REGULATION (GDPR)
With GDPR providing specific rights to the data subject with regard to their personal data, it is interesting to see how these said rights can be enforced in the light of blockchain technology. I would like to specifically focus and highlight the implementation of right to be forgotten which is the data subject right and how the same can be enforced in blockchain technology given the intrinsic nature of block chain technology.
Further, implementing privacy by design and default as specified by GDPR in blockchain technology specifically will draw a lot of practical legal challenges given the architecture of blockchain technology. Blockchain as a paradigm never sleeps and blockchain as a phenomenon never forgets.
BLOCKCHAIN AND CYBER SECURITY
Given the immutable functionality of the blockchain, one can understand that there is a relatively secured environment in blockchain and its working and operations. However, with cyber criminals being opportunistic and weaponizing the atmosphere, they may devise topical methodologies of targeting the cyber security of the blockchain. I think as cyber security driving the economies all around, cyber security legislations have started to emerge as a new ground reality and specific cyber security legal compliance and roles, responsibilities, obligations have to be addressed in the area of blockchain.
BLOCKCHAIN AND JURISDICTION
While Blockchain is a distributed ledger operating with data is stored on various blocks to form a blockchain. In case of any blockchain dispute, what has to be looked into the physical location of the respective block in dispute in the blockchain. However, in case the block in dispute is forming a part of the blockchain which is on a computer, computer network, computer resource physically located in one particular jurisdiction, then the courts located in that particular jurisdiction may be able to adjudicate such issues.
Given the intrinsic nature of the internet adoption by blockchain, any person across the globe may be able to add blocks to the blockchain. This opens up a pandora’s box of jurisdictional issues with regard to blockchain and disputes arising thereof.
However, in case of blockchain as a service, the usage of blockchain may be governed by its legal policies like terms and conditions and the like. In such cases, the blockchain disputes arising thereof shall be governed by the jurisdiction outlined in the terms and conditions.
BLOCKCHAIN CONTRACTS – LEGAL ANALYSIS
The contracts may be executed through self-executing or automatic programs in the blockchain wherein the contract is embedded in the code itself subject to fulfilment of certain conditions or criteria specified thereof in such code. Such contracts using blockchain are generally termed as “Smart Contracts”. Given that blockchain technology generates Hash that is used as an identifier to authenticate Smart Contract, this brings in cyber legal challenges to the table.
While Smart Contracts are the contracts executed using blockchain make use of Hash authentication mechanism, the IT Act specifically stipulates that the authentication has to be done using electronic signatures obtained from a certified authority. This brings in cyber legal issues relating to enforcement of smart contracts. Once the Smart Contract is generated, how do we dispute it? Not just that the frustration of Smart Contract is also challenging.
BLOCKCHAINS AND Alternative Dispute Resolution (ADR)
While Smart Contracts leads the way, arbitrators follow. Building dispute resolution and arbitration into transactions and blockchain shall seem interesting. Crowd sourcing arbitration is spinning a new colour to the wheel of dispute resolution with platforms like Kleros- Blockchain Dispute Resolution Layer, Jury. Online decentralised dispute resolution platform using blockchain becoming the new ground reality. Further, bringing together Game Theory (incentive based decision making), Cryptography and blockchain will be the new cherry on the cake for ADR.
BLOCKCHAIN EVIDENTIARY VALUE
While Section 62 of the Indian Evidence Act, specifically as per explanation 2 which states that if number of copies of documents are created by mechanical process, every such document is a primary evidence.
While blockchain is a distributed ledger wherein all copies are created by a mechanical process in one go, considering the immutable and tamper proof nodes of Blockchain, the authencity and veracity of information stored therein is completely upheld.
Applying this proposition, Distributed Ledger can also be considered as a primary evidence.
However, Section 65 B may bring in a legal challenge since establishing the ownership of a Blockchain is challenging.
BLOCKCHAIN AND CRYPTO CURRENCY
Crypto currency is a digital currency that runs on Blockchain. While Blockchain is the main domain Crypto Currency is one of its applications. Imagine you are in a movie theatre and you enter the theatre and you exchange your cash for Crypto Coins. You may be able to use this Crypto Coins to purchase refreshments in the theatre, however outside the movie theatre these Crypto Coins have no legitimate purchasing power. Considering the above scenario, the movie theatre is a blockchain network providing an echo system for its viewers, allowing the Crypto Coins to come into play and transaction.
Given the kind of positive connotation offered by the blockchain technology, there is a need to have a dedicated blockchain legislation, to address and handle the specific legal, policy, reegulatory issues surrounding Blockchain. I believe that is the way to the future, and we cannot walk the walk without addressing the specific legal nuances brought forth by blockchain. Cyber Law, Cyber Security are going to act as key catalysts in the manifestation of blockchain legislation and blockchain jurisprudence. While Molta is the Blockchain island of the world, as also Estonia, Swiss, Belarus have already made their first step ahead to come up with Blockchain Laws. It will be interesting to see how the Law, Legislation and Jurisprudence will evolve in India and countries of the World as time passes by.
The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.
For the latest news Download The Daily Guardian App.
Claim of juvenility can be raised before any court, at any stage, even after final disposal of the case: SC
It is really good to see that in a learned, laudable, landmark and latest judgment titled Ashok vs The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No(s). 643/2020 (Arising out of impugned final judgment and order dated 14-11-2017 in CRA No. 455/1999 passed by the High Court Of M.P. at Gwalior) that was delivered finally on November 29, 2021, the Apex Court has minced no words to make it clear that the claim of juvenility can be raised before any Court, at any stage, even after disposal of the case. So there should be no more confusion anymore pertaining to this! It must be specifically mentioned here that the Bench of Apex Court comprising of Hon’ble Ms Justice Indira Banerjee and Hon’ble Mr Justice JK Maheshwari observed that if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.
To start with, the ball is set rolling in this brief, brilliant, bold and balanced judgment first and foremost by observing in the opening para that, “By a judgment and order dated dated 29.07.1999, the Additional Sessions Judge, Gohad, District Bhind, Madhya Pradesh, convicted the petitioner inter alia for offence under Section 302 of the Indian Penal Code and sentenced him inter alia to life imprisonment in Sessions Trial No. 260 of 1997. In the cause title of the said judgment and order, the petitioner has been described as Ashok, S/o Balram Jatab age 16 yrs 9 months and 19 days, R/o Village Anjani Pura, District Bhind.”
In hindsight, the Bench then brings out in the next para of this notable judgment that, “The petitioner filed an appeal being Criminal Appeal No. 455 of 1999 challenging his conviction and sentence. The said criminal appeal has been dismissed by the High Court by an order dated 14.11.2017, which is impugned in the Special Leave Petition(Crl.) No. 643 of 2020, filed by the petitioner.”
To put things in perspective, the Bench then points out in the next para that, “The incident which led to the conviction of the petitioner, took place on 26.07.1997. The petitioner claims that the petitioner was born on 05.01.1981. The petitioner was, therefore, approximately 16 years and 7 months old on the date of the incident.”
As we see, the Bench then envisages in the next para that, “In this Court, the petitioner has for the first time contended that he was a juvenile on the date of the incident. His conviction and sentence are, therefore, liable to be set-aside. The claim of juvenility was not raised in the High Court.”
Needless to say, the Bench then further mentions in the next para that, “The learned Additional Advocate General, appearing on behalf of the State argued that the claim of juvenility has been raised for the first time in this special leave petition.”
Be it noted, the Bench then while elaborating further and shedding more light observes in the next para that, “The Juvenile Justice Act, 1986, which was in force on the date of commission of the offence as also the date of the judgment and order of conviction and sentence by the Sessions Court was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000. The Act of 2000 received the assent of the President of India on 30.12.2000 and came into force on 01.04.2001. The Act of 2000 defined juvenile in conflict with the law to mean a juvenile, who was alleged to have committed an offence and had not completed 18th year of age as on the date of commission of such an offence.”
In retrospect, the Bench then mentions that, “Under the 1986 Act, the age of juvenility was upto the 16th year.”
It is worth noting that the Bench then hastens to add in the next para that, “Section 7A of the 2000 Act as inserted by Act 33 of 2006 with effect from 22.08.2006 provided as follows:-
“7A. Procedure to be followed when claim of juvenility is raised before any Court.-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section(1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.””
Most significantly, the Bench then succinctly states what forms the cornerstone of this noteworthy judgment that, “The claim of juvenility can thus be raised before any Court, at any stage, even after final disposal of the case and if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.”
For the sake of clarity, the Bench then also wastes no time in pointing out in the next para that, “Even though the offence in this case may have been committed before the enactment of the Act of 2000, the petitioner is entitled to the benefit of juvenility under Section 7A of the Act of 2000, if on inquiry it is found that he was less than 18 years of age on the date of the alleged offence.”
Going ahead, the Bench then states that, “It is true as pointed out by the learned Additional Advocate General appearing on behalf of the State that the certificate of Akikrit Shash, High School, School, Endouri, District Bhind, Madhya Pradesh relied upon by the petitioner is stated to have been issued on 17.07.2021. The said certificate does not specifically mention that the date of birth 01.01.1982 had been entered at the time of first admission of the petitioner at the primary school level.”
What’s more, the Bench then further mentions that, “Furthermore, there is a birth certificate issued by the Gram Panchayat, Endouri, District Bhind, Madhya Pradesh which indicates the date of birth of the petitioner as 05.01.1982 and not 01.01.1982 as recorded in the school certificate referred to above.”
Adding more to it, the Bench then remarks that, “The entry in the records of the Gram Panchayat, Endouri, District Bhind, Madhya Pradesh, also do not appear to be contemporaneous and the certificate has been issued in the year 2017.”
Furthermore, the Bench then adds in the next para that, “However, as pointed out by Mr. M.P. Parthiban, learned counsel appearing on behalf of the petitioner that the Sessions Court has recorded the age of the petitioner as 16 years, 9 months and 19 days. The petitioner has been in actual custody for over three years.”
It cannot be glossed over that the Bench then enunciates that, “The 2000 Act has been repealed and replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 21 of the 2015 Act provides as follows:
“21. Order that may not be passed against a child in conflict with law. – No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force.””
Quite significantly, the Bench then holds and directs in the next para that, “Considering that the Trial Court has recorded the age of the petitioner as 16 years and odd, and has been in actual custody in excess of three years, which is the maximum for a juvenile, we deem it appropriate to grant the petitioner interim bail on such terms and conditions as may be imposed by the Sessions Court. We further direct the Sessions Court to examine the claim of the petitioner to juvenility in accordance with law, and submit a report to this Court within one month from the date of communication of this order.”
For the sake of clarity, the Bench then holds that, “The concerned Sessions Court shall be entitled to examine the authenticity and genuineness of the documents sought to be relied upon by the petitioner, considering that the documents do not appear to be contemporaneous.”
Without leaving any room for doubt, the Bench then holds that, “In the event the documents are found to be questionable/unreliable, it will be open to the Sessions Court to have the petitioner medically examined by taking an ossification test or any other modern recognized method of age determination.”
Finally, the Bench then holds that, “List after the ensuing winter holidays.”
In essence, the Apex Court Bench comprising of Hon’ble Ms Justice Indira Banerjee and Hon’ble Mr Justice JK Maheshwari have thus clearly, cogently, composedly and convincingly laid down that the claim of juvenility can be raised before any Court, at any stage, even after disposal of the case. We thus see that the Apex Court has made it clear that the juvenile can claim the benefit of juvenility even after final disposal of the case and the sentence, if any, passed by a Court, shall be deemed to have no effect. This is to ensure that a juvenile does not suffer immensely inspite of being even a juvenile.
No doubt, it is definitely a right step in the right direction and the Apex Court deserves all the kudos for having reiterated the right position of law on this which directly benefits the concerned juvenile even after a sentence is passed against him/her. There is no reason of any kind to differ with what the Apex Court has laid down in this case so convincingly and so sagaciously. Of course, it ought to be implemented in letter and spirit and all the courts are certainly duty bound to always abide by what the Apex Court has laid down in this leading case so very commendably!
Addressing issues related to NRI marriages
The institution of marriage is the nucleus of the social system. It forms the very foundation on which the splendid edifice of the social system stands. This sacred matrimonial bond gives birth to a plethora of rights and obligations. With the increase in Indian Diaspora, matrimonial alliances of Indian women with overseas Indian men are rising proportionately.
As reported by National Commission for Women, typical instances of issues that arise in NRI marriages are Abandonment of the women right after marriage, leaving her women during pregnancy, after child-birth, abandonment of mother-child duo; physical and mental abuse, desertion without reasonable cause, false information/Concealment about job, immigration status, earning, property, marital status and other material particulars, to deceive into the marriage, amongst others. Moreover, legal issues related to jurisdiction of courts, service of notices/orders, enforcement of orders; simultaneous retaliatory legal proceeding by husband in the other country, taking advantage of more lenient divorce grounds, obtaining ex-parte divorce and non-submission to the legal proceedings in any ways to summons, or even warrant of arrest are also encountered by women. Through the present article, author attempts to simplify the substantive and procedural laws applicable to the NRI parties to matrimonial disputes.
To understand the interplay of laws in cases involving NRIs, it is pertinent to mention that there are two sets of laws; one is Substantive that determines the rights and liabilities of the parties, whereas the other one is procedural which doesn’t create any right or liability rather lays down the procedural framework through which the substantive rights are legally enforced. Substantive Law governing the rights and liabilities of the parties to NRI Marriages is the Law under which the marriage is solemnised. All direct and incidental rights emanating from marriage, like maintenance, divorce, guardianship, custody, inheritance, succession and adoption are also regulated by the same substantive law. For example- If two Indian Citizens (Hindu by religion), marry in India as per Hindu Rituals, their matrimonial rights would be governed by Hindu Marriage Act, 1955 even if they are residing outside India.
Divorce cannot be granted on any ground which is not provided in the governing statute even if it is a valid ground in the country of their residence. To illustrate, Irretrievable Breakdown of Marriage is not a valid ground of divorce under Hindu Marriage Act, 1955; hence an NRI Couple cannot seek divorce on this ground in foreign country. If any Foreign Court has granted divorce on this ground, such a decree will be null and void in India. In Y. Narasimha Rao v. Y. Venkata Lakshmi, Supreme Court held that a Foreign Decree is not executable in India if the ground on which the divorce is granted by the foreign court is not a ground available under Indian Laws.
Section- 3 and 4 of the Indian Penal Code, 1860 (IPC) read with Section-188 of the Criminal Procedure Code, 1973 extend application of IPC to Indian Citizens residing abroad. If any person commits Matrimonial Offence which is punishable under IPC or any other special law in India in foreign land, the perpetrator can be booked and punished under Indian Laws. Matrimonial Offences are mentioned in Chapter XX (Section- 493-498A) of Indian Penal Code, special laws and personal laws. Dowry-related offences are punishable under Section- 304B of IPC and Dowry Prohibition Act, 1961. If in-laws while sitting in India exert pressure for dowry on their daughter-in-law living abroad, they can be booked for Abetment to Dowry/Cruelty as Section 108 of IPC expressly, states, “A person abets an offense who, in India, abets the commission of any act within and beyond India which would constitute an offense as if committed in India.”
Procedural Laws are lex fori in nature and procedure is governed by the law where the suit is instituted. Civil Proceedings can be initiated either at the place where the spouse ordinarily resides, or place where the couple last resided together, or place where the petitioner is currently residing, whether overseas or India. Special power of attorney (SPA) can be used by the NRI husband/wife living abroad to file a divorce case in India. In case the errant party despite repeated summons doesn’t appear before the Indian Court, warrants may be issued and uploaded on Ministry of External Affairs Website and shared with the Indian Embassy Office in the Foreign Country for compelling his/her attendance.
Provisions related to Execution of Foreign Divorce Decree in India are contained in Section 13 and 44-A Code of Civil Procedure, 1908. For a foreign decree to be valid and enforceable in India, it must fulfil the conditions mentioned in Section 13. In Y. Narasimha Rao Case (Supra), Supreme Court ruled the following conditions of a valid foreign decree-
Both parties voluntarily and unconditionally subject themselves to the jurisdiction of the Foreign Court
Decision is given on the “merits” of the case
Ground of divorce in the decision of the Foreign Court must be a ground available under the Indian Law
Decree must be free from fraud or any misrepresentation
IMPOUNDING OF PASSPORT
Section-10 of The Passport Act lays down grounds and procedure for revocation of passport by Passport Authorities. Revocation or Impounding of a passport on account of any involvement of matrimonial offence is not per-se mentioned. However, passport may be revoked / impounded on the following grounds:
If the holder has been convicted of any offence by a court in India for an offence involving moral turpitude and sentenced to an imprisonment for not less than two years
If criminal proceedings are pending in a court in India
If a warrant or summons for appearance or an arrest warrant has been issued by a court
In Rajiv Tayal v. Union of India (2005) passport of NRI husband was impounded after continuous failure on his part to respond to summons by the Indian Courts under Section 10 of the Passport Act. The husband challenged the revocation order passed by Consulate General of India, New York by invoking writ jurisdiction which was rejected by the High Court and he was ordered to appear before the Indian Court. Fines can be imposed as per Schedule to the Act in case of non-disclosure of correct marital status/details of pending matrimonial case or minor suppressions of information regarding marital status/name of spouse etc.
NRI Cell of National Commission for Women is the nodal agency for resolving issues related to NRI marriages from across the country and abroad. Online Complaint can be filed with NRI Cell of NCW- http://ncwapps.nic.in/NRICellcms/ or sent via email- email@example.com
Besides, Ministry of External Affair’s Online Consular Grievances Monitoring System- MADAD helps Indians abroad, including women married to NRIs. Distressed woman or any member of her family/friend can register a complaint under this Module.
For legal aid and advice on any matter, National/State Legal Services Authority can be contacted. As per Section-12 of The Legal Services Authorities Act, 1987, every woman is entitled to free legal aid in India. If the victim wishes to file case in India, complaint can be filed through NALSA Mobile Application or NALSA on-line complaint portal.
To support Indian women in distress by providing financial and legal assistance, Ministry of External Affairs implemented Scheme, titled “Scheme for giving legal / financial assistance to Indian women deserted by their overseas Indian / foreigner husbands”. The scheme is available to Indian women who have been deserted by their overseas Indian / foreigner husbands or are facing divorce proceedings in a foreign country, subject to the conditions mentioned therein. Besides, Registration of Marriage of Non-Resident Indian Bill, 2019 which is currently referred to Parliamentary Standing Committee makes registration of NRI Marriages compulsory. Failure to register marriage within 30 days would lead to impounding of passport by the passport. Moreover, the Supreme Court is also yet to formulate guidelines for safeguarding the interest of NRI married women in the PIL filed by NGO, Pravasi Legal Cell.
(Bhawna Gandhi is a Delhi-based Lawyer and Columnist, currently working as Researcher at Delhi State Legal Services Authority)
Why contract law is essential for business transactions
A contract with extensive operational content is used to manage all parties’ distribution operations, whereas a contract with significant technical material is used to monitor the cluster’s output activities. The parties’ relationships have a clear impact on the contract’s execution. The transactional relationship leads to a specific deal use, but the relative relationship leads to a non-specific deal use.
Since the human race began and human society has developed, there have been many laws and policies practiced through out the decades. In the past when the barter system was in practice and people used to exchange goods amongst them, people were unable to meet their needs properly so for that the concept of money and company into light and was accepted by everyone. In the contemporary era, the economy is growing fastly and vastly and the globe has accelerated the corporate transactions and business with the help of a legal instrument that is known as “Contract”. The Law of Contract is one of the oldest mercantile laws being used in India since 1872. The term “Contract” is referred to as the agreement between two parties that are contractual in nature that describes the responsibilities of the parties where the offeror makes an offer to enter into a contract with the offeree. If the offeror agrees to do something or to refrain from doing something and accepts the offer, then contact is made.
The Law of Contract is not only an important thing for business rather it is an essential law to carry on trade, business or commerce smoothly as it definiteness in the business transactions that affects the entire society. India is considered as a developing country with a mixed economy and in the 21st century, several new businesses and startups are emerging across the country. Make in India, Startup India, Execute India, and few other initiatives were started by the government to make India grow in the global market. These got boosted up when the Pandemic hit the nation and everything went virtual. People started working from and this was the time when many new startups and businesses came and grew up.
Every business or startup goes through a business transaction. A business transaction is basically an event or an occasion that involves an interchange of goods or money or any kind of services between two or more parties. It is very important as it provides a brief view of the interactions taking place between the company or organizations for accomplishing the business objective.
Any contract is enforced by the law as it ensures that if any party fails to do whatever he/she has agreed to, then in that case the other party may approach the Court of Law. to demand the damages for the injuries done by the violation of the law. However, any contract can only be taken forward and executed if it satisfies these conditions – agreement, free consent, competence, consideration, legal objective, and the contract not expressly declared null and void. Basically, a contract is an agreement that is written and agreed upon by all the parties involved in it. It not only provides an oppurtunity and smoothness for the execution of all the tasks and the fulfillment of the target as written in the agreement. It acts as a path of positive attachment with the clients.
Contract management, in this context, is a strategy for managing legally drafted contracts with clients or anybody else. A contract guarantee is a common commercial practise that clarifies requirements and aids in the delivery of the intended outcomes as quickly as feasible. It is important to obtain a legally binding contract from a lawyer.
Contracts become particularly significant due to the following factors:
1. PREVENTION OF MISCOMMUNICATION AND MISUNDERSTANDING:
This is one of the most common issues encountered in any organization for various reasons. Contract preparation is a mandate to deter such situations. Both the parties have to read and follow all the negotiated laws as it has a huge effect on the disputes between the parties and thus can make a huge effect on the entire firm.
2. COMPREHENSIVE PROOF OF INFORMATION:
A contract’s principal purpose is to memorialise all of the details agreed upon by both parties. The contract provides a thorough understanding of the services provided by a third party as well as the financial obligations that must be met by the third party. This data will be used as legal facts and is extremely important to the transaction.
3. ENSURES CONFIDENTIALITY:
A Non-Disclosure Agreement (NDA) that covers all sensitive material is required to ensure confidentiality. The parties concerned are not entitled to the disclosure of the business or to a monetary exchange with the third party, according to this agreement. They will be held accountable for breach of contract if they reveal the information.
4. OFFERS PROTECTION:
The duration of the contract and the collection of responsibilities are specifically stated in the legal agreement, which plays an essential role in ensuring security between the parties. If one of the parties files a lawsuit against the other, the contract may be used as evidence.
5. WORKS AS A CORPORATE RECORD:
The contract is the primary and most important document establishing mutual consent to the procedures set forth in the agreement. According to the contract, it can be used for comparative reasons. The length of the contract is usually noted in the contract, which provides extra direction on termination terms. In the worst-case situation, the contract may be cancelled if the other party fails to follow the contract’s regulations or ignores the conditions.
Before, commercial transactions were far too simple. Two individuals used to agree to make a transaction and both parties kept their word, but today’s professionals are aware of the history of deal-breaking and litigation that have occurred in their industry. Contracts are regarded the most significant item in any business since they explain both parties’ expectations and protect both parties if those expectations aren’t met adequately and a lockin price is paid for the services. Because it is implemented in our daily lives, contract law is extremely important. Life will not run as smoothly as it should without the contract. Any agreement in today’s period involved a contract, whether it was for buying raw materials, renting property, collecting money, or employment. Much of what the government does, in their opinion, derives from the action of the appropriate Parliament, and the services they give are increasingly privatised and delivered in accordance with the contract.
Various studies have been conducted in the past to demonstrate how the contract is utilised to replace the parties’ loss of trust. The problem is that protecting against probable future occurrences is difficult, if not impossible. The participants’ primary goal is to protect oneself in the event of a possible relationship involving complex and unusual interactions. Contract negotiations are reviewed in five stages: bid, discussion, adaptation, preparation, and the final negotiating process. The end outcome will most likely be a one-sided deal. There may also be a link between the length of the conversations and the proximity of the meetings. Long-term interactions, according to the model, are likely to result in more notable closeness as the parties learn more about one another. On the other hand, if the parties already have a good connection, the conversations may be brief.
The aforementioned circumstances make contracts inevitable for any firm that wants to keep its sensitive information safe and secure from the bad guys. It also protects employees when they fail to follow the terms of the contract by deceiving them with promises. Furthermore, we tend to believe that the negotiation approach, the contract, and its application are at the heart of the study. As a result, the contract itself contains a critical outcome on the contract’s employment. During a right-of-use arrangement, an agreement made by the granting party is used to govern individuals at intervals the opposing party’s company. This horrible contract is used in a variety of ways. A typical contract is discovered to have a non-differentiated usage. A contract that is not as thorough as a long term is perceived in a very different light.
A contract with extensive operational content is used to manage all parties’ distribution operations, whereas a contract with significant technical material is used to monitor the cluster’s output activities. The parties’ relationships have a clear impact on the contract’s execution. The transactional relationship leads to a specific deal use, but the relative relationship leads to a non-specific deal use. However, drafting a contract that takes these issues into account might be a difficult and time-consuming process. It’s also a good idea to seek the advice of a seasoned professional.
The Law of Contract is not only an important thing for business rather it is an essential law to carry on trade, business or commerce smoothly as it definiteness in the business transactions that affects the entire society. India is considered as a developing country with a mixed economy and in the 21st century, several new businesses and startups are emerging across the country. Make in India, Startup India, Execute India, and few other initiatives were started by the government to make India grow in the global market. These got boosted up when the Pandemic hit the nation and everything went virtual. People started working from and this was the time when many new startups and businesses came and grew up.
Unlocking the reality of preventive detention laws in India
Criminal laws act as a tool to prosecute criminals and also to prevent or reduce the risk of an anticipated future harm. Such measures enable the state to criminalize conduct at an early stage in order to allow the authorities to take action, to incapacitate suspected future wrong doers, keeping them behind the bars for an extended period and all this is done in the garb of public protection and security. Classical theories of jurisprudence comprehend the relationship between states and citizens. A citizen’s obligation to obey to the sovereign is a tacit form of consent and in return the state owes a deemed duty to protect the citizens from hazards, threats and any form of violence. With this rationale, the state proceeds towards fostering in itself the power the prevent an individual or a group from committing any harm. Broadly, preventive detention is a measure if it is created to avert or reduce the frequency or impact of an unacceptable risk or harm.
MEANING OF DETENTION
There is no universally accepted definition of preventive detention but in general sense preventive detention means to detain a person in order to prevent him from committing any possible future crime. There is another similar type of detention called ‘administrative detention’ which is more often used in civil law countries and on the other hand preventive detention’ is more often used in common law countries. The major difference between two types of detention is that in a former case detention is a tool for administration and on the other hand in the later case detention is a tool to prevent a ‘potential threat’.
There is also a third type of detention, ‘punitive detention’ the main purpose of which is to punish the person for an offence committed only after a trial and conviction in a court of law. As the name suggests the major difference between punitive detention and preventive detention is that one talks about punishment and other about prevention.
CONSTITUTIONAL PARADOX OF PREVENTIVE DETENTION LAWS IN INDIA
India chose to be a democratic country with inherent values of human rights embedded in our Constitution. However, the irony lies in the fact that the Constitution makers still chose to grant exemption to prevention detention laws when once they were victims of the same despotic laws.
Under Entry 9 the Union list, Parliament has the absolute power to enact laws with regard to preventive detention for reasons connected with security, defence and foreign affairs of India. Under Entry 3 of the Concurrent, both the state and the central government have been vested with the powers of enactment of such laws which related to the maintenance of public order, maintenance of supplies and services essential to the community etc. Preventive detention finds place in Constitution and that too under Fundamental Rights. Article 22(3) provides that: “if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under Article22 (1) and 22 (2) shall not be available to that person.” This is why article 22(3) cannot be said as the fundamental right but a fundamental danger to the liberty of a person.
The Criminal Procedure Code of India also provides for Preventive detention under Section 151 as: “A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.”
In Union of India v Paul Nanickan and Anr, the Supreme Court of India stated: “the object of preventive detention is not to punish a man for having done something but to intercept him, before he does it, and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence.”
The main purpose for inserting preventive detention laws was to prevent the commission of a crime which are prejudicial to law and order of a state but it has failed miserably to serve its purpose and on the other hand is proving to be a tool to curtail the liberty of an individual.
Clause (3) of Article 22 is the main escape that outrightly exempts the applicability of rights of an arrested person as conferred by Article 22. Preventive detention thus allows detention without legal trial. At the same time, the constitution provides safeguards in case of misuse of preventive detention laws.
JURISPRUDENCE OF PREVENTIVE DETENTION LAWS VIA THE INDIAN JUDICIARY
The first case in post-independent India where the constitutionality of the Preventive Detention Act, 1950 was questioned was the AK Gopalan Vs State of Madras. The court gave a green flag to the Preventive Detention Act because of the presence of the explicit provisions of Article 22(5). Although the petitioner made a good attempt by challenging the law in violation of Article 14, 19 and 21 of the Constitution. Later, PDA lapsed in 1969 and Parliament enacted the Maintenance of Internal Security Act (MISA) two years later. The infamous emergency of 1970s exercised MISA as a political weapon to curb political criticism and dissent. MISA expired in 1978 but paved way for the birth of another preventive detention law which is National Security Act (NSA) which is in effect today. Simultaneously, in 1967 the government enacted Unlawful Activities Prevention Act (UAPA) to restrict the fundamental rights of freedom of speech and expression, freedom to assembly peaceably without arms and to form associations. UAPA has undergone half a dozen amendments since then and is currently also recognized as a terror law.
It is pertinent to note that, the law in India allows detention of individuals in order to prevent act that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard in the case of Ram Manohar Lohia v. State of Bihar, wherein the court differentiated the concepts pf ‘security of state, public order and law and order’. The Court concluded that law and order represent the largest circle within which there is a smaller circle of public order and the smallest circle is the security of the state. So, it can be seen that what may affect law and order might not affect public order, similarly what may affect public order might not affect security of state.
However, the state is trying to normalize preventive detention under the umbrella of ‘national security’ and invoking judicial remedies in preventive detention cases becomes a rare option. The Apex Court has also mistakenly made a dangerous viewpoint in the case of Union of India Vs Dimple Happy Dhakkad where the accused were already arrested under the regular criminal process but were also subject to the preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) as the case involved gold smuggling. Bail applications were rejected twice, The Apex Court very narrowly failed to consider the pre-existing detention of the accused when they were already languishing in jail for 2 months before the preventive detention order. The Supreme Court relied completely on the doctrine of the ‘subjective satisfaction’ of the detaining authority. The author undoubtedly admits the limitations of judicial review in detention orders but at the same time our Apex Court has itself widened the horizons of judicial review in arbitrary detention orders. The judiciary as in ADM Jabalpur has transformed itself to completely outlaw its tragic effect of fundamental freedoms and constitutionalism and overruled in the landmark Puttaswamy judgment. Moreover, the court in the case of Prabhu Dayal Deorah Vs. D.M Kamrup have rightfully assented to test the grounds on which the detention orders are passed on the lines of arbitrariness and vagueness. In another case of Bhawarlal Ganeshmalji v. State of Tamil Nadu, the court created a judicial requirement that the allegation must have a ‘live link’ with the present situation to justify the need of preventive detention.
It is significant to substantiate the recent judgment of Allahabad High Court in the Habeas Corpus case of NuzhatPerween Vs State of Uttar Pradesh. Briefly stating the facts of this case, Dr. Kafeel Khan (son of Nuzhat Perween) gave a public speech in Aligarh Muslim University. It was alleged that his speech incited feelings of communal disharmony and also lead to violent protests by some groups of students. A preventive detention order was passed against him to maintain public order in the district and he was put behind the bars. He applied for the bail and the bail was granted. What happens next is the episode which actually happens in our system. The executive did not enforce the bail order. When the court passed a second order to release Dr. Khan, the state claimed that the order was notified later and they have taken a preventive detention order authorized by the District Magistrate, Aligarh. When this matter reached the constitutional High Court of Allahabad, it took six months for a decision to be made. The inordinate delay is in itself a violation of the fundamental liberty of a person whose crime is a mere allegation. The petitioner mentioned that he did not have adequate material and thus his right to effective representation against is detention is violated. The Court agreed with this argument because the petitioner was given the CD of his speech but was given any means to play his disc. He was neither supplied the main transcript which was the primary basis for his preventive detention. Next, the court was asked to determine the contents of his speech as to whether it is of such a nature that a reasonable person could apprehend any disturbance to public order. The state correctly claimed that it is not open for the courts to wear the shoes of the preventive detention authority and the court cannot substitute their opinion in place of the ‘subjective satisfaction of the detaining authority’.
However, the court walked one step ahead and contradicting the above doctrine stated that ‘The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned.’ In line with this principle of judicial scrutiny in the detention authority, the court noted that the speech delivered by the detenu was presented in parts by the police and not holistically. The speech is in no way against the maintenance of public order and therefore the closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions.
In the recent bail order of the Delhi High Court in the case of Devangana Kalita Vs State of NCT of Delhi the court strongly observed that the state in its anxiety to suppress dissent has blurred the line of constitutionally guaranteed right to protest and terrorist activity. The Court uprightly confronted Section 43D(5) of the Unlawful Activities Prevention Act. Quoting the court ‘The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA’
In the latest 2019 amendment, individuals can also be designated as ‘terrorist’ by way of Section 35. Not just that, under Section 43D(5), bail can be denied by relying upon the prosecution documents even though they are inadmissible in courts. This archaic provision has been affirmed by the Apex Court of the country in the case of National Investigation Agency Vs. Zahoor Ahmed Shah Watali. This is the point of concern.
The tragic death of Father Stan Swamy is one such harshest reality of UAPA who was languishing in jail at the age of 84, a man who fought for the rights of the tribals and is applauded by the world. Many other renowned educators and activists like Professor Sudha Bhardwaj, Tamil Poet Varvara Rao etchave been detained under this law in the controversial ElgaarParishad and Bhima Koregaon case. Student activists have been put behind the bars for more than a year only because they dissent from those in power. The dissenting opinion of Hon’ble Justice DY Chandrachud in the Romila Thapar Case enlightens the current scenario of the arbitrariness of these laws. The complexity is embedded in Article 22 which guarantees protection against arrest and detention, yet it provides exception for preventive detention laws and our so called ‘democratic governments’ have time and again enacted preventive detention laws like MISA, UAPA, TADA, POTA, NSA etc. to curb voice raised against them.
All these legislations outlaw the fundamental rights coupled with the basic human rights. Article 10 of the Universal Declaration of Human Rights embodies the rule of fair hearing in every circumstance and this has been recognized as the basic human tenant. The state, under the misconception of protecting the security of the country, has actually put the country in a state of turmoil. Where at one instance Arnab Goswami is granted bail in 24 hours,
Father Stan Swamy was denied medical bail every time he knocked the doors of the court. The question is who actually are we protecting under these arbitrary preventive detention laws. The answer is none. We are actually protecting the state from dissent.
The constitutional courts of the country must remind themselves the crucial judgment if Maneka Gandhi Vs. Union of India which has expanded the horizons of Article 21 and the court also heard a batch of petitions challenging the National Security Act. In the case of A.K. Roy Vs Union of India upheld the validity of the Act by completely relying on Article 22 (3)(b). After this judgment, preventive detention laws have never been tested constitutionally and this settled proposition is proving to be very unsettling now. The author argues and concludes by stating that the narrowed interpretations of Article 22 have ceased to exist when the Apex Court re-affirmed due process into the constitution and the State cannot rely on this provision anymore while putting people behind the bars for months without giving them adequate legal representation. The judiciary must uphold constitutionalism of the constitution.
It is pertinent to note that the law in India allows detention of individuals in order to prevent acts that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the Constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard.
SC RIGHTLY OVERTURNS TWO BOMBAY HC JUDGEMENTS ON POCSO
In a most significant turn of events, we saw how just recently on November 18, 2021, the Apex Court in Attorney General for India v. Satish and another in Criminal Appeal No. 1410 of 2021 (@ Special Leave Petition (CRL) No. 925 of 2021) and connected appeals, held that touching a child with sexual intent even through clothing is an offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act thus setting aside two separate decisions of the Bombay High Court passed on January 15 and January 19 that made skin-to-skin physical contact a necessary condition to hold someone guilty of sexual assault. The Court directed the convicted persons top surrender within four weeks to undergo the remaining sentence of three years and five years awarded to them by a special POCSO court in 2020. It may be recalled that Attorney General KK Venugopal was the first to file an appeal against one of the High Court judgments in question. Later, we saw how the Maharashtra government followed by the National Commission for Women also filed appeals. Even the accused were represented in the case and the court appointed senior advocate Siddharth Dave to assist in the matter as amicus curiae.
While underscoring the detrimental effect of allowing such an interpretation, a Bench of Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi said that, “Restricting the interpretation of the words “touch” or “physical contact” to “skin-to-skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision.” Through two separate but concurring views, Justice Bela M Trivedi writing for herself and Justice UU Lalit and Justice S Ravindra Bhat traced the origin of the words “touch” and “physical contact” and noted that “skin-to-skin” contact was never intended to be incorporated by Parliament while enacting the POCSO Act in 2012.
To start with, it is first and foremost pointed out by the Bench in para 2 after granting leave as stated in para 1 that, “The four Appeals filed by the appellants – Attorney General for India, by the National Commission for Women, by the State of Maharashtra and by the appellant-accused Satish respectively, arising out of the Judgment and Order dated 19.01.2021 passed in Criminal Appeal No. 161 of 2020 by the High Court of Judicature at Bombay, Nagpur Bench, and the Appeal filed by the Appellant-State of Maharashtra, arising out of the Judgment and Order dated 15.01.2021 passed in the Criminal Appeal No. 445 of 2020 by the same Nagpur Bench, encompass similar contextual legal issues, and therefore, permit us this analogous adjudication.”
I. FACTUAL MATRIX IN CASE OF THE ACCUSED-SATISH
In hindsight, the Bench then recalls in para 3 that, “The Extra Joint Additional Sessions Judge, Nagpur (hereinafter referred to as the Special Court) vide the Judgment and Order dated 5th February, 2020 passed in the Special Child Protection Case No. 28/2017 convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (For short POCSO Act). Being aggrieved by the same, the accused-Satish had preferred an appeal being Criminal Appeal No. 161 of 2020 in the High Court of Judicature at Bombay, Nagpur Bench. By the Judgment and Order dated 19th January, 2021, the High Court disposed of the said appeal by acquitting the accused for the offence under Section 8 of the POCSO Act, and convicting him for the offence under Sections 342 and 354 of the IPC. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- in default thereof to suffer R.I. for one month for the offence under Section 354 and to undergo imprisonment for a period of six months and to pay fine of Rs. 500/-, in default thereof to suffer R.I. for one month for the offence under Section 342 of IPC.”
To put things in perspective, the Bench then envisages in para 4 that, “The case of the prosecution before the Special Court as emerging from the record was that the informant happened to be the mother of the victim aged about 12 years. The accused-Satish was residing in the same area where she was residing i.e. Deepak Nagar, Nagpur. On 14.12.2016 at about 11.30 a.m., the victim had gone out to obtain guava. Since she did not return back for a long time, the informant-mother went in search of the victim. At that time, one lady Sau Divya Uikey who was staying nearby, told her that the neighbouring person (the accused) had taken her daughter along with him to his house. The informant, therefore, went to the house of the accused. The accused at that time came down from the first floor of his house. The informant having made inquiry about her daughter, the accused told her that she was not there in his house. The informant, however, barged into the house of the accused to search her daughter as she heard the shouts coming from a room situated on the first floor. She went to the first floor and found that the door of the room was bolted from outside. She opened the door and found her daughter who was crying in the room. On making inquiry as to what had happened, her daughter told her that the accused had asked her to come with him and told her that he would give her a guava. He took her to his house. He then pressed her breast and tried to remove her salwar. At that time, the victim tried to shout but the accused pressed her mouth. The accused thereafter left the room and bolted the door from outside. The informant, on having learnt such facts, went to the Police Station along with her daughter to lodge the complaint. The said complaint was registered as Crime No. 405/2016 at Police Station Gittikhadan, Nagpur. It was further case of the prosecution that when the police rushed to the spot, they saw that the accused was trying to commit suicide by hanging himself. He, therefore, was sent to the hospital for treatment. The spot panchanama was drawn and the statement of the victim was got recorded under Section 164 of Code of Criminal Procedure before the Magistrate. After the completion of the investigation, the charge-sheet was filed in the Special Court, Nagpur against the accused. The Special Court after appreciating the evidence on record, passed the Judgment and Order of conviction and sentence as stated hereinabove.”
Briefly stated, the Bench then recollects in para 5 that, “The High Court in the appeal filed by the accused-Satish acquitted the accused for the offence under Section 8 of the POCSO Act and convicted him for the minor offence under Sections 342 and 354 of IPC by making following observations:
“18 . Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific details 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 certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.”
As a fallout, the Bench then reveals in para 6 that, “The above observations/findings made by the High Court, have caused the Attorney General for India, the National Commission for Women and the State of Maharashtra to file the appeals before this Court. The accused has also filed the appeal challenging his conviction for the offences under Section 354 and 342 of the IPC.”
Be it noted, the Bench then holds in para 40 that, “In the light of the afore-discussed legal position, if the findings recorded by the High Court are appreciated, it clearly emerges that the High Court fell into error in case of the accused-Satish in holding him guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act. The High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC. The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.”
It cannot be glossed over that the Bench then observes in para 41 that, “The interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. It may be noted that the principle of “ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, 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, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act.”
Quite significantly, the Bench then holds in para 42 that, “The surrounding circumstances like the accused having taken the victim to his house, the accused having lied to the mother of the victim that the victim was not in his house, the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother, were proved by the prosecution, rather the said facts had remained unchallenged at the instance of the accused. Such basic facts having been proved by the prosecution, the Court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under Section 30 of the said Act. The said presumption has not been rebutted by the accused, by proving that he had no such mental state. The allegation of sexual intent as contemplated under Section 7 of the Act, therefore, had also stood proved by the prosecution. The Court, therefore, is of the opinion that the prosecution had duly proved not only the sexual intent on the part of the accused but had also proved the alleged acts that he had pressed the breast of the victim, attempted to remove her salwar and had also exercised force by pressing her mouth. All these acts were the acts of “sexual assault” as contemplated under section 7, punishable under Section 8 of the POCSO Act.”
II. FACTUAL MATRIX IN THE CASE OF THE ACCUSED-LIBNUS
Of course, the Bench then lays bare in para 7 that, “The Additional Sessions Judge, Gadchiroli (hereinafter referred to as the Special Court) vide the judgment and order dated 5th October, 2020 passed in the Special POCSO case no. 07/2019 convicted and sentenced the accused-Libnus s/o Fransis Kujur for the offences punishable under Section 448 and 354-A (1)(i) of IPC and Sections 8 and 10 read with section 9 (m) and 12 of the POCSO Act. Being aggrieved by the same, the accused-Libnus had preferred an appeal being Criminal Appeal No. 445 of 2020 in the High Court of Judicature at Bombay, Nagpur Bench. Vide the Judgment and Order dated 15th January, 2021, the High Court maintained the conviction of the accused for the offences under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act and set aside the conviction of the accused for the offences under Sections 8 and 10 of the POCSO Act. The High Court considering the nature of the alleged acts and the punishment provided for the alleged offences, modified the sentence imposed by the Special Court to the extent he had already undergone, and directed to set him free.”
In this context, it would be instructive to note that the Bench then mentions in para 43 that, “So far as the case of the other accused-Libnus is concerned, the High Court vide its impugned judgment and order, while maintaining the conviction of the accused for the offences punishable under sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act, has acquitted the accused for the offence under Sections 8 and 10 of the POCSO Act. Pertinently the High Court while recording the finding that the prosecution had established that the accused had entered into the house of the prosecutrix with the intention to outrage her modesty, also held that the acts “holding the hands of the prosecutrix” or “opened the zip of the pant” did not fit in the definition of sexual assault. In the opinion of the Court, the High Court had fallen into a grave error in recording such findings. When the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty, of holding her hands and opening the zip of his pant showing his penis, are held to be established by the prosecution, there was no reason for the High Court not to treat such acts as the acts of “sexual assault” within the meaning of Section 7 of the POCSO Act. The High Court appears to have been swayed away by the minimum punishment of five years prescribed for the offence of “aggravated sexual assault” under Section 10 of the POCSO Act as the age of the prosecutrix was five years and the sexual assault if committed on the victim who is below 12 years is required to be treated as the “aggravated sexual assault” as per Section 9(m) of the Act. However, neither the term of minimum punishment nor the age of the victim could be a ground to allow the accused to escape from the clutches of Section 7 of the POCSO Act. The alleged acts of the accused in entering the house of the prosecutrix with sexual intent to outrage her modesty, holding her hands and unzipping his pant showing his penis to the prosecutrix having been held to be proved by the prosecution, they would certainly be the acts falling within the purview of the “sexual assault” as contemplated in the second part of Section 7 i.e. “……… or does any other act with sexual intent which involves physical contact without penetration”. The Court, therefore, has no hesitation in holding that the accused-Libnus had committed an offence of “sexual assault” within the meaning of Section 7 of the POCSO Act and the prosecutrix being below the age of 12 years, he had committed an offence of “aggravated sexual assault” as contemplated under Section 9(m) of the said Act, liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act. In that view of the matter, the judgment and order of the High Court insofar as it has set aside the conviction of the accused-Libnus for the offences under Section 8 and 10 of the POCSO Act is liable to be set aside, and the judgment and order of conviction and sentence passed by the Special Court is required to be restored.”
As a corollary, the Bench then observes in para 44 that, “In the aforesaid premises, the judgments and orders dated 19.01.2021 and 15.01.2021 passed by the High Court of Judicature at Bombay, Nagpur Bench, at Nagpur in Criminal Appeal No. 161 of 2020 and Criminal Appeal No. 445 of 2020 respectively are hereby quashed and set aside; and the judgments and orders dated 05.02.2020 and 05.10.2020 passed by the Extra Joint Additional Sessions Judge, Nagpur in Special Child Protection Case No. 28 of 2017 and by the Special Court, Gadchiroli in POCSO Case No. 07/2019 are restored.”
It is worth noting that the Bench then holds in para 45 that, “Accordingly, the accused-Satish is hereby convicted for the offences punishable under Section 8 of the POCSO Act and under Sections 342, 354 and 363 of the IPC. He is directed to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/- and in default thereof to suffer simple imprisonment for a period of one month for the offence under Section 8 of the POCSO Act. Since he has been sentenced for the major offence under Section 8 of the POCSO Act, no separate sentence is imposed upon him for the other offences under the IPC.”
What is also worth noting is that the Bench then also holds in para 46 that, “The accused-Libnus s/o Fransis Kujur is hereby convicted for the offences punishable under Sections 354-A (1)(i) and 448 of the IPC as also for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act. He is directed to undergo rigorous imprisonment for a period of five years for the offence under Section 10 of the POCSO Act and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only) and in default thereof to suffer simple imprisonment for a period of six months. Since he has been sentenced for the major offence under Section 10 of the POCSO Act, no separate sentence is being imposed upon him for the other offences under the IPC and the POCSO Act.”
Furthermore, the Bench then directs in para 47 that, “Both accused – Satish and Libnus are directed to surrender themselves before the concerned Special Courts, within four weeks from today.”
It cannot be glossed over that the Bench then holds in para 48 that, “Before parting, it may be noted that in the case of the accused-Libnus, the State of Maharashtra while filing the Appeal before this Court had not produced the certified copy of the judgment of the High Court, however, had produced a copy of a certified copy, wherein the High Court had recorded acquittal of the accused for the offence under Sections 8, 10 and 12 of the POCSO Act, while maintaining his conviction under Sections 448 and 354-A(1)(i) of the IPC, whereas in the copy of the impugned judgment of the High Court downloaded by the respondent-accused produced on record by the learned Advocate for the accused, the High Court had recorded the conviction of the accused for the offence under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act. There being a discrepancy in the said two copies of the impugned judgment of the High Court, the learned Advocate for the respondent-accused had filed an I.A. bringing to the notice of the Court about such discrepancy. The Court, therefore, had vide its order dated 27.10.2021 directed the Registrar of the High Court to send the certified copy of the decision of the High court dated 15.01.2021 passed in Criminal Appeal No. 445 of 2020. Accordingly, the Assistant Registrar of the High Court of Bombay, Nagpur Bench, has sent the certified copy of the said judgment.”
Most astonishing is what is then stated by the Bench in para 49 that, “It is very surprising to note that the Registry of High Court of Bombay, Nagpur Bench, has certified the copy of the impugned judgment by affixing the stamp on the back side of every page of the judgment which is blank. The said copy of the judgment appears to have been downloaded from the website and, therefore, does not bear even the signature or the name of the concerned judge at the end of the judgment. The certificate that the said copy is a true copy of the judgment, is also not written at the foot of the judgment as contemplated in Section 76 of the Indian Evidence Act. Such a practice, if followed by the Nagpur Bench of the Bombay High Court, may allow the miscreants to manipulate or commit mischief in the judicial orders which are used as the public documents having great significance in the judicial proceedings. The Registrar General of the Bombay High Court, therefore, is directed to look into the matter and ensure that proper procedure for preparing the certified copies of the judgments/orders of the Court in accordance with law is followed.”
It then notes in para 50 that, “All the five appeals stand disposed of accordingly.”
Finally, the Bench then holds in para 51 that, “It will be failure on our part if we do not extend gratitude of appreciation for the enormous assistance rendered by learned senior Advocate Siddhartha Dave, learned Amicus Curiae Siddharth Luthra, learned Senior Advocate appearing on behalf of the accused through Supreme Court Legal Services Committee, Ms Geeta Luthra, learned Senior Advocate appearing for National Women Commission and all other advocates who have appeared in the matter.
The initiative taken by the learned Attorney General for India Mr KK Venugopal in filing the appeal with all sense of expressing his concern in the cause also deserve to be appreciated.”
It must be mentioned that Justice Ravindra S Bhat in his separate but concurring judgment said that, “The reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”
While cautioning Judges in interpreting provisions of the law, Justice Bhat said that, “It is no part of any Judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”
On a concluding note, it must be said that all the Judges must always strictly adhere to what the Apex Court three Judge Bench in this extremely commendable, cogent, courageous and convincing judgment has laid down so clearly. It is clearly laid down that skin-to-skin touch is not must to judge POCSO offence. What is essential is sexual intent. If sexual intent is there then that is sufficient to convict the accused! We thus see that the Apex Court has in this notable case decisively rejected the narrow interpretation of sexual assault against children and rightly held that unacceptable behavior cannot be trivialized. Very rightly so!
Sanjeev Sirohi, Advocate
Biomedical Waste Disposal: An Analysis
Biomedical waste is composed of animal and human waste, treatment equipment, for instance, syringes, needles, and the other different kinds of amenities in the process of research and treatment (Bio-Medical Waste Management Rules, 2016). Adequate biomedical waste management concerning the proper rules and regulations were consistently overlooked for years, specifically in a developing country like India.
India, the second most populated country worldwide after China and the world’s second worst-hit country by COVID-19 officially, and unofficially it is undoubtedly the worst affected. India now has 20.7 million confirmed cases of the deadly Covid-19 virus. However, the recovery rate among Indian population is also very remarkably high. The administration has also taken rigorous steps to tackle Covid-19, but this has resulted in piles of Bio-medical waste. According to Central Pollution Control Board (CPCB) data, approximately 4527 tons of bio-medical waste was generated in December 2020. This has unduly pressurised the waste management system of country. Lack of resources has further added to this problem of waste management. India faced severe consequences during the second wave of COVID-19 and responding to which the medical system is also overburdened. These critical conditions have also posed a challenge in the administration to manage the bio-medical waste generated in treating the patients found positive with Covid-19. The country has a total of 238,170 healthcare facilities, out of which 87,267 are bedded while the remaining 151,208 are non-bedded healthcare facilities (HCFs) generating BMW. According to a study, improper management and disposal of bio-medical waste could expose freely roaming animals and humans with diseases like Covid-19. Thus, it becomes imperative to think for effective management strategies and spare some resources to manage bio-medical waste.
Untreated and improperly managed BMW is a potential source of infection. Millions of contaminated personal protection equipment (PPE) (e.g., facemasks and gloves) would end up as wastes, which, if improperly managed, can pose environmental and health threats. In a recent study (Kampf et al., 2020) finds that the coronavirus can survive on material surfaces (e.g., metals, glass, and plastics) for up to 9 days. Such threats may be ameliorated in developed countries where green and sustainable waste management strategies, capable of containing such viruses, are practiced. However, the threats would be much higher in developing countries that have poor waste management strategies. In many developing countries, solid wastes are dumped in the open and in poorly managed landfills where waste pickers without wearing proper PPE would scavenge for recyclable materials (World Bank, 2019).
Thus, it is the right time to call upon the policymakers to ponder this problem, which could become an uphill climb later if not given due attention.
IMMEDIATE ACTION AND FUTURE POLICY RECOMMENDATIONS:
The lockdown had led to enhancement in the origination of the food and packaging waste from the domestic households, which should be disseminated as per the current waste accumulation rules. The occurrence of the collection of biodegradable waste could be modified according to the locality. However, the recyclable waste could be reduced according to the accessibility of the people as well as the trucks. As they should be helped to accumulate them in the sealed bags for a longer tenure. There would be more generation of infectious waste and toxic waste if more heed is given to sanitary products and other health care products. So, it is very much necessary that it should be accumulated in double lined sealed bags with a particular symbol. The food packaging and the other waste should be handled with possible care and caution as it should be carried in a double layered compostable bag.
There would be less charge on the management of the hazardous waste as more waste from the households is being compensated by the smaller number of wastes from the restaurants, eateries and the other complexes. It is necessary to be conscious for the exposure of the waste as long as it exposes the pathogen to spread. The people living at their home required to be more prudent as there is a need of dissemination of the waste. The propagation of the same should be done through advertisements, newspapers or other source of media.
Few Policy recommendations deliberately made for the policymakers which might assist a system to tackle the pandemic:
a) Identification of the key role: This is the prime duty of the government to recognize the part which has to be played by sanitation workers. For instance, UK government has specifically given key worker status to their workers as the government would be fulfilling all the requirements of their family during the COVID crises so they could continue their services.
b) Formulation of the Global Common Platform of Knowledge: It is very much necessary to formulate a platform as well as foundation of knowledge so that the people should gain the know how of handling the waste as they could curb themselves in need of the hour.
c) Pervasive standardization of the coding: The universal standards for the color coding are very much significant for disseminating the bio medical waste. As it would provide assistance to the identification of the type and the characteristic of the waste. Proper training to the workers in the regard would also be very much helpful.
d) Technology Based Solutions: To deliver the high quality by products, it is very much necessary to emphasize the gasification, hydrothermal, and carbonization kind of techniques. Additionally, there should be investment of research into it.
e) Implementations of the principals from circular economy: To reduce the amount food wasted, re-utilization of the food waste and nutrient recycling are the major fundamentals of the circular economy in the food system and should be executed both at producer as well as consumer level. Furthermore, the circular-based models’ execution would assist in deviation of the accumulated waste from the disposal sites to the recyclable plants; however, it would also help in declining the generation of the waste in the initial place.
f) Propagation Regarding Circular economy: People are not knowing about the methodology behind the circular economy so it is the dire need to aware people regarding the concept of circular economy. The fabrication of the recyclable products would, for instance, bioplastic and biodegradable products should be highly promoted as well rewarded.
g) Moving from awareness to Action: Just by propagating the general public regrading the same would not help rather they should be highly motivated to implement all the schemes practically. Media campaigning would really assist in effecting the people’s behavior and would also assist in the transformation of their musings to converting the economy into a greener one.
Opinion1 year ago
South Block’s mistakes will now be corrected by Army
Sports1 year ago
When a bodybuilder breaks Shoaib’s record
News2 years ago
PM Modi must take governance back from babus
Spiritually Speaking1 year ago
Spiritual beings having a human experience
News1 year ago
Chinese general ordered attack on Indian troops: US intel report
Legally Speaking2 years ago
Law relating to grant, rejection and cancellation of bail
Sports1 year ago
West Indies avoid follow-on, England increase lead to 219
Royally Speaking1 year ago
The young royal dedicated to the heritage of Jaipur