THE AFTERLIFE OF SECTION 66A:HOW AN AGGRESSIVE AND IGNORANT POLICE MACHINERY REVIVED A DEAD LAW

By: Abhishek Unnithan, Rajiv Gandhi National University of Law

INTRODUCTION

“If Liberty means anything at all, it means the right to tell people things they do not want to hear.” This is the foundational social contract underpinning every free society. A civilized, democratic government rests on the quality of public discourse and this is engendered by the clashing of dissenting ideas and opinions. A democracy attempting to gag the free flow of expression is simply paying lip service to its democratic credentials. The tremendous explosion offset by the rise of the Internet has fundamentally altered the way people receive and transmit information. The Internet has manufactured a culture of mass amateurization, an era where anybody with a computer connection can be a media outlet. Incendiary news that could have been suppressed by the state’s iron fist now travels with the speed of wildfire[i]. Governments around the world have felt the heat caused by this digital revolution and often taken steps to gag free speech, under the pretext of maintaining social order.

A legal tool of the same colour was enacted by the Indian Government in the form of Section 66A of the Information Technology Act, 2000. The Information Technology Act was enacted to provide legal recognition to the burgeoning sector of e-commerce as well as effectively combat the array of cybercrimes arriving in its wake. In 2008, the Act was amended to introduce Section 66A which empowered law enforcement authorities to arrest citizens for sending “offensive and menacing” messages and was passed without discussion in the Parliament. The section vested police officials with the authority to make arrests based on messages which were construed to be “offensive” or “menacing” or “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult” etc. The punishment, extending up to a prison term of three years, could be arbitrarily meted out to anybody sending “offensive” messages via a computer or any other communication device[ii].

The biggest criticism of the law pertained to the vague definition of “offensive” messages and the enormous power vested with police officials in determining what fell under this category. Legal scholars and activists pointed out that “offensive” was a purely subjective term and could not be effectively employed as a legal parameter. What one person deems to be inoffensive may infuriate someone else. This created a malicious opportunity for police officials to abuse the law and haul up anyone who might have a dissenting opinion. The law thus violated the fundamental right to free speech and expression (Article 19(1)(a)) and right to life (Article 21) as enshrined in the Constitution. Proponents of the law argued that strict legal punishments were necessary to curtail the abuse of information technology, especially social media and that the law was protected under the “reasonable restriction” clause elucidated in Article 19(2) of the Constitution.

When the issue finally came up before the Supreme Court in the case of Shreya Singhal vs. Union of India (AIR 2015 SC 1523)[iii], the apex court struck down Section 66A for being “unconstitutionally vague” and derailed the state’s attempt to gag free speech on the Internet. This was a significant decision which recognized the explosive power of the Internet in transcending traditional media and created a channel for unfettered access to information. The landmark judgement was rightly applauded across the country and around the world as a vehement pushback against state depredation and a resonant victory for free speech. Given the strongly worded pronouncements of the Supreme Court, it was assumed that Section 66A would never be invoked again and remain confined to scholarly discussions surrounding free speech in India.

However, this was not to be the case. Recently, the Supreme Court expressed its disappointment at the continued and widespread use of the obsolete provision by law enforcement authorities, calling it a “shocking state of affairs.” According to Senior Counsel Sanjay Parikh and advocate Aparna Bhatt representing the People’s Union of Civil Liberties (PUCL), around 1000 cases have been registered under Section 66A of the Information Technology Act[iv].  Acting with alacrity, the apex court demanded a response from the Centre at this illegal feat of judicial necromancy. The Centre has now instructed state governments to not register cases under the repealed section and withdraw any cases already registered.

Though the Supreme Court and the Ministry of Home Affairs acted swiftly to prevent any further injustice to occur as a result of this perversion of constitutional rights, the issue is a stark reminder of the lacuna that exists between judicial pronouncements and its everyday implementation. The case is a demonstration of the gulf that resides between the higher echelons of India’s legal system and the lives of ordinary citizens. It must be noted how an aggressive and ignorant police machinery uses arcane and obsolete legal provisions to harass citizens, many of whom remain unaware of the minutiae of the law. Complexity of the judgement is no defence for the police machinery to engage in such a blatant disobedience of the law and begs the question of how such a dazzlingly clear violation went without notice. The issue reveals the importance to sensitize police officers and other state agencies as well as the wider citizenry of the workings of law and move it out of an esoteric circle of judges, lawyers and scholars.

THE SHREYA SINGHAL CASE

Shreya Singhal, a Delhi based law student, filed the first petition challenging the constitutional validity of Section 66A. At the heart of the petition was the arrest and detention of two girls, Shaheen Dhada & Rinu Srinivasan of Palghar, for criticising the lockdown imposed in Maharashtra following the death of Shiv Sena supremo Bal Thackeray in 2012. The comments were posted on Facebook and predictably irked many people. The girls were detained for 10 days, initially charged for spreading hatred and later under Section 66A of the Information Technology Act. Though they were released later on, the case created a public uproar and highlighted the draconian powers vested in public officials by Section 66A. The right to free speech and expression, an essential foundation of any democratic society, was felt to be grossly violated by an over-enthusiastic police machinery.

Shreya Singhal argued that the law was in direct violation of Article 19(1)(a) of the Constitution which guaranteed the fundamental right to free speech and expression. The public interest litigation (PIL) filed by Shreya pointed out how the law was routinely abused (as in the Palghar case) to curb freedom of expression and crush dissenting views. The petitioners argued that though the section was initially enacted to prevent misuse of opportunities offered by information technology, it armed law enforcement agencies with vast powers which could be easily deployed against innocuous citizens. There was a veil of vagueness surrounding different terms of the section, lending itself to idiosyncratic interpretations. The law went beyond the ambit of the “reasonable restriction” clause specified under Article 19(2) and was, therefore, unconstitutional. Later on, several writ petitions were filed by individuals, NGOs and companies challenging the validity of Section 66A, which were clubbed together under the Shreya Singhal case and heard by a two-judge bench consisting of Justices Jasti Chelameswar and Rohinton F Nariman[v].  

On March 24, 2015, the learned judges struck down Section 66A, declaring the law to be unconstitutional “for being violative of Article 19(1)(a) and not protected under Article 19(2).” Three decisions were taken by the apex court; firstly, Section 66A was struck down in its entirety and deemed unconstitutional. Secondly, Section 69A of the Act was deemed constitutionally valid along with the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009. Thirdly, the bench also decided Section 79 to be valid, subject to some restraints. Section 79 provided that no social media “intermediary would be legally liable for any third-party information, data, or communication made available or hosted by him.”[vi]

This landmark judgement upheld the fundamental right to free speech and was a solid judicial pushback against an overzealous executive. The bench recognised that the tremendous powers with which the section armed the police machinery could be a chilling weapon against free speech and public discourse. The parameters employed by the section were so vague, and thus effectively limitless, that it transcended any ambit of reasonable restriction. By curtailing the dictatorial attitudes of the executive, the judiciary made sure that the contours of free speech were well-adapted to the Internet age. This judgement was coupled with the realization of the Internet’s extraordinary ability in transmitting information at lightning speed. This produced a culture where news was no longer the exclusive domain of news organisations. In such a climate, a legal provision granting limitless authority to the state would be a catastrophic disaster.

A FLOOD OF MUTINY

It is a settled principle of law that a judicial pronouncement striking down a legal statute immediately makes it invalid. It ceases to exist as a law and becomes non est. This is the powerful function vested in the judiciary as the guardian of the Constitution and empowering it to push back against state encroachment. Article 129 of the Constitution provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 extends this power to High Courts as well. Article 141 declares that the law declared by the Supreme Court shall be binding on all courts within the territory of India. This is consistent with the role the Constitution has spelled out for the judiciary: dispension of justice. To be an effective arbiter of justice, it is essential that the judicial declarations are carried out in full spirit of the letter. Compliance with the pronouncements of the court should be the highest priority for all agents of law, since any intended or unintended effect can only be ascertained following this.

However, as Senior Counsel Sanjay Parikh and advocate Aparna Bhatt pointed out, effective implementation of judicial decisions is far from the norm. This can be gauged by the massive number of cases that continued to be filed under Section 66A of the Information Technology Act, 2000 which was declared unconstitutional six years ago. Despite being stricken down as an invalid law, an ignorant law enforcement machinery continued to abuse this provision to harass citizens. Ignorance of the law is no excuse for this brazen disregard and the agencies of the state apparatus must be held accountable for flouting the verdict of the Supreme Court.  The fact that so many innocent citizens have been hauled up under a non-existent law has “shocked” the judiciary. The petition filed by the People’s Union for Civil Liberties brought this glaring issue to the forefront of the Supreme Court’s attention. The SC bench expressed its amazement that an entire legal apparatus – consisting of interior home ministries, the police, public prosecutors, prison authorities, lower courts and judges – should fail to comply with a verdict given in 2015. It must be probed whether the police machinery remained ignorant of the verdict or simply found the “dead” law to be an expedient way to haul up dissenters. Neither of the instances absolves the police machinery for its brazen insubordination to the apex court’s declaration. The law enforcement agencies have relied on an unconstitutional principle of parliamentary suzerainty to disregard the verdict in the Shreya Singhal case. 

 The Ministry of Home Affairs (MHA) has now directed states and union territories (UTs) to instruct all police stations under their jurisdiction to not register any case under the repealed Section 66A of the Information Technology Act, 2000 and drop any cases previously registered. The MHA notification has also pressed the need to sensitize law enforcement agencies to comply with the verdict laid down in the Shreya Singhal case in 2015. These are all commendable decisions but they must be accompanied with a sincere attempt to reverse the injustice caused by this perversion. The issue is a necessary reminder that the judiciary must not simply rest its laurels after delivering landmark judgements but must be cognizant of its effective implementation.

The case highlights the high-handedness of state agencies but is also a stark reminder of the lacuna that exists between judicial verdicts and its effective implementation. It demonstrates how the loudest of judicial declarations would be rendered meaningless without an effective mechanism for compliance. There is a pressing need to sensitize police officials and the wider state machinery of judicial developments. The police must not be allowed to exploit arcane and obsolete legal statutes to harass citizens. Oftentimes the people most abused by such illegal tactics belong to the underprivileged and discriminated sections of society with little to no idea of the minutiae of the law. The rule of law is severely discredited when it is seen not as a custodian of civil liberties but a tool for oppression. The case is an opportunity for the judicial system to reflect on the need to transform the legal landscape and bring it closer to the public it serves.

WAY FORWARD

The MHA notification issued to states and UTs highlighted the important need to sensitize law enforcement officials to comply with the orders issued by the Supreme Court. The importance of this function cannot be overstated.  The judiciary has been vested with the responsibility to dispense justice. The Supreme Court and lower courts are the custodians of the Constitution and a bulwark against an aggressive state. Compliance with the judgements laid down by the judiciary is a prerequisite for the functioning of any democratic society. Any impact of judicial decisions can be gauged only when laws laid down by courts are properly complied with. This is not the symptom of an overactive judiciary. In fact, this is absolutely consistent with the role envisaged for the judiciary by the framers of the Constitution. The law does not exist in a vacuum; it has a demonstrable impact on the very lives of the citizens. The gulf that exists between judicial declarations and the everyday lives of ordinary Indians must be bridged.

In this regard, the first step must be to disabuse the law enforcement agencies of their seemingly unbridled power. The police machinery exists to serve the people and redress issues that might affect law and order. It is not a license to harass citizens and levy charges for any form of feudal protection. The purpose of the police is to make sure that members of society act within the constraints imposed by law. This makes it essential that law enforcement agencies remain updated with the current developments in law and do not follow a principle of absolute parliamentary suzerainty. The flouting of the SC verdict in the Shreya Singhal case points to a deeper malaise pervading the justice system. While law enforcement officials must be hauled up for their blatant transgression, it is important to recognise the multitude of factors at work here. Mere bureaucratic arrogance does not explain the avalanche of proceedings instituted under Section 66A since 2015. Political pressures and promises of protection offered by unscrupulous political masters are also a driving force behind bureaucratic corruption. Section 66A is a useful tool for politicians to crush any dissent raised against them by a vigilant public. This too was recognised by the apex court in the Shreya Singhal judgement. When critiquing the agencies of state for their brazen violation, it is important not to simply absolve the state of any wrongdoing either.

Law enforcement agencies must be sensitized of their duties and responsibilities. Their legal knowledge must be on par with an experienced advocate to spare innocent citizens the trauma of going through a lengthy and costly legal battle. This is a short-term solution to the vexing issue of implementing judicial decisions. A long run solution would entail producing a better informed and legally literate citizenry. Citizens must be legally empowered to make sure their rights are not trampled on by an arrogant state apparatus.

Law must not remain confined to an esoteric circle of judges, advocates, legal scholars and academics. It must be accessible by the common man. In the case of Ajit Mohan vs. Legislative Assembly[vii], the Supreme Court commented that judgements should be crisp, clear and crisp so that it is easily understood by everybody. Brevity must be an essential quality of the verdicts laid down by the courts, both for easy comprehension by lower courts and better understanding by the common man. It is important to realize that judgements laid down with an “ivory tower” mindset may not reflect the facts of the ground and be satisfactory for the common individual. There is a wide gap between judicial pronouncements and the actual reality faced by millions of Indians. For the last six years, the police invoked a constitutionally “dead” law to harass citizens and make a mockery of the judicial system. Each and every individual hauled up under this obsolete law is owed an apology by the state. Though the MHA has now acted with alacrity and issued notices to states and UTs, it is dismal that such perversion of law occurs in the first place. It must also be noticed that the sorry state of affairs where judicial orders are brazenly disobeyed cannot be permitted in a functioning society. It goes against every tenet of good governance and constitutional integrity.

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[i] ANDREW KEEN, THE CULT OF THE AMATEUR: HOW TODAY’S INTERNET IS KILLING OUR CULTURE (Doubleday 2007).

[ii] Dr. Upendra Baxi, A Sudden Flood of Mutiny? Aug 2^nd INDIA LEGAL. 20-22 (2021).

[iii] Shreya Singhal vs. Union of India (AIR 2015 SC 1523).

[iv] Baxi, supra note ii

[v] Express News Service, Section 66A: 21 petitions that changed the system, THE INDIAN EXPRESS (July 14, 2021 7:40:35 pm), https://indianexpress.com/article/india/india-others/sec-66a-21-individuals-who-changed-the-system-2325682/.

[vi] Supra note iii

[vii] Ajit Mohan vs Legislative Assembly, National Capital Territory of Delhi (8 July, 2021)

Issues and Challenges Faced by the Govrnemt in Protection of Animal Rights

By: Shreya Srivastava

Assuming that animals are without rights and their treatment won’t have any moral significance is positively atrocious. Animals are not for the use of humans, for any experiment[i], entertainment or for food. There exists a right for animals to not be exploited by humans for their own purposes and to provide humane[ii] treatment to them. As the interest of humans is given consideration, the same should be given to non-human animals also known as animal liberation[iii]. People who work for animal rights require animals to be regarded as individuals and not as personal property. They often cover areas like aquariums and zoos as these are the places where most of the testing is done on animals and pets[iv]. Every human being has ethics and morals, the concept of animal rights is developed on the philosophy of morals and ethics.

 Jeremy Bentham was the great influencer of social and political change in England. He was the opinion for the welfare and rights of the animals, quoted that-

 “The question is not can they reason? Nor, can they talk? But can they suffer?”

Social movements bring people together on the aspect of cultural, political and religious topics, where people fight against injustice. Working on animals and their rights is a social movement where people work on their own conscience, which brings people together and work on the things which can’t talk but can still suffer injustice. Discrimination is not only on the basis of religion, race, caste, creed and colour but it is also on the basis of species which is called speciesism[v].

Every living creature on this Earth has the right to live, free from pain and torture. Animal rights is not merely a philosophy. It challenges society on the traditional views and morals that all non-human animals are made for the use of humans. Animals have an equal capacity as all humans. They can listen, understand, feel pain, pleasure and fear. When we humans do anything, which would interfere with their needs, we have a moral obligation to take them into account.

History shows us that people were working on animal welfare and their rights. In 1822, UK passed the first legislation ‘Martins Act’[vi] for the welfare and protection of the animals. The Act was mainly for horses and cattle. The society’s main focus was on enforcement of the law and when needed, there should be prosecution. Two years later, in 1824 there was an establishment of Society for the Prevention of Cruelty to Animals, which later in 1840, became Royal SPCA

In 1860, Mary Tealby established the Battersea Dog for all the strays in order to end their difficulty caused due to living on streets and thus became the first woman to found an organisation on British animal welfare[vii].

A book by Peter Singer named ‘Animal Liberation’[viii] has played an important role in motivating the activists of that time in increasing the movements on animals.

1970 was the time where the movement for animals started splitting into two i.e., animal welfare and animal rights. Many organisations in Europe and North America extended their focus from national to international issues and tackling higher issues like fur, whaling, dog eating, bear dancing, etc. In 1988, the first international campaign was started which was called the ‘No fur campaign’.

In India, a ban on the killing of animals started from Ashoka’s time which is during the 3^rd century. After the great war when Ashoka became Buddhist in his edicts[ix], he expresses concerns over the many animals killed to serve him meals. Ashoka banned animal hunting and he established first of the animal rights laws. He made it illegal to kill animals like parrots, monkeys, squirrels, etc. for sacrifice[x].

Mahatma Gandhi said, “The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

Central Government has introduced various acts to curb nuisance against animals. The main acts which were introduced to prevent cruelty against animals are ‘Prevention of Cruelty to Animals Act, 1960′ and Wildlife Protection Act, 1972[xi]. Section 50 of Wildlife Protection Act, 1972 gives authority to the Chief Wildlife Warden, Director, any forest officer, any officer authorized by them or any police officer who is not below the rank of sub-inspector to arrest any person and detain him without the warrant, but should have reasonable grounds to believe that the person has committed an act[xii]. Our Constitution of India also recognises the lives and welfare of animals under Article 51A(G) of Fundamental Duty, where every citizen of India is to protect wildlife and for all living creatures have compassion towards them[xiii].

ISSUES FACED

The Government of India has faced various issues regarding the protection of animal rights. Considering the past history and present, animals are treated for personal use and are been tortured. Despite the various laws enacted by the Government, animals are still used for cosmetic testing, kept in battery cages, forced to perform in a circus. For instance, after the stray dogs give birth, they are neglected and are thrown back from the place they were picked, despite being very vulnerable after surgery and are also subjected to cruelty. Animals are being used for food, the skin is used for clothes and are used for experimentation. They are burned alive, tarnished, used for entertainment in movies and circus and forced to do things which is horrible.

India is known for being the land of Elephants and Tigers. Hindu mythology talks about Gods riding animals like peacocks, tigers, rats, etc. There are various challenges which government has to go through. The first big challenge is lack of political will, neglect in wildlife, illegal hunting of animals for using it as a showpiece, religious practices which use animals as a sacrifice. With issues and challenges like these, there have to be stark measures taken but people first have to understand the truth and the adverse effect taking place in the environment. People are rational beings. Once they understand the stark truth, they will modify their behaviour towards wildlife. There are rays of hope, many organisations, individuals and groups have understood the reality and are trying to generate pragmatic solutions.

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[i] Humane Society International. 2021. About Animal Testing. [online] Available at: <https://www.hsi.org/news-media/about/&gt; [Accessed 13 July 2021].

[ii] PubMed Central (PMC). 2021. Humane Treatment of Animals. [online] Available at: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1494506/?page=1&gt; [Accessed 13 July 2021].

[iii] Yourdictionary.com. 2021. Animal-liberation Meaning | Best 1 Definitions of Animal-liberation. [online] Available at: <https://www.yourdictionary.com/animal-liberation&gt; [Accessed 13 July 2021].

[iv] US Legal, I., 2021. Animal Rights Law and Legal Definition | USLegal, Inc.. [online] Definitions.uslegal.com. Available at: <https://definitions.uslegal.com/a/animal-rights/&gt; [Accessed 13 July 2021].

[v] Bbc.co.uk. 2021. BBC – Ethics – Animal ethics: The ethics of speciesism. [online] Available at: <http://www.bbc.co.uk/ethics/animals/rights/speciesism.shtml&gt; [Accessed 13 July 2021].

[vi] http://www.animalethics.org.uk/i-ch6-4-martin.html ‘Martin Act’ was introduced by Richard Martin who was an Irish Politician also a human and animal activist. The Act was the first parliamentary law to proscribe cruelty to animals in any country. The Act was introduced to ban all the ill-treatments that are done on animals mainly cattle and sheep.

[vii] Ibid.

[viii] PETA. 2021. What Is Animal Liberation? Philosopher Peter Singer’s Groundbreaking Work Turns 40 | PETA. [online] Available at: <https://www.peta.org/about-peta/learn-about-peta/ingrid-newkirk/animal-liberation/&gt; [Accessed 13 July 2021].

[ix] http://think-differently-about-sheep.com/Animal_Rights_A_History_King%20Asoka.htm edicts – the fourteen rock edicts, minor rock edicts, the seven pillar edicts.

[x] Ibid

[xi] Furtado, R., 2021. Animal rights in India: The most underrated topic of environmental law – iPleaders. [online] iPleaders. Available at: <https://blog.ipleaders.in/cruelty-animals-india/&gt; [Accessed 13 July 2021].

[xii] 2021. [online] Available at: <https://indiankanoon.org/doc/702677/&gt; [Accessed 13 July 2021].

[xiii] iPleaders. 2021. A compilation of animal protection law in India or animal protection laws. [online] Available at: <https://blog.ipleaders.in/animal-protection-laws-in-india/&gt; [Accessed 13 July 2021].

Cinema in Dilemma: A comprehensive look at the newly proposed amendments to the Cinematograph Act of 1952

Introduction – 

The renowned French playwright Yazmina Reza once said, “Theatre is a mirror, a sharp reflection of society. The greatest playwrights are moralists.” Whether theatre and moralism go hand in hand is a dithering fact but what can be asserted,rather undoubtedly, is that theatre and its forms of expression always remain a true testament and mirror to our social realities and as such, should be free from restraints and controls to facilitate expression in its true sense and form without shades of expurgation.

A Brief Background –

Indian cinema has begun to travel unprecedented heights and boundaries over the years, tapping into very delicate and controversial subjects with finesse and class encouraging varied debate and discussion on the same. It has indeed been a breath of fresh air to witness a revolution that is undergoing in Indian Cinema, but this revolution may be on its way to be a short lived one. The newly proposed amendments to the Cinematograph Act of 1952 may become the death knell of new age Indian Cinema. The newly proposed amendments have been met with extremely unfavourable reactions and reviews from the creative & entertainment industry as well as from many free thinkers as being an impediment to creativity and free expression.

Indian cinema witnessed a milestone when Dadasaheb Phalke released the first ever Indian film, Raja Harishchandra in 1913. In 1918, the first ever legislation came into place to regulate Indian cinema. The Cinematograph Act of 1918 was introduced in the imperial legislative council after the council took note of the ever-growing popularity of cinema in India and hence, felt the need for a legislative control over cinema.The Act of 1918 was essentially the foundation for the modern censorship laws of India. The Act of 1918 was repelled and later replaced with the current act, the Cinematograph Act of 1952. While the Cinematograph Act is the statutory document that regulates film in India in theory, in reality that task is in the hands of the Central Board of Film Certification (CBFC) known more commonly as the Censor Board. The CBFC draws authority from the Cinematograph Act, 1952 to regulate and control the distribution and public exhibition of cinema as per the provisions of the Act of 1952.The CBFC not just upkeeps the provisions and rules of the Cinematograph act but also censor cinemas and regulate exhibition as well as issuing certification to release cinema.

The Newly proposed Amendments –

All the hue & cry among the film fraternity today is because of the newly proposed amendments being proposed to be made to the Cinematograph Act of 1952. The newly proposed amendments were added in as iteration and were first introduced in the Rajya Sabha on 12-09-2019 after receiving the Union Cabinets approval. There are three recommendations proposed in the amendments, they are – • A revision in the categorization of U/A on the basis of age.• The Union Government has added powers to recommend and in certain matters even override the decisions of the CBFC to reconsider or even revoke the certification given for the exhibition of a cinema. The Government has called for changes to be made in section 6(1) of the Act which gives it revisional powers.• The recommendation has also been made to add in section 6AA that targets piracy suggesting an increase in the minimum period of imprisonment as well as increasing the fine amount that can be charged.

The proposed amendments after being introduced in the Rajya Sabha, was differed to a standing committee and the standing committees report was received on March 16, 2020.   

The Central Government through the Ministry on Information & Broadcasting has now sought comments and feedbacks from the general public with regard to the proposed amendments and asked for debate and discussion on the same.

Are these Amendments problematic in nature? – 

India has a history of extremely stringent and shrewd censorship laws that have dogged down on freedoms and creative art many times in the past. Stringent censor laws will only further limit and control the creativity and the freedoms of expression the artists wish to exhibit and portray. In recent times, India has achieved dismal ratings in press freedom indexes as well as in overall freedoms of speech and expression. Freedom to express oneself without any forms of hindrance and fear of backlash should be one of the basic fundamentals that all democratic nations should provide to their citizens. If not, it becomes a flawed democracy. 

In simple and clear terms, certain proposed amendments & recommendations made to the Cinematograph Act of 2021 are very problematic in nature. Some of the proposed amendments directly increase the Revisionary powers the Central Government has over film certification & exhibition and in way overrides the CBFC to almost gain complete autonomy even to overrule and countermand the decisions of the CBFC. One of the recommendations made in the proposed amendments seeks to increase the Central Governments overall power to cancel out the CBFC’s decisions if it deems fit. The amendments enable the Central Government to exercise arbitrary powers to interfere with the working of the CBFC and take and make substantial decisions overruling the decisions made by the CBFC. This is very problematic since the CBFC is the statutory authorized body as per the Cinematograph Act of 1952 to look into all matters relating to the certification and exhibition of Indian Cinema. The Central Government has no business to snoop around in this sphere as it is something that is left to the discretion of the concerned body, the CBFC. This new amendment gives the Central Government the power to even call for an additional review of a film that has passed the scrutiny of the CBFC and has also received certification and licence for exhibition. The Central Governments arbitrary powers to interfere and review with new feature films will hinder and curb creative freedoms. Time and again, we have seen countless instances of violence and protest against films and works of entertainment labelling them as offensive and derogatory. These new amendments, if made law, would have essentially armed this small bunch of always offended group of people a new alternative to further dog down on creative freedoms and free expression of ideas and notions.

Another point of objection is that the existing mechanism of review followed by the CBFC is pretty sufficient and adequate to combat any concerns that may arise and as such, there was no need of such a provision being made to allow the Central Government to interfere with the review and certification process of films. Another point of objection has arisen on the grounds that there is no need for the Central Government to get any more power than it already has. Currently, even though the CBFC is charged with the review and certification of films, the CBFC in turn is controlled by the Central Government. All the members of the CBFC have been appointed by the Central Government itself.

Also, to be taken into consideration is that this kind of interference by the Central Government goes against the judgment taken by the hon’ble Supreme Court. Section 6(1) of the Cinematograph Act that the new amendments seek to amend were struck down by the Karnataka High Court in the case of K.M. Shankarappa vs. Union of India & the decision reached in the case was upheld by the hon’ble Supreme Court.The section was struck down as they were unconstitutional in nature. The newly proposed amendments seek to amend this very same section that seeks to award revisionary powers to the Central Government.

Another point of concern is the extremely low amount of time given by the Ministry of Information & Broadcasting to call upon public as well as the film fraternity’s opinion and suggestions on the proposed amendments. The Ministry of I&B has sought suggestions, discussions and debates on the proposed amendments within 14 days. A matter such as this that has varied aftereffects needs a lot of consideration and discussion for its proper implementation after sound discussion with all affected parties. Two weeks is extremely limited time and will result in ill-conceived laws becoming a reality.

The Positives – 

However, all is not bad with these newly proposed amendments. Some of the newly made recommendations are noteworthy in being essential as well as necessary changes.The decision to rate films on the basis of age under certification is in fact seen as a welcome change and something that was very necessary. According to Gautam Chintamani, a reputed film critic, age-appropriate film categorization is one of the key elements of the act and something that was even recommended in the Shyam Benegal film committee. The amendments also seek to increase the consequences to be faced for piracy. The new punishments for anyone undertaking piracy have been extended to a minimum of 3 months that may be extended up to 3 years and a fine of up to 3 Lakh Rs. These new provisions would be monumental in curbing the menace of piracy that plagues Indian Cinema. So, in hindsight, not of the newly proposed amendments and recommendations are necessarily detrimental or problematic in nature, but these positives cannot justify the bigger evil that these laws entail.

Conclusion – 

Any law, that a sovereign state makes should ideally be for the overall welfare and well being of the people as all laws represent the will of the people which is the ammunition of the state. A legislation, that is draconian and authoritarian will only hinder people’s free will in a civilized society. On the outside, the proposed amendments seem like one that is necessary and ineluctable; it is only in a detailed examination that the true downsides of the new laws can be seen. A country such as ours that has an extremely poor track record of permitting freedoms, new legislations such as the proposed amendments to the Cinematograph Act maybe the last nail in the coffin for creative freedom & expression.

CORPORATE GOVERNANCE AND EASE OF DOING BUSINESS: STRIKING THE RIGHT BALANCE

Khushwant Nimbark, Rajiv Gandhi National University of Law

PROLOGUE

Discerning the interface between Corporate Governance and Ease of Doing Business unveils the fact that there has been a dearth of research insights on the correlation between the two. Nevertheless, the very fact that good corporate governance is a desideratum for economic growth and apart from providing a more congenial environment for investment, it also creates opportunities for promoting free-market practices, fairness and rule of law; underscores the mutuality between the two. A sound corporate governance system provides for a set of rules that not only offers a congenial legal framework but also facilitates the simplification of procedures and pacing up the decision-making process for the ease of doing business, thus ushering in, a healthy environment for investment and growth of the corporate sector. In fact, the notion that good governance is essential for a propitious business environment emanates from the proposition that an economy that undergoes a moderate level of bureaucratic controls, witnesses greater compliance to the legislative framework and provides for an effective mechanism to curb evils like corruption, always proffers a sound business environment. All such regulations that define corporate governance must essentially be efficient, transparent and easy to implement so that they help the businesses to flourish.

On the other hand, the very idea of the concept of Ease of Doing Business subsumes in itself the dimension of the regulatory framework that governs the corporate sector. Perhaps this is why the principle of doing business is founded on the premise that business activity always benefits from the rules and ordinances that can potentially generate an environment that further stimulates new entrants and also creates prospects for greater innovation, expansion and productive growth.

EASE OF DOING BUSINESS – THE CONTEXT IN THE CONCEPT OF CORPORATE GOVERNANCE

Since 2006, the World Bank has been publishing data of various countries across the globe, ranked on the Ease of Doing Business index. In fact, the surveys conducted by the World Bank, while publishing the data, have also revealed that the economies with higher ranks in ease of doing business are not the ones with absolutely no regulatory framework, but those where the governments have created rules to facilitate market interactions, without unduly hampering the private capitalist regime. The growing interest of the policymakers and academicians across the world, in the issue of corporate governance, has contributed to the burgeoning of various dimensions of the concept of corporate governance. However, amongst the key components to the term, the ‘regulatory burden’ indicator which is identified as one of the parameters defining corporate governance, is conceived to examine the effect of the policies like price control measures, the inadequacy of banking regulations or intemperate regulatory control, which may otherwise be construed as being market-unfriendly and non-conducive to the growth of business in an economy. Thus, the interplay of the concept of ease of doing business with corporate governance is palpable even at the genesis of the idea of corporate governance.

It can be conveniently surmised that of all the components used for defining corporate governance, the most influential factors that exercise their effect on the ease of doing business are the ones that relate to the capacity of the government for contriving policy framework and ensuring its implementation. Some research findings have even been built upon the premise that the indicators of corporate governance are positively correlated to the business environment, even if the extent of the correlation differs between the low income and high-income countries[i]. Factors like ‘government effectiveness’ which are indicative of the ability of the government to formulate and implement an effectual policy framework and productively deliver public goods and services are one of the most potent governance factors influencing the ease of doing business in an economy. Furthermore, even the ‘quality of the regulatory framework’ goes a long way in implicating the extent of competition infused into the business environment and potentially strengthening the financial institutions so as to aid them in contributing towards prosperous businesses in the country[ii]. Another aspect included in the parameters defining corporate governance is the extent to which a state can effectively exercise ‘control over corruption’ and research findings substantiate that abuse of the public sector for private benefit can potentially harm the prospects of business development[iii].

STRIKING THE RIGHT BALANCE

The history of the Indian corporate sector succours the fact that the instances of corporate governance failure like the Satyam Computer Services, DHFL, Jet Airways, etc. exhort for the corporate sector to look into the best global practices of governance and adapt them appropriately to the Indian regime. That is why in line with keeping up with the requirements of corporate governance for promoting the ease of doing business in India, the government of India has been instituting reforms to improve the regulatory environment so as to achieve the twin objective of good governance and also inducing better business environment. Amongst these measures, the pre-eminent measures include reduction of tax burden on the corporate sector, especially aided by the induction of the Goods and Services Tax regime which provides clearance to 72 amendments to the Companies Act, 2013 which paves way for the Companies (Amendment) Act, 2019 and also decriminalises the compoundable and non-compoundable offences under the Companies Act, 2013. Each year, the World Bank publishes data on the Ease of Doing business rank prepared on the basis of a survey of various countries and this ranking is based upon the transparency of the ground rules, promotion of markets and revving up the market enterprises, boosting the development delivery mechanism and subsequently changing the perception and investment sentiments for the economy.  Perceivably, India has been able to perform better on the Ease of Doing Business Index in 2020 and its position improved by 14 places to secure the 63^rd rank amongst the 190 countries surveyed this year, yet there is ample room for more improvement. A deeper analysis of the ranking report reveals that India has performed poorly (136^th rank in 2020 from 137^th in 2019) on the parameter of starting a business and that is where India needs a spur so as to attract more savings and investments from across the globe. Pacing up on the ladder of making business more easily doable in the economy, calls for revamping of the business climate and requires multifarious sets of ameliorations. An era of reforms needs to be initiated which can strengthen the climate for business investment and attract more capital from even across the borders. A major issue that inhibits a congenial economic ethos is the scum of bureaucratic controls and the consequent phenomenon of corruption, which has bred into the Indian system and got integrated with the officialdom for years together. Such a setup of work regime needs to be changed and transparency has to be induced in the air that blows across from the political front to the business environment so that the resourceful section does not grow at the expense of infringing the rights of the weaker. There is also a dire need to abolish the mechanism of complex and irrelevant documentation attached to the initiation of business enterprises. Such excessive control by the government only impedes the business growth prospects and a complete shift from documentation to the online mode of application can help to reduce the undesirable state intervention and also encourage the businesses which are at the verge of a tipping point and can contribute significantly to the economy. Apart from the measures required to reduce the procedural lapses, reforms are needed on the legal aspect as well. The time taken by the Courts in India for deciding matters is usually so long that the delays further culminate into deterrents and circumstances that obturate the business activity. This calls for speedy action on the part of the judiciary which can be achieved with the help of additional manpower and the use of digital technology to expedite the process of pronouncing decisions. If the Courts work at a snail’s pace, business would not grow. With regards to fulfilling the credit needs of the business, the banks too need to take a boost so that the time lag that elapses between sanction of loans and receipt of money be reduced before it adversely reflects upon the zeal or enthusiasm of the business proprietors. The present era is an age of technology and internet, and the quasi-deprived sectors like the MSME sector enterprises can be provided access to resources and also to the policy benefits of the government through the use of the contemporary technology facilities like labour, power, legal guidance, access to infrastructure can be arranged using the powerful tool of internet of things, which can go a long way in not only luring local but foreign investors too. The industrial potential of an economy like ours rests in its labour and to capitalise on the strength of our labour, efforts are required to train, educate and empower the labour and also incentivise them using lucrative wage rates so as to enable them to be able to contribute to various sectors of production.

EPILOGUE

Conclusively, the policymakers and the state authority need to reasonably frame policies in coordination and consultation with the business community. No business environment can flourish under despotism. The ease of doing business can only be enhanced with a pro-active policy approach. Since in the realm of contemporary reforms, the issue of ease of doing business does not confine itself to the private sector alone but also holds equal relevance for the public sector, given the increasing prospects of partnership and growing dichotomy between the two, therefore the present-day governments ought to work out a separate regulatory regime which aims at promoting the ease of doing business and contributes significantly to the development of a better and a healthier business environment.

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[i] Cristina Bota-Avram, (2014), Good Governance and Doing Business: Evidence from a Cross Country Survey, Transylvanian Review of Administrative Sciences, No.10, pp. 27 – 45.

[ii] Gani, A. and Duncan R., (2007), Measuring Good Governance Using Time Series Data: Fiji Islands, Journal of the Asia Pacific Economy, Vol. 12, No. 3, pp. 367-385

[iii] Weder B.,(1997) Corruption and the Rate of Temptations: Do Low Wages in the Civil Service Cause Corruption?, IMF Working Paper No. WP/97/73, available at

http://www.imf.org/external/pubs/ft/wp/wp9773.pdf, last accessed on 19.04.21

Caste, Crime and the Constitution

By Archisha Chowdhury, Jindal Global University

The ancient ‘caste’ regulated societal norms. It carried forth a division of labour and imposed rules of social conduct such as endogamy, untouchability and other practices. It reproduced socially, the economic rank of an individual. This system, its prescribed ranks, and its inequalities oppress and discriminate today, rationalized as tradition. Foregoing its predetermined status has been a struggle for many, that is yet to be solved. A low caste-status today also brings with it the vulnerability of being victim to acts of violence. Such acts range from subtle inequalities like drinking from separate wells to the aggressive crimes of rape and murder. The law, and its formal structures in society, vow to provide equality, freedom and social justice to such minorities. Further, the state has codified rules prohibiting and protecting against acts of caste violence. However, the marginalized remain. This article attempts to understand how such structures interact with and shape the contemporary reality of caste minorities in India. Further, it tries to reason out the shortcomings of the law in doing so.

Caste as an institution has been historicized, not only in its doctrine of purity and pollution; but also, in the social reproduction of inequalities—in rank, access to economic resources and knowledge—that it codifies. Ambedkar defined the system in terms of the dignity and power it distributed, as a ‘graded inequality in which castes are arranged according to an ascending scale of reverence and a descending scale of contempt’. As you went up the caste order, your privilege and power increased while as you went down, the degree of contempt and hatred towards you rose. This hierarchy was built in relativity. A higher caste was ascribed the power to oppress any and all castes below it. Violence and coercion played a significant role in the functioning of this brahmanical system. As Chakravarti says, “Even today, especially in rural India, the caste system hinges on the power to enforce caste-based obligations, to the privileged upper castes, by the dominant caste of the area.” This dominance, was based on wealth and ownership of land, which also gave the dominant caste access to power. Marginalized communities have been subject to pronounced acts of violence ever since.

The colonial rule, despite its attempts, failed to eradicate caste. With the advent of a new Constitution and its liberal framework, however, there emerged a new found hope for minority castes. It promised them not just individual autonomy, equality, liberty and rights but protection of their self-respect and dignity. It vowed to them an equal status in society. But this promise was unfulfilled. As Guru argues, for the majority, democracy in pre-independence India was enmeshed with notions of nationalism. The liberal form here, translated into the emotion of national pride that the British had snatched from them. Its nationalist imagination relied on overcoming the humiliation of the colonial rule and reinforcing an identity of self-rule and pride within the democracy. Minority groups, with a separate notion of nationalism, were doubtful of the capabilities of such a democracy in conferring a ‘socially’ equal status to all. In fact, “Dalits led by Ambedkar believed that the socially dominant sections would hijack independent India and manipulate liberal democracy in order to consolidate and expand their own power through the reproduction of the old hierarchical order that placed Dalits at the bottom.” Further, a national identity was built based on Hindu chauvinism which dominated minority notions. Though this framework may have avowed individual rights for marginalized castes, it failed to ascribe to them equality in the eyes of those hierarchically above them. Under the garb of nationalist intention, liberal principles failed to socially translate.

The making of the constitution was a historically significant period for caste minorities. The assembly was to formalize the constitution into a liberal structure, owing to a liberal democracy. There was, however an undeniable trend of attenuation with respect to group rights of minorities in the course of its making. In the course of deliberations of the Constituent Assembly, the political safeguards of ‘Backward Classes’, such as their representation in legislatures and executives saw a shift from multiculturism and openness at the beginning to a limited support and the end. The key trigger for this ideological shift was the abolition of reservation for religious minorities, which festered into provisions for rights of other minority groups. The rejection of demands of a separate electorate for Backward Classes and weighted and guaranteed representation in the executive were a few direct consequences. With respect to guarding cultural and educational rights, the Constitution enlisted fundamental rights on Protection and Interests of Minorities and the Right of Minorities to Establish and Administer Educational Institutions. In due time these provisions were, however diluted in such a manner that it created ambiguity and reduced enforceability through the language of the articles. As Bajpai propounds, “Legal institutions constitute themselves as part of liberal democracy through the language of such rights. These institutions neutrally adjudicate and arbitrate between individual rights and political institutions.” They are conferred with the role of protecting Backward Classes against any discriminatory practice and providing justice on such grounds. For instance, the fundamental rights enshrined in the Constitution provide protection to peoples against practices of untouchability and prohibit discrimination on basis of caste. However, reality lies in the fact that legal recourse to violation of such rights is firstly, negatively enforced and hence very limiting in their scope and secondly, limited to wrongdoings or failures of the State or entities under/acting on behalf of the State.

Violence is a substantial tool in the reproduction of the power of caste. Crimes of caste help reinforce the stratified inequalities that the caste system orders. A large portion of the crimes of caste are those against women. The NCRB Report suggests that most such crimes against Dalits are those against women—Assault on Women with Intent to Outrage her Modesty, Kidnapping and Abduction, and Rape constituting a significant portion of such reported crimes.It follows that crimes against women of a lower caste are means to not only take away the agency of the victim, but also their entire community. Kannabiran says that, “Gender within caste society is thus defined and structured in such a manner that the ‘manhood’ of the caste is defined both by the degree of control men exercise over women and the degree of passivity of the women of the caste.” Violence is thus aimed at taking away that manhood.

Most crimes however go unreported and even less convict the perpetrator. There are instances, now fewer than before, where victims voluntarily deny the crime and abstain from filing an FIR. Caste here, functions as a social norm, conditioned and internalized into the minds of such individuals. Others lack faith in the system and accept their powerless position. Those who break do through this conditioning, when attempt to report crimes are mostly unsuccessful. The crime data here, falls short as it is inadequate in recording failed attempts to file reports by the victims of such crimes, where the police actively obstructs the process of administering justice by denying the filing of FIRs, harassing and assaulting them. The Prevention of Atrocities Act lists twenty-two offences under crimes of caste, all cognizable . But its power remains limited when cases are rarely even filed. Taking the example of the infamous Khairlanji Massacre of 2006 where four members of a family belonging to the Scheduled Caste were murdered, the women of the family, paraded naked in public and then murdered on having filed after numerous attempts and obstacles, a police report over a land dispute. After the crime, the entire village, acted as though the crime never occurred. The local police shielded the perpetrators during its investigation. A government report on the killings, prepared by the social justice department has identified top police officers, doctors and even a member of the Legislative Assembly, who actively participated in a coverup and in the delay and hindering of investigations. In doing so, the State, in fact, institutionalises impunity, granted to those of the upper castes and makes their crimes invisible in the eyes of law. This violence is empowered through institutions such as police, administration and the magistrate who hold substantial economic and political authority. Legal systems seem unfazed by acts of caste-violence—from aggressive crimes of rape and murder to the less evident but violent practices of untouchability, abolished yet prevalent in the country. The judiciary as an institution is also often seen denying and disavowing the rights of marginalized castes. An example of this would be the lower court’s verdict on the case that led to the infamous Vishakha Guidelines which involved the gangrape of Bhanwari Devi, a low caste social worker by upper-caste men. Here the lower court, despite evidence, acquitted all five perpetrators of criminal charges. It follows, that most crimes of caste go acquitted.

These instances illustrate the antagonizing nature of the institutions that govern us. The representatives of such institutions act in solidarity of their castes, and further formalize the caste system. The law here fails to translate, not only in the society, but also the institutions that are meant to regulate it.

Euthanasia – Relief from Suffering or Assisted Suicide

Miss Stuti Ladia, Mumbai University

“Death is not the greatest loss in life. Greatest loss is what dies inside us while we live.” – Norman Cousins

Euthanasia, commonly known as Mercy Killing, has been derived from Greek words ‘Eu’ which means good and ‘Thanotos’ which means death hence the word literally means good death. It is medically and legally defined as an act of terminating one’s life to relieve him from his suffering, a terminal illness, an incurable disease and his situation is painful. Euthanasia is adhered to aid the patient die peacefully rather than live painfully.

Euthanasia can be branched into two main categories namely Active and Passive Euthanasia on the basis of the methods in which it can be performed.

Active Euthanasia – It is a process which is conducted out of mercy. The procedure is undertaken (by the third party) like the administration of a mortal/lethal drug. There are countries that have passed legislation permitting assisted suicide and active euthanasia. The only difference between them is in the former, the patient administers lethal medications on his own, and in the latter doctor or some other medical practitioner does it.

The Netherlands was the first country to legalize the passage of the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act” 2002 providing well-defined guidelines for Euthanasia. Belgium was the second nation to do the same. Also, in Switzerland assisted suicide can be performed by non-physicians. Both Active Euthanasia and Assisted Suicide are legal in Luxembourg 2008.

Passive Euthanasia – It involves withdrawal from the life support system or withholding medical treatment for continuance of life. Therefore, in passive euthanasia death is administered by an act of omission. Euthanasia can be further classified as ‘voluntary’ where euthanasia is carried out at the request of the patient and ‘non-voluntary’ where the person is unable to ask for euthanasia.

On the basis of consent it can further be divided into three categories

1. Voluntary Euthanasia:  This is when consent has been provided by the sufferer. However in India it is interpreted as an act of attempting to commit suicide under section 309 of the Indian Penal Code. In the judgment of Gian Kaur vs. State of Punjab (1996) 2 SCC 648 the court to provide clarity with regards to section 309 held that right to life guaranteed by Article 21 of the Constitution does not include the right to die. Justice J.S Verma had observed that under Article 21 of the Indian Constitution right to life was a natural and fundamental right however suicide or termination of life that is right to die is inconsistent and incompatible. 2. Involuntary Euthanasia: this is when the person is in coma or is brain dead and is not in the condition to provide consent.3. Non – Voluntary Euthanasia: to someone else making the decision to end one’s life. A person from close proximity or a close family member usually makes the decision. This is usually done when someone is permanently incapacitated or in a vegetative state for a very long period of time.

According to The Medical Treatment of Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill 2006, ‘terminal illness’ under section 2(m) is defined as:

i. Such illness, injury or degeneration of physical or mental condition which is causing extreme pain and suffering to the patients and which, according to reasonable medical opinion, will inevitably cause the untimely death of the patient concerned, orii. Which has caused a ‘persistent and irreversible vegetative’ condition under which no meaningful existence of life is possible for the patient.

Therefore, the patient must be suffering from some ailment causing extreme pain and suffering, which according to medical opinion, would ultimately lead to his death. The second condition is when the patient is in a “Persistent and Irreversible” Vegetative State. These patients without active lifesaving procedures would die a natural death. Hence, one would be reasonable to simply not keep the patient alive if he is suffering from intractable pain, psychological and emotional distress.

Legally in India Section 306 of the Indian Penal Code deals with Abetment of suicide and Section 309 defines attempt to commit suicide. As both the sections are punishable hence they result in making Euthanasia illegal in nature in India. Only those whose brains have stopped working or are dead can be taken off life support with the consent of family members.

In the Landmark Judgement of Aruna Ramchandra Shanbaug v. Union of India the Supreme Court in 2011 recognized passive euthanasia in this case by permitting withdrawal of life-support treatment from patients not in a position to make a voluntary decision.

Following are the facts of the case:

Aruna was a nurse in the King Edwards Memorial Hospital in Mumbai. In 1973, she was assaulted by a ward boy of the same hospital in the hospital basement. The ward boy tried to choke her by strangulating Aruna with a dog chain around her neck.

The attack shunned off the oxygen supply to her brain leaving her blind, deaf, paralyzed, and in a vegetative state for 42 years.

Aruna would only survive on boiled food. She was unable to move her hands or legs or perform the basic and meagrefunctions of a normal human being.

In 2015, Shanbaug, who was then 66 years old, died of severe pneumonia. She was on life support in KEM’s acute care unit.

Followed by this, Supreme Court laid down certain guidelines for passive euthanasia. This verdict made passive euthanasia a possibility in India by the virtue of the decision by the High Court.

To make Passive Euthanasia applicable in a particular case itis compulsory to take High Court’s permission before every case. Execution of the directive in presence of two witnesses, authentication by a Judicial Magistrate, permission from two Medical Boards, and a jurisdictional collector are some of the measures to be taken into consideration before any case.

In State of Maharashtra v. Maruti Sripati Dubal the court had held that section 309 of the Indian Penal Code is ultra virus to the Constitution of India. The Bombay High Court in this case stated that the Right to life under Article 21 includes the Right to die. It was accepted that Section 309 of IPC (attempt to commit suicide) is unconstitutional for it being violative of Article 21 of the Constitution. Court clearly stated in this judgment that the Right to die is just uncommon not unnatural.

In P. Rathinam v. Union of India it was held that section 309 of IPC was violative of Article 21 of the Constitution of India. The court stated that the section was irrational as it was it was punishing the person who had already suffered pain and agony. The person would be going through humiliation and disgrace due to his failed attempt of committing suicide. The court further added that his act cannot be considered to be going against any religion or culture as the act of killing himself does not have a baneful effect on the society thereby not causing harm to others hence interference of the state in the persons liberty was unwarranted in the present matter.

In Gian Kaur v. State of Punjab the constitutional bench of the supreme court however overruled the above judgement which stated that right to life and right to die is inherently inconsistent The Supreme Court stated that the Right to life does not include the Right to die but at the same time court also stated that the Right to life will include live with human dignity and the right to die with dignity. The court held that the right to die with dignity should always be distinguished from the Right to die.

In Common Cause v. Union of India the Supreme Court in 2018 recognized the right to die with dignity in this case and passive euthanasia was legalized and the permit was given to withdraw the life support system of those who are terminally ill and are in life-long comatose.  Subsequently, The Court also propounded the concept of “living wills”.

They differentiated between Living will and Advance Medical Directive. The court expressed that instead of the word living will Advance medical directive should be used and to justify it they gave the definition provided by Black’s law dictionary for the respective words. Living will through the dictionary meant “a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.” However the word advance medical directive was defined as “a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.”

Through this case law it was concluded that it is considered to be a fundamental right if a person chooses his right to die with dignity. They court had also added that a sound, adult human being in his conscious state of mind has the right to take a decision regarding his medical treatment and has a right to withdraw from taking one which includes withdrawal from devices which would save his life. The person also has a right to advance medical directives if in accordance to the safeguards and lastly in absence of advance medical directives the principle of persons best interest has to be taken into consideration and applied by the experts while taking a decision. The court however concluded that until a legislation regarding euthanasia is made by the legislature advance medical directives and their safeguards were to be in force.

Conclusion:

After going through the cases and studies we knowunderstand that euthanasia as a topic has strong arguments from both the sides. There does not seem to be any cut and dry reasoning behind whether euthanasia should be practiced legally or should be a punishable offence. You can either see it as a way of releasing someone’s painful life painlessly or use an unnatural course of action to commit a crime and go on with life.  

“Euthanasia…is simply to be able to die with dignity at a moment when life is devoid of it.” –Mary Mannes

TRACING THE HISTORY OF JURY TRIALS IN INDIA

Miss. Archisha Chowdhury, Jindal Global University

Introduction to the Jury System

The trial by jury, a prided invention of the British, is a system of administering justice that relies on a verdict given by the people. A ‘jury’ comprises of the citizens of the country, who are called on duty to adjudicate upon a case in trial. This is different from the most prevalent system of bench trials, adjudicated by a judge. The jury trial is a structured process wherein firstly, the counsel for both sides select the jury members who then listen to the facts of the case and decide upon its verdict. Mostly, jurors decide the fate of individuals in criminal proceedings.

A common law innovation, jury trials are widely used in several such jurisdictions. However, some civil law jurisdictions have introduced the system for serious criminal matters.1

Jury trials have been a matter of serious debate in contemporary times. Many deem it to be biased and ineffective. However, doing so is a gross generalization as its success depends from nation to nation.

THE INDIAN CONTEXT

Pre-Independence History 

Jury trials in India came about with British rule. Indians within their locales often practised the Panchayati system, however, it was quite different from the trial by jury.2 Initially, the East India Company had refrained from enforcing the jury system under English law. They implemented it inside a dual system of courts:

1. For Presidency Towns of Bombay, Madras, and Calcutta, the trial by jury was introduced. It was obligatory to enforce the jury system for criminal cases, with no such mandate for civil cases.3 The British, the Europeans, and in some cases Indians were tried by a jury.
2. For Moffussils, the regions outside the Presidency Towns, there was no obligation for implementing jury trial. Company Courts were enforced and Company officials presided over cases involving the natives.4

In 1834, however, Macaulay struck down the provision, upon realization of the inequality inherent in the system. This was especially pertinent with the increase in cases of violence of colonizers towards their domestics.

With the advent of the Crown Raj in 1858, the adoption of the Indian Penal Code in 1860 and the Indian Code of Criminal Procedure in 1861 followed.5 Trial by jury for criminal cases was now obligatory in High Courts for Presidency Towns, while for Moffussils it was optional. The rule of the superiority of the majority was followed for the decision regarding acquittal or conviction. It specified that the decision agreed upon by the majority would prevail. The number of jurors was to be between 5 and 9. Later, a Code was implemented to attest the number of jurors as 3 for petty crimes and that between 3 and 9 for severe offences.6

Arguing for Abolition

1. Procedural Delays and Costs:

The jury trial is a time-consuming process. It involves tardy processes like the summoning of individuals to act upon as jurors, their preparation, and the process of their selection by the counsel lawyers. There is also the delay in instructions given to the jury and the wait for their deliberation.7 The 14th Law Commission Report of India iterated that proceedings in jury normally followed a slow speed.8 Matters such as the facts and shreds of evidence of the case and the arguments placed by the counsel for the prosecution and the defence had to be explained in a straightforward, clear, and easy to understand manner so that the jurors could follow them. This led to delays in dispensing justice. Jury trials are also expensive and require more funds than trials by judges. Indians are paid remuneration for their service in the jury and have been found to use it as a lucrative opportunity.9 This led to bias and violated the Right to Fair Trial, enshrined in Article 21 of the Indian Constitution. 10

1. Adjudicators: Why a Judge is better than a Jury

A judge and a jury adjudicate in manners that are radically different. A jury is generally not experienced and educated in dealing with matters of the law, however, it needn’t be. It is an institution invented to provide to the accused, substantial justice from his fellow citizens, to “relieve against the procrustean application of legal technicalities”. Members of the jury are to serve as impartial, independent individuals who administer substantial justice, even if it means deviating occasionally from the strict application of artificial distinctions and logical rules.11 However, the problem arises in ignorance of the law by the jury, as such a case leads to jury nullification, approved in the case of R v. Bushell.12 Jurors were also found engaging in corruptive activities and accepting bribes.

The argument on the flip side, and largely the trend in India, is that the jury, deemed as ‘impartial’, is more susceptible to consider external factors or adopt discriminating views, generally leading to bias. A judge is a trained professional in separating any personal or external view from the facts and the law of the case, whereas ordinary citizens are simply not. This trend is seen throughout the jury trials in India. In Rex v. Dawes (1665), the first recorded jury trial in India, the accused, Ascentia Dawes was being tried for the alleged murder of her native slave, Chequa.13  A jury of 12 persons—6 English and 6 Portuguese—was called upon to adjudicate. They held the accused guilty of the murder, however changed their verdict to not guilty on account of not holding her accountable for the crime of murder ‘in the form or manner described in the indictment’.14 This was a clear case of the racial bias that operated with verdicts by juries and invited criticisms on the ineffective functioning of juries in India.

Public sentiment and media also had a grave impact on jury decision-making in Indian history. Here, the infamous K. M. Nanavati v. State of Maharashtra (1959), becomes relevant.15 In this case, the accused K. M. Nanavati was a naval officer who was on trial for the murder of Prem Ahuja, his wife’s lover. After committing the crime, Nanavati had surrendered himself to the police. The Sessions Court had initially tried the case, but on appeal, it went to a jury of the Bombay High Court. The case received significant traction from the media, as it was one involving a Commanding Officer in the Navy. The media painted the narrative of the revered Navy man as the “deceived husband caught in a crime of passion”.16 It swayed the jury to the extent that the verdict pronounced was 8:1, not guilty. The facts of the case were misread and distorted, and despite clear evidence incriminating the accused, the jury acquitted him of the charge. This, however, was later overturned. This case uncovered the incompatibility of jury trials with India and ultimately led to the abolition of its provisions.17

Another relevant matter is that a judge is accountable for the decision he makes. This means that judges ought to deliver a judgment providing the entire rationale for their decisions. These judgments are accessible to the public at large, whereas what happens within a jury room is never disclosed. 

The Abolition

The ‘Right to Trial by Jury’ in India was not a fundamental right of the Constitution.18 The obligation of a jury trial extended only to High Courts of Presidency Towns. Its prevalence was restricted to a choice in Mofussil. With independence, it was already in decline and the Nanavati case seemed to accelerate the process of its abolition.19 The jury found no place in the Constitution and in 1958, the 14th Law report commission recommended its abolition.

Finally, it was abolished in 1969 with the removal or modification of provisions on juries in the Criminal Procedure Code.20 Sections on procedural aspects of jury trials such as the number of jurors were repealed. The provision ordering the State Government to notify the cases obligated to be tried by jury was replaced with Section 477 of CrPC, conferring to the High Courts the power to make rules on such matters.21 Contrary to the trend before, where appeals on jury verdicts could only be drawn in cases of miscarriage of justice, the CrPC was amended to allow appeals under reasonable circumstances.22

The Anomaly

Broadly, it is evident that the system of jury trials was incompatible with India at large. However, some special courts are an anomaly to this. One of them is the Parsi Matrimonial Court. It has a jury system that dispenses justice even today. The Parsis of India are a close-knit and small community, concentrated primarily in Bombay.23 Cases in the Parsi community are presided by a judge who sits over the trials and a 5 member jury (appointed delegates), who deliver verdicts on matrimonial matters. The delegates are appointed for 10 years. These delegates are drawn from a pool of 20 jurors who are nominated from the community council. They are generally the revered members of the community such as doctors and lawyers. These five-member juries, usually comprising of retired men and women, spend six hours in the Bombay High Court for up to 10 days during a single session, granting or refusing divorces to Parsi couples.24 In Naomi Sam Irani v. Union of India,25 however, this system had been challenged. The petitioner argued that this system caused delays, and her case was not taken up until 2 years later. Further, she challenged sections 18, 19, 20, 24, 46, and 50 of the Parsi Marriage and Divorce Act.26 She argued that these sections violated Articles 14 and 21 of the Constitution.27 Substantial change on this matter is, however, awaited.

In conclusion, the abolition of jury trials in India is an action that is in the interest of dispensing justice in India.

SOURCES:- 

1. James G. Apple & Robert P. Deyling, (1995) A Primer on the Civil-Law System, HeinOnline.
2. A.G.P. Pullan, ‘Trial by Jury in India’ (1946) Vol. 28 No. 3/4 Cambridge University Press on behalf of British Institute of International and Comparative Law.
3. Ibid.
4. Ibid. 
5.  Criminal Procedure Code 1861, Act No. 25, Acts of Parliament, 1861, s 322 (India).
6.  Criminal Procedure Code 1872, Act No. 10, Acts of Parliament, 1872 s 274 (India).
7. Landis, Benjamin. Jury Trials and the Delay of Justice. American Bar Association Journal 56, no. 10 (1970): 950-52. 

Accessed March 8, 2021. 

http://www.jstor.org/stable/25725272.

1.  Law Commission India Report, Ministry of Law, Rep. on Reform Of Judicial Administration 14 (1958).
2. Report of the Jury Committee Bihar (1952), at 2.
3.  INDIA CONST. art. 21.
4.  FOSTER, DWIGHT, ADVANTAGES OF THE JURY SYSTEM, THE NORTH AMERICAN REVIEW 135, no. 312 (1882): 447-60.
5.  R v Bushell (1670) 124 E.R. 1006.
6. Sriram V, A mistress-maid case of long, long ago (2014) Vol. XXIII No. 21 Madras Musings.
7. Ibid. 
8.  K.M. Nanavati v. the State of Maharashtra (1959) (1961) 1 SCR 497.
9. Bachi Karkaria, A ‘crime of passion’ that India never forgot, BBC News, May 15, 2017.
10. James Jaffe, ‘After Nanavati: The last Jury trial in India?’ (2017) Vol. LII No. 32 Economic & Political Weekly.
11.  INDIA CONST., Part III.
12. Law Commission India Report, Ministry of Law, Rep. on Reform Of Judicial Administration 14 (1958).
13.  Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1973, s 9
14.  Ibid, s 477.
15. Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1973, s 9
16.  Mitra Sharafi, Law and Identity in Colonial South Asia Parsi Legal Culture, 1772-1947 (Cambridge University Press 2014).
17.  Soutik Biswas, Parsi matrimonial courts: India’s only surviving jury trials’ (BBC, 24th September 2015)
18.  Naomi Sam Irani v Union of India [2017] SC.
19.  The Parsi Marriage and Divorce Act 1936, s 18, 19, 20, 24, 46, and 50.
20. INDIA CONST. art 14, 21

Seat theory and Lex Arbitri in Int. Commercial Arbitration

Article By Snigdha Roy,University Of Dhaka

Prospects of Seat theory or Localization:

The traditional Seat theory equates to Lex Arbitri and Lex Loci Arbitri. It has given a strong assumption that arbitration shall be governed by the law of the seat of the arbitration without giving the choice of law to the parties or Tribunal.[1] The reasoning behind this traditional approach is quite complicated. The seat of arbitration plays a significant role as there exists a relation between the jurisdiction of a seat and arbitration itself. Where the arbitration is supposed to take place, the state should provide a legal body to execute the arbitration procedure properly. The court of the seat has exclusive authority to control the legal effects of any acts within its jurisdiction.[2] So, it is essential to administer an award to a certain jurisdiction for its enforcement. Any legal power can only be exercised within a certain jurisdiction or under a certain system of national law. Therefore, arbitration within a territory cannot be executed without a touch of national law. Where the arbitrator is unfamiliar with the applicable law, the court of the seat is considered the most ‘competent and effective’ authority over Tribunal.[3] So, the arbitration ad hoc or Institutional cannot escape from the law of the seat of arbitration. However, Seat theory also ensures the enforcement and recognition of arbitral awards by granting nationality to them. NYC provides the grounds for enforcing and recognition of arbitral awards by referring to the law of the seat of arbitration or the law of the place where the award was made.[4] By this NYC expressly showed a territorial relation between the seat and Lex arbitri. This convention also gives priority to comply with the law of the seat.

Besides, Seat theory defines that a whole arbitration procedure will execute in a single country but today arbitration takes place in more than one country, sometimes outside the chosen seat. Seat theory also discourages the party autonomy as the applicable law chosen by the parties is affected by the law of the seat. Nowadays, the Seat theory narrows the freedom of the party by allowing too much intervention of domestic courts, contrary to recent developments in arbitration law.[5] Therefore, the traditional approach limits the party autonomy and empowers the local courts to an extent.

Enforcement of arbitral awards: A return to the Lex Loci Arbitri

NYC demonstrates grounds on which foreign awards can be recognized and enforced. Yet award can be refused to enforce if respondent satisfies any of the exclusive grounds referred in Article V of the New York Convention.[6] The grounds for refusal of enforcement can be divided into two groups: Firstly, inconsistency with arbitration agreements, the relevant grounds of the NYC are a violation of due process and public policy of the enforcing state.[7] Secondly, the ground relates to the validity of arbitration agreement which attracts the complexity of choice of law. In the era of a traditional approach, the national court will apply its own Private International Law rules to determine the applicable law and also ascertained the governing law of the arbitration agreement. Now the question can be raised whether such Private International Law influences the refusal of enforcement of an arbitral award. Because Private International Law rules fluctuate from country to country.[8] Hence, enforcement of the arbitral award has relied on the Private International Law of the enforcing state.

Article V(1)(a) of the NYC provides that an award may be refused when the parties of the agreement are “under some incapacity” or there is an “invalid agreement”. In this issue, which law will be applicable to determine the capacity of the party and the validity of an agreement- is very disputed and unclear. Even in common law, system lacks a clear choice of law rule.[9] There are many established views that the applicable law can be a law of the domicile or the law of the contracting state.[10] It is also stated that the arbitration agreement is governed by the law of the place where the award was made in the absence of the party’s choice. Thus, the private International Law of origin country (where the award made) is applicable as governing law of the arbitration agreement. Therefore, if the private International Law of every state influences the applicable law to the arbitration agreement, it is obvious that enforcement of an award will depend on the private international law of enforcing state.

Article V(1)(c) of the said convention refers that an award can be refused to enforce where the Tribunal acts more than its jurisdiction. The enforcing state is under a duty to interpret the terms of the agreement whether the given award was by following the terms of an agreement or not. For this, the enforcing state needs to determine a governing law of the agreement. National courts, therefore, have to follow the Private International Law. Usually, most of the national law provides that the governing law will be the law explicitly chosen by the parties.[11] Complex situation arises when the parties are not subjected to any applicable law to the arbitration agreement. Common law provides two steps to determine the governing law of the arbitral agreement; firstly, the closest connection with disputes, Secondly, the conflict of law rules. The conflict of law rules differs from jurisdiction to jurisdiction. So, the different national courts determine different governing laws of certain arbitration agreements. Similarly, the closest connection test may happen with different outcomes. Thus, to enforce an award that is beyond the matter of arbitration agreement widely depends on the particular jurisdiction.

Again, Article V(1)(d) of the Convention mentioned other grounds to refuse recognition and enforcement of an arbitral award. An enforcing court may refuse to enforce an award where the composition of the arbitral tribunal was not under the terms of the agreement or in the absence of such arbitration agreement not in accordance with Lex Loci Arbitri. However, this article of this convention encourages the party autonomy principle as it gives priority first to the arbitration agreement, later law of the Seat. This Article also attracts the Geneva Convention, which requires that the composition of the arbitral tribunal and arbitral procedure should be both by following per the parties agreement and the law of the arbitral seat.[12] This Article is related to the choice of law problems and the enforcing states required to understand the intention of the parties. The said convention requires the choice of law for arbitration agreement and such choice of law necessarily attracts the Private International Law. As every Private International Law is different so the enforcement of an award under NYC has become less certain. Hence, coming back to the Lex Loci Arbitri is the best way in the problem of choice law for enforcing the award.

Mandatory Law and Public Policy

Although party autonomy is recognized worldwide, it is not absolute. Because parties can exercise autonomy power complying with the mandatory provision and public policy. The applicable law will also be influenced by such mandatory rules, like, an arbitration proceeding can be declared a violation of public policy. Since the mandatory rules and public policy fluctuate from country to country, the idea of party autonomy is restricted by mandatory provisions and public policy of Lex Arbitri. If the choice of law does not conflict with the said provisions, then parties are free to exercise their autonomy. Where parties decide to settle the dispute separately without abiding by the mandatory rules and public policy, the award will end with unenforceability.

Is the Delocalized theory completely out of reach of the Lex Loci Arbitri?

Delocalized arbitration does not follow the notion that International Commercial Arbitration has a forum and is governed by the law of the forum.[13] In SA Coppee Lavalin NV v Ken-Ren Chemicals and Fertilizers Ltd.[14] described delocalized arbitration as “a self-contained juridical system, by its very nature separate from national systems of law”.[15] It is also well established that unlike the judges the arbitrators are not bound to follow the conflict of law rules rather take into account the common intention of the parties.[16]

The different national legal system has different rules of arbitration which causes complexity; to avoid such unwanted interference of the legal system, parties choose to delocalize the arbitration. Nevertheless, this idea is discouraged in common law, and it is also argued that arbitral proceedings must be connected with any municipal system of law.[17]Without the touch of any legal system a proper arbitrationis impossible. Several issues relating to the arbitration agreement, like, the validity of the arbitration agreement or enforcing the arbitral award need to go through legal proceedings. The delocalize theory has come from the party autonomy. Party autonomy is also followed some legal systems. “National court may exist without arbitration, but arbitration certainly cannot exist without national court”.[18]So, only the national court can give legal effect to any action whereas the arbitrator is unable to bind any party. The arbitration will not be completed without the intervention of the national court even though the party’s intent to delocalize the arbitration for avoiding legal procedures. Delocalize arbitration is not completely out of the reach of Lex Loci Arbitri. Despite, delocalize arbitration proceedings is still ambiguous and not universally accepted the award.

Conclusion

In conclusion, the procedural law in the arbitration can be determined by four steps test. The mandatory provisions of the Lex Loci Arbitri will be the first choice of law. So, the law of the seat shall prevail. Beneath the level agreements of the parties which shall not in conflict with the mandatory provisions of the Lex Loci Arbitri. This can be either Arbitration rules that the parties agreed upon or specific agreements made by the parties which could again be derogations from the arbitration rules that the parties have agreed upon. It is an interesting question whether there are mandatory provisions within the Arbitration rules of certain arbitral situations. In this regard, I am of opinion that this is not the case in practice. However, this can mean that the parties could in theory derogate from those provisions but the arbitral institutions will probably reject to administer those arbitrary proceedings conducted under such rules. Underneath this level, the provisions of the Lex Loci Arbitri will govern questions that are not governed by agreements of the parties. So, questions not governed by the arbitration rules or very specific agreement of parties, will go back to the Lex Loci Arbitri.

Apart from the traditional approach, arguments favor the delocalization theory particularly where the seat of arbitration merely is the venue of the arbitration. Usually, the seat of arbitration is unrelated to the parties as well as to the subject of the contract. Therefore, it might seem odd that the public policy or the mandatory provisions of arbitration law of that country should influence the arbitral award or the arbitral proceedings. Yet at the current stage, it is just a matter of fact that most national laws or Lex Loci Arbitri will have an influence on the arbitration proceedings as well as the arbitral award. Therefore, the Arbitral Tribunal should take into account the law of the seat of arbitration, mandatory provisions as well as its public policy consideration.

As International Conventions had imposed limitations on national arbitration law so the Private International Laws are becoming more arbitral friendly. By this International parties are attracted by such national laws and select the most appropriate law as governing law of arbitration and the law that belongs to the country will be the seat of arbitration. Altogether, the arbitral seat plays a very significant role in Arbitration. So, to avoid unwanted complexities choice of the seat should perhaps be select carefully by professionals. Getting a neutral and fair award mostly depends on the choice of the seat of arbitration. Arbitral institutions like ICC and LCIA provides arbitration clause which can be an option to adopt such rules for parties to get a fair, easy, and neutral settlement.

To sum up, national jurisdictions function in an international character in International Commercial Arbitration. Besides, International Conventions and principles give a legacy to the arbitration agreement and impose restrictions on a state to make more arbitration-friendly litigation. On the other hand, before choosing a seat of arbitration parties must know the state’s Lex Loci Arbitri. By this, there will be fewer chances of conflict of rules. Moreover, Lex Loci arbitri does not prevent the scope of party autonomy rather it gives ample application to other law. But there is no solid direction to determine and select applicable law. Perhaps, it is out of the parties’ capacity to decide which law will be appropriate for the subject matter. It is better to find a balance between parties and arbitrators. Still, there remains ambiguity how the applicable law will be determined in the absence of a choice of law. In this regard, I want to mention Article 28(2) of UNCITRAL Model Law which provided that the arbitrator will decide by following per under Private International Law. Therefore, the parties are not deprived of getting their expected fair and neutral award. [1]Belohlavek AJ, “Seat of Arbitration and Supporting and Supervising Function of Courts” [2015] Czech (& Central European) Yearbook of Arbitration 26.

[2]Good R, ‘The Role of the Lex Loci Arbitri in International Commercial arbitration” (2001)17 Arbitration International 23.

[3]Chen W-J, “Determining “Appropriate” Procedural Rules of International Commercial Arbitration and Its relationship with the law governing arbitral procedure: In the Perspective of Enforcement Under the New York Convention (2009) Contemp. Asia Arbitration 158.

[4] New York Convention (1958), Art. 5

[5]Secretariat’s Guide, p. 199

[6]Albert Jan van den Berg, The New York Convention of 1958 (Kluwer)

[7]See Art. V(1)(b) & V(2)(b) of The New York Convention

[8]Peter Stone, EU Private International Law (Edward Elgar, 2nd Ed. 2010) at p 3; Garry Born, International Civil Litigation in the United States Courts (Kluwer, 3rd Ed,1996) at p 492.

[9]Halsbury’s Laws of Singapore vol. 6(2) (Lexisnexis,2009) at para 75.370

[10]Sotomayer v De Barros (1877) LR 3 PD at 5, Baindail v Baindail (1946) p 122 at 128

[11]Gary Born, International Commercial Arbitration: Commentary and Materials (Kluwer, 2001) at pp 2153-2163

[12]Van den Berg, supra, note 23 at 323

[13]Julian Lew, “Achieving the Dream: Autonomous Arbitration?” in Arbitration Insight: Twenty Years of the Annual Lecture of the Schoolof International Arbitration (Kluwer, 2007) at p 455

[14] [1995] 1 AC 38

[15]SA Coppee Lavalin NV v Ken-Ren Chemicals and Fertilizers Ltd [1995] 1 AC 38

[16](1964) 13 ICLQ 1011

[17]Bank Mellat v Helliniki Techniki SA

[18]A. Redfern &amp; Martin Hunter, with Nigel Blackbay &amp; Constantine Partasides, Law and Practice of InternationalCommercial Arbitration (6 th Ed. OUP 2015)

A Look at India’s ‘Global Knowledge Superpower’ Policy

Article by: Kinjal Baug

“Education is not the learning of facts, but a training of the mind to think”– Albert Einstein[1]The role of education is indispensable for human beings to participate freely in society. In the 21st century, the role of education is picking up significance and higher education, especially, is given the paramount significance in reshaping the fate of our society. The role played by Higher Education is inevitable in any country’s development, and the Higher Education Institutions are viewed as one of the basic assets in the society.India positions third in the world higher education system as regards to size and diversity and the largest in the world as regards to the number of educational institutions.[2] However, India’s higher education system is positioned 26th in the world in QS Higher Education System Strength Rankings 2018.[3] It lingers behind others in numerous components such as low GER, no valuation, inapt infrastructure, deficiency of faculty, low quality of education, obsolete curriculum, accentuation on rote learning, accreditation issues, administrative issues, inadequate fund allocation for research, and so on.National Education Policy (NEP) 2020 contemplates a total upgrade and revives the higher education system to defeat these difficulties to furnish a better quality higher education system with equity, consideration, and better access. The policy imagines a holistic development of the people to accomplish a “more vibrant, socially engaged, cooperative community and a happier, cohesive, cultured, productive, innovative, progressive, and prosperous nation.”[4] Prime Minister Narendra Modi expressed that the new education policy will transform millions of lives by making India a knowledge hub in an era where learning, research, and innovation holds significance.[5]The NEP 2020, which proposes far-reaching developments, has caused quite the buzz since its presentation. The policy is supposed to address seven key issues concerning to education sector namely easy access for the students, ease of participation, quality of courses offered, equity, system efficiency, governance and management, research and development facilities, and financial commitment to education development.[6] But does NEP 2020 really fulfil these criteria?

Hits of the policy

The new policy puts forward a single regulator for higher education institutions, multiple entry and exit alternatives in degree courses, discontinuation of MPhil programs, low stakes board exams, and common entrance exams for universities.[7] It additionally intends to universalize access to school education at all levels, pre-primary to secondary level with a 100 percent Gross Enrollment Ratio (GER) in school education by 2030 and supply foundational literacy and numeracy for all.[8]The school curriculum structure, which is currently 10+2, will be supplanted with a “5+3+3+4” structure; accordingly ensuring the inclusion of children of all ages (3-18 years) within the ambit of formal schooling in a huge move from the 1986 approach. This new policy likewise seeks to ensure that no student is at a disadvantage because they belong to a Socially and Economically Disadvantaged Group (SEDG) and for this motive, Gender Inclusion Fund and Special Education Zones will be established.It is likewise proposed in the policy that until at least grade 5, the medium of education should optionally be in the regional language, mother tongue or local language.[9] Sanskrit, an Indic language of the ancient Indian subcontinent will be “mainstreamed” in schools as one of the language options in the current three–language formula as well as in higher education.[10] Indian Sign Language (ISL) will also be standardized across the nation and a fresh curriculum will be developed for students with hearing impairment.[11]The new policy proposes a shift from an assessment that depends on the outcome of a program to an all year-round assessment structure. This warrants reduction of curricular content and rote learning and highlights the importance of conceptual learning, practical application of knowledge, experimentation, and critical thinking. The aim is for this era of Indian students to get a holistic model of learning, well equipped with cutting edge skills required to get in tune with the needs of the 21stcentury society.Moreover, rigid demarcation of streams or subjects will be removed. The students will now have the flexibility to choose from interests within arts and sciences, vocational and academic streams as well as curricular and extracurricular activities. Vocational education will start from grade 6 and will incorporate ‘Bag less days’ or internships.[12]This will give a fresh perspective to what is around them which will enable them to tap into their interests with grit and determination and inculcate sundry skills at an early age.Adding coding as a subject from grade 6 onward is another new plume in the new policy. In this inexorably technological era, coding may turn into the language of the future. Furthermore, being well equipped in this will guarantee no hindrances to innovation and creativity while promoting analytical and logical thinking. This new structure won’t simply be beneficial to school children but also will be “in tune with the best global practices for the advancement of the mental faculties of a child”.[13]

Misses of the policy

In India, education is a worthwhile field for politicians as it gives them political and ideological mileage for quite a long time. While crucial changes are required in the education sector, aspects such as widening the availability of scholarships, strengthening infrastructure for open and distance learning, online education and increasing the usage of technology are reflected in the new policy, it is also a political document which can be apprehended from remarks of political and ideological associations.The policy’s reasons for concern are being bantered on all over social media with “#RejectNEP2020” trending on Twitter. As indicated by the Indian constitution, regulations of several sectors of society are outlined by three different lists – the Union list, the State list, and Concurrent list. When laws are to be made with respect to any of the matters enumerated in the concurrent list, it is first set up as a draft for a threshold period. This threshold period is to stimulate suggestions and discourse from the states or eminent personalities. Education is a subject mentioned in the concurrent list. However, the NEP 2020 Bill was passed in the parliament without taking the states into confidence and thereby violating the above code of conduct.[14]Could this be a drive to substitute a generally broken system of education with a centralized, communalized and commercialized system of education?The English language is not just a fundamental incentive for worldwide outreach; however, it is additionally basic in associating and communicating with people from different states within India. Career building, outsourcing technical support and skills are dominated by western conglomerates where English has extreme significance. English will only be offered from the secondary level in this new scheme.[15]Discontinuing English as the main medium might make fluency in English dependent on whether you can bear the cost of private tutors. In this manner, the lower caste population will be at disadvantage. Children from families who cannot afford to polish their child’s English competence will miss out on opportunities and students from the middle and elite classes will enjoy the benefits of English medium and continue to have an edge over students from government schools. Mainstreaming Sanskrit in India would be synonymous to the west mainstreaming Latin. Biblical Latin is a well-known dead language[16], similarly, only about 1% of the Indian population speak Sanskrit today.[17]Mainstreaming this ancient language would only be seen as a retrogressive step. At the time of the 2001 census on bilingualism and trilingualism in India, the number of English speakers in India was at 125 million and this number should have expanded since then.[18] The English language plays a significant role in giving India an edge over a majority of South-East Asia. Even the Chinese government, who as of not long ago only advanced and promoted the Chinese medium, is bringing in changes and introducing the English language in their education system.[19]Under this new policy, private and self-governed colleges will gain more autonomy.[20]Corporatism will follow when these colleges issue certifications unchecked. This slow-burn privatisation will, nevertheless, have a prompt and detrimental effect on student fees, the ratio of student–teacher, the nature of management and decision-making, and the content and quality of new courses and degree programmes that these institutions will offer. Organizations and institutions when vested with educational structure and financial autonomy will be empowered to offer additional courses and departments. However, without subsidies from government bodies, institutions will naturally rely on the students. The tuition fee will considerably increase, not only for students in that specific department, but for all the students attending that institution. This combined with another component offered by the NEP, i.e., multiple exit options at universities will escalate the dropout rates. Under the ‘multiple exit and entry option’, if a student chooses to leave mid-course, he/she will get fitting certification for credits procured until that point which will be digitally stored in an Academic Bank of Credits (ABC).[21] A ‘vocational certificate’, an ‘advanced diploma’, a ‘Bachelor’s degree’ and ‘Bachelor’s Degree with Research’ respectively will be awarded for each year of a four-year course. With financial autonomy resulting in financial burden on students and availability of certification each year, will give rise to dropout rates. This makes a huge discrepancy between financially capable and debilitated students. Students with good financial background will gain higher chances for studies and be able to acquire better opportunities. This would effect to attenuation of the Right to Education Act.A centralized system of education will amount to a stepping stone to social alienation and attenuation of the Right to Education Act. The government expressed that the policy is proposed to improve the quality and autonomy of higher education, notwithstanding, in a totally reverse move, it is knocking down the University Grants Commission (UGC) which was a core structural and regulatory body for higher education.[22] This will only expedite the commodification and centralization of education, which is risky. Earlier, the Atal Bihari Vajpayee Government had also tried to bring in similar reforms[23] but was met with strong opposition. The present education reforms have survived only because it was passed through the backdoor without the assent of the parliament.The government has launched vocational and polytechnic education for school students under the title ‘Reimagining vocational education’through this new policy, which directs to remove the hard disjunction between academic and vocational streams. Vocational subjects will be set in motion as early as grade 6, inclusive of internship opportunities from grades 6 to 12. This still takes no notice of the importance of ensuring basic mainstream education to all students till at least grade 10. Students opting for such courses will certainly not have a privileged background. Children who are from economically backward background and belong to lower castes who struggle in English, coding, etc. would end up taking predominantly vocational groups. Introducing this at an early age will manifest a barricade for first-generation learners and those from disadvantaged backgrounds to access higher education.[24]

Conclusion

While NEP 2020 focuses on some truly necessary positive changes, the backdoor passing of the bill and the chance of enhancing existing separation points in Indian culture should be looked into.The policy will apparently build the economic gap in a nation that is already partitioned by religion, caste, gender, and wealth. It makes it almost outlandish for impeded classes to scale the social stepping stool.The NEP evidently imagines decolonizing young Indian mind; nonetheless, in reality, could that mean the saffronisation of education? Recently critical topics for students, for example, democratic rights, challenges to democracy, citizenship, food security, gender, religion, caste, and secularism were dropped from the syllabus. Are these moves venturing stones to accomplish saffronisation? In this situation holistic, interdisciplinary, multidisciplinary, overall learning might be a front to cover all the above viewpoints. It will take a very long time before the policy goes into going all out and only at that time will these complexities become apparent. The technique of implementation will decide its victories and disappointments. The imperfections in this policy should be tended to with deliberation through a legitimate code of conduct to diminish the current deficiencies.

[1] German born physicist.
[2] ‘Destination Guides, Study in India’ (Top Universities), available at: https://www.topuniversities.com/where-to-study/asia/india/guide#:~:text=India’s%20higher%20education%20system%20was,Bangalore%20and%20the%20prestigious%20Indian
[3]Ibid.
[4] ‘National Education Policy, 2020’,Government of India pg. 33, para 9.1.3, available at: https://www.mhrd.gov.in/sites/upload_files/mhrd/files/NEP_Final_English_0.pdf (Visited on Dec 8, 2020).
[5] “New education policy will make India a knowledge hub, says PM Modi”, Times of India, Jul. 30, 2020.
[6] Padmapriya Govindarajan, “India’s New Education Policy: What Are The Priorities?”, The Diplomat, Jul. 29, 2016.
[7] “NEP: Here’s all you need to know about India’s new Education Policy”, India TV, Jul. 29, 2020, https://www.indiatvnews.com/education/news-new-education-policy-unveiled-all-you-should-know-638044
[8] Vicky Nanjappa, “Union Cabinet approves new education policy: What is NEP 2020”, OneIndia, Jul. 29, 2020, https://www.oneindia.com/india/union-cabinet-approves-new-education-policy-what-is-nep-2020-3126712.htmluh
[9] Ritika Chopra, “Explained: What’s new in India’s National Education Policy?”, The Indian Express, Dec. 9, 2020.
[10] Amandeep Shukla, “New Education Policy 2020: Focus on Sanskrit, Indian languages in NEP; Institute of Translation to be set up”, Hindustan Times, Jul. 29, 2020.
[11] Ambika Pandit, “Sign language will be standardized across India”, Times Of India, Jul. 30, 2020.
[12] Anurag Gupta & Rajeev Tiwari, “New Education Policy 2020: The change of perception in the Indian Education System from the schooling level”, Financial Express, Aug, 1, 2020.
[13] “National Education Policy 2020 will transform India into vibrant knowledge hub: PM Narendra Modi”, Times Now Digital, Jul. 29, 2020, https://www.timesnownews.com/india/article/national-education-policy-2020-will-transform-india-into-vibrant-knowledge-hub-pm-narendra-modi/629117
[14] Press Trust of India, “NEP Not Passed In Parliament, States Not Taken Into Confidence: Bengal Minister”, NDTV Education, Aug. 1, 2020, https://www.ndtv.com/education/nep-not-passed-in-parliament-states-not-taken-confidence-bengal-minister
[15] Jahnavi Reddy, “Mother tongue vs English: NEP’s recommendation on medium of instruction revives debate”, The News Minute, Aug. 1, 2020, https://www.thenewsminute.com/article/mother-tongue-vs-english-nep-s-recommendation-medium-instruction-revives-debate-129841
[16] MadelineWahl, “If Latin Is a “Dead” Language, Why Is It Still Taught in Schools?”, Reader’s Digest, Apr. 5, 2020, https://www.rd.com/article/latin-dead-language-why-taught-schools/
[17] Sarah-Claire Jordan, “Sanskrit: Three Reasons It Is Important”, Alpha Omega Translations, Feb. 2, 2016, https://alphaomegatranslations.com/foreign-language/sanskrit-three-reasons-it-is-important/
[18] “Indiaspeak: English is our 2nd language”, Times of India, Mar. 14, 2010.
[19] Grace Yue Qi, “The importance of English in primary school education in China: perceptions of students”, Multilingual Education, Jan. 26, 2016, https://multilingualeducation.springeropen.com/articles/10.1186/s13616-016-0026-0
[20] “Autonomy to colleges good, but will require monitoring of standards: Educationists on NEP”, Times of India, Aug. 2, 2020.
[21] Roshini Muthukumar, “NEP 2020 Makes College Degrees ‘Flexible’: How Multiple Exit Options Will Work”, Jul. 30, 2020, https://www.thebetterindia.com/234189/national-education-policy-pdf-new-flexible-undergrad-courses-multiple-entry-exit-degree-certificate-ros174/
[22] “Bye Bye UGC, AICTE, hello HECI! The single regulator in NEP which will revolutionise education”, Times Now Digital, Jul. 30, 2020, https://www.timesnownews.com/education/article/bye-bye-ugc-aicte-hello-heci-the-single-regulator-in-nep-which-will-revolutionise-education/629554
[23] “Meet J.S. Rajput, whose books are launched by Modi & Bhagwat”, Outlook, Feb. 17, 2020, https://www.outlookindia.com/newsscroll/meet-js-rajput-whose-books-are-launched-by-modi-amp-bhagwat/1736512
[24] Pon Vasanth B.A., “Vocational courses may distract poor students”, The Hindu, Jul. 31, 2020.

Animal Cruelty Laws in India: An Overview

Introduction:

     Animals are extremely important to humans. They are vital for the ecosystem. India, being a country where animals are worshipped and considered as an integral part of the universe, has an alarming rate of animal cruelty cases coming up. Subjecting animals to fight or using them to test in laboratories or assaulting street animals are a few acts of animal cruelty. Now-a-days, heinous acts of cruelty have been coming in the limelight that has shook the very core of our society.[i]

     Animal cruelty can be defined as the crime of inflicting physical pain, suffering or death on an animal, usually a tame one, beyond necessity or normal discipline. It can include neglect, withholding of food and water, death or being put in imminent danger of death. Indian laws are not as often debated upon when it comes to animals as compared to the other legal topics in the country. There are several laws enacted for the safety, protection and punishment thereof for animal cruelty.

The Constitution of India:

     The Constitution of India directs under the Directive Principles of State Policy (DPSP) to protect and improve the environment and safeguard wildlife and forests[ii]. It is also the Fundamental Duty of the citizens to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures[iii]. As a Fundamental Right, freedom to practice profession, occupation, trade and business[iv] like caring of animals as a profession is also safeguarded by the Constitution. In 2014, the Hon’ble Supreme Court while deciding on the Jallikattu matter, extended the scope of Article 21 of the Indian Constitution which gives the Fundamental Right to Life to animals as well[v]. The Uttar Pradesh State Government approved the draft of the Uttar Pradesh Cabinet Cow Slaughter Prevention (Amendment) Ordinance, 2020, that protect cows and prevent their slaughter, it shall provide maximum rigorous imprisonment of 10 years and a fine up to Rs 5 Lakhs[vi].

Prevention of Cruelty to Animals Act, 1960:

     This act came into force 26th December,1960 repealing the previous 1890 Act. It legislates the duty we have as humans towards animals. This act significantly deals with matters relating to cruelty against animals. It provides for the establishment of Animal Welfare Board of India.[vii] This board acts as an advisory to the Central Government on the drafting of rules under the Act to prevent animal cruelty generally and particularly when they are being transported from one place to another or when they are used as performing animals or when they are kept captive or confined. The board is to provide financial and other assistance to Animal Welfare Organizations that function in any local area and encourage forming of Animal Welfare Organizations in any local area to work under the general supervision and guidance of the Board.[viii]

     The act defines “Animal” as “any living creature other than a human being”[ix] It is the duty of every person having the care or charge of any animal to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering.[x]

     Chapter III of this act plays a crucial part of the act. Sections 11 to 13[xi] gives details about the cruel and brutal acts prohibited by the law. Section 11 gives provisions regarding treating animals with cruelty and Section 12 states the penalty for practicing phooka or doom dev. Section 13 contains provisions regarding destruction of suffering animals.

     The Act also states that unlawful experiments done on animals including operations for the purpose of advancement or new discoveries of physiological knowledge or any other knowledge which will be useful for saving lives or prolong life is prohibited.[xii] It implies certain restrictions in training and performing of the animals in various events.[xiii] The act allows inclusion of only those animals which are registered with the Central government.[xiv] The act mentions that killing an animal in any manner prescribed by the religion is accepted, mainly because of many religious sentiments attached to it.[xv]

     There have been some improvements in the penalty structure since the act was passed in the year 1960. After the constant Supreme court directions, the current government has amended the animal laws by increasing the fine from Rs.50 to Rs.6000. The act is a well written Act according to the time but it needs to be Amended rightly and justly.

Wildlife Protection Act, 1972:

     The Wildlife Protection Act, 1972 was enacted to safeguard the flora and fauna of the country and to ensure environmental and ecological security. This Act provides for the protection of a listed species of flora and fauna and also for the establishment of a network of ecologically-important protected areas in the country. The Act attempts to classify certain acts as illegal as they are inhumane to animals.

1. Teasing, molesting, injuring, feeding or causing disturbance to any animal by noise or otherwise is prohibited and a punishable offence.[xvi] 
2. The act makes it unlawful to injure, destroy wild birds or reptiles, damaging their eggs or disturbing their eggs or nests and deems it as a punishable offence.[xvii]

Indian Penal Code, 1860:

     The Indian Penal Code, 1860 which is the official criminal code of India, deems animal cruelty as an offence. It states that killing, poisoning, maiming or rendering useless;

1. any animal or animals of the value of ten rupees or upwards, are punishable with imprisonment up to two years, or with fine, or with both.[xviii]
2. any elephant, camel, horse, mule, buffalo, bull, cow or ox, or any other animal of the value of fifty rupees or upwards, by punishing with imprisonment of either for a term which may extend to five years, or fine, or both.[xix]

It is a crime to threaten, abuse or harass people who feed animals. The Code provides that, ‘anyone who threatens or intimidates any person taking care of dogs is liable for criminal intimidation and can be arrested without a warrant’[xx]. Further, ‘Committing the offence of criminal intimidation shall attract the punishment up to two years, or with fine, or with both’[xxi]. The Delhi Police act, 1968, under sections 73 to 79, 99 provides special powers to police to take action when an animal offence has been committed.

Rules for Strays:

1. Under Stray Dog Management Rules 2001, it is illegal for an individual, RWA or estate management to remove or relocate dogs. The dogs have to be sterilized and vaccinated and returned to the same area and they cannot be removed by the municipality either.
2. Ministry of Public Grievances notification and a similar notification by Animal Welfare Board of India to provide immunity to animal feeders and restrict government employees or bodies such as Societies from harassing people who feed or help animals.
3. The Animal Birth Control (Dog) Rules, 2001, enacted under PCA, provide for sterilization and vaccination as a means of stabilizing/ reducing stray dog population and eliminating the risk of rabies; and prohibits relocation of stray dogs i.e. forcing them out of one area, into another. An order passed by Supreme Court in this regard, also prohibits removal, dislocation or killing of all dogs and gave a similar stay order Use of animals for experimentation and research in the cosmetic industry amounts to grave cruelty against removal culling or dislocation of a dog anywhere in India.[xxii]

The Judicial Approach:

    The very famous case of Jallikattu case (Animal Welfare Board of India vs. A Nagaraja and Ors., (2014) 7 SCC 547), when the Supreme Court banned the practice of Jallikattu (a bull taming sport) in 2014, it called attention to various sections of the PCA Act, 1960, which addresses suffering of animals beyond reasonable acts. Sections 3 and 11 of the Act were implied and the Court declared that all animal fights incited by humans are illegal, even those carried out under the name of tradition and culture. The Court also listed recommendations, including penalties and punishments under PCA Act, so that it functions effectively as a deterrent in animal cruelty cases. The Supreme Court upheld the right of animals to live with honor and dignity. Later the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act of 2017 and Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules of 2017 permitted the popular sport again as a tradition.

     In Nair, N.R. and Ors. Vs. Union of India and Ors., (2001) 3 SCR 353, a notification by the Ministry of Environment and Forests stating that bears, monkeys, tigers, panthers and lions shall not be exhibited or trained as performing animal was challenged before the Kerala High Court and the court upheld the notification. The same was then challenged in the Supreme Court. The court dismissed the petitioner’s argument of the right to carry out any trade or business under Article 19(g) of the Indian Constitution is violated. The court declared that animals suffer cruelty as they are abused and caged to make them perform, and therefore, this contradicts the PCA Act, 1960.

     In the case State of U.P Vs. Mustakeem and Ors (2002), SC 283/287, the custody of goats was returned to the owner by the U.P High Court while the matter was under litigation. In a case, goats were transported for slaughter in a cruel manner (they were tightly bound to each other, which was against the provisions of the Prevention of Cruelty to Animals Act, 1960). On appeal made to the Supreme Court, the court declared that the animals were supposed to be confiscated from the owner and housed in a gaushala, under the care of the state government who was given their charge for the duration of the case. With this ruling, the Court made it amply clear that custody of animals, in cases of cruelty.

Analysis:

     As it was rightly held by the Supreme Court of India that animals too are protected under the Constitution of India as they too have their right to life and to live without unnecessary pain and with dignity. Although there are adequate animal protection laws in the state, with a particular focus on protecting cows for religious purposes, the legislation falls short of international standards in many areas, such as the killing of healthy stray dogs, the legalization on husbandry practices such as dehorning and nose roping and exemptions for religious slaughter. As a result, India was given a “C” under the Animal Protection Index (API) 2020, and is also a moderate performer under the Sanctioning Cruelty category[xxiii].

     Animal rights activist Ms. Gauri Maulekhi wrote a letter to the secretary of the Environment Ministry Mr. C.K. Mishra on September 2016, urging the government to amend the laws. A study conducted by an organization, Humane society in U.S. found that “Intentional cruelty towards animals is strongly related to other crimes including violence against people. The Survey suggests that men under 30 predominantly intended to abuse animals. The most common victims of animal cruelty are dogs, cats, horses, cattle and livestock. Cruelty to animals is directly related to domestic violence. The majority number of domestic violence victims reported that their abusers also target animals.”[xxiv] Hence with this study, it is clear that India needs to implement stricter laws to not only serve as a deterrent but also provides for system that protects animals as well as the society on the whole.

Conclusion:

     Gandhi once said, ‘The greatness of a nation and its moral progress can be judged by the way its animals are treated’. This being not only a thought but a reality in countries like the Switzerland, Germany and Austria which are considered to be the world’s safest country for animals who have well established laws for animals. Cruelty towards animals is prevalent cross all borders, be it social or economic background, urban or rural, literate or illiterate, all societies have cases relating to animal cruelty. The all-time prevailing conflict whether the laws of the state are inadequate or is it the lack implementation are not the only hurdles to prevent animal cruelty, the change needs to come from within. Awareness has to be created among the people. India, having quite a number of provisions as mentioned above still needs to update the legislated laws and make them stricter. It is also of the highest priority to have an effective implementation along with amending the legislation for preventing cruelty to animals. The lawmakers can see to it that they are in accordance with the current scenario and not burdening for the community.

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[i] Meenu Kataria, 15 Instances Of Animal Cruelty In India That Make Us Wonder If We’re Even Human Anymore, ScoopWhoop Media Pvt. Ltd., (July. 30, 2018, 16:55 PM), https://www.scoopwhoop.com/animal-cruelty-in-india/

[ii] INDIA CONST. art. 48A.

[iii] INDIA CONST. art. 51A, cl. g

[iv] INDIA CONST. art. 19 (1). cl. g

[v] Animal Welfare Board of India vs. A. Nagaraj and Ors., (2014) 7 SCC 547

[vi] Arushi Singh, Humans losing humanity: Rising instances of animal cruelty in India, land where they are worshipped, The New Indian Express, (June. 19, 2020, 8:39 AM), https://www.newindianexpress.com/nation/2020/jun/19/humans-losing-humanity-rising-instances-of-animal-cruelty-in-india-land-where-they-are-worshipped-2158506.html

[vii] PREVENTION OF CRUELTY TO ANIMALS ACT, 1960; §. 4

[viii] Roles/ Functions, Animal Welfare Board of India, http://www.awbi.in/roles_functions.html

[ix] PREVENTION OF CRUELTY TO ANIMALS ACT, 1960; §. 2(a)

[x] PREVENTION OF CRUELTY TO ANIMALS ACT, 1960; §. 3

[xi] Radha Mehta, Animal Cruelty and Laws for Protection of Animal Rights, Legal Service India, http://www.legalserviceindia.com/legal/article-3565-animal-cruelty-and-laws-for-protection-of-animal-rights.html

[xii] PREVENTION OF CRUELTY TO ANIMALS ACT, 1960; §. 14

[xiii] PREVENTION OF CRUELTY TO ANIMALS ACT, 1960; §. 22

[xiv] PREVENTION OF CRUELTY TO ANIMALS ACT, 1960; §. 23

[xv] PREVENTION OF CRUELTY TO ANIMALS ACT, 1960; §. 28

[xvi] WILDLIFE PROTECTION ACT, 1972; §. 38(j)

[xvii] WILDLIFE PROTECTION ACT, 1972; §. 16(c)

[xviii] Indian Penal Code, 1860; §. 428

[xix] Indian Penal Code, 1860; §. 429

[xx] Indian Penal Code, 1860; §. 503

[xxi] Indian Penal Code, 1860; §. 506

[xxii] Animal Welfare Board of India v. People for Elimination of Stray Troubles & Ors., (2016) 13 SCC 492

[xxiii] AC Team, India Graded C No Other Country made up to A Grade: Animal Protection Index 2020, Affairs Cloud, March 13, 2020, https://affairscloud.com/india-gained-c-grade-no-country-made-up-to-a-grade-animal-protection-index-2020/

[xxiv] Hayden Fowler, Animal cruelty facts and stats, The Humane Society of the United States, https://www.humanesociety.org/resources/animal-cruelty-facts-and-stats