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This article is written by APURVA, a student of the Fairfield Institute of Management and Technology, GGSIPU. This article provides an outline of “The Principle of Distinction beneath International Humanitarian Law”.

ABSTRACT

During a war, civilians are the most innocent ones. But ‘are they still looked upon as the same and safeguarded during a war?’ Let us emphasize on the contribution of Henry Dunant. He witnessed the Battle of Solferino and was inspired to create the International Committee of Red Cross (ICRC) and instigated the tradition of Geneva Convention. A part of International Law was introduced and that is International Humanitarian Law (IHL) or jus in bello. It works on its fundamental principles and ‘Principle of Distinction’ is one of them. This research article deals with the same.

Keywords: War, Civilians, Geneva Convention, ICRC, International Law, International humanitarian Law, Principle of Distinction

International Humanitarian Law or jus in belloInternational Humanitarian Law or jus in bello

It was initiated back in 1949 and the majority of the sources reside in the four Geneva Conventions. It was introduced as a part of international law. It applies to armed conflicts and imposes limits on the destruction and suffering caused by them. It distinguishes between International and non-International wars, i.e., whether the war is happening within a nation or it is happening between different nations and applies only to International Wars. Nearly every country agreed to be bound by IHL. It aims to protect and restrict.

It protects civilians, civilian objects, medical and religious military personnel who are not taking part in the fighting or those who are no longer taking part in the fighting, like wounded, shipwrecked and sick combatants and prisoners of wars who ceased to take part.

It restricts the means and methods of warfare that causes any superfluous injury or unnecessary suffering, and any severe or long-term environmental damage and also restricts all means and methods of warfare which fails to discriminate between fighters and civilians.

International Humanitarian Law (IHL) or jus in bello works on the mechanism of its core fundamental principles. They are:

Principle of Distinction
Prohibition of attacks against those hors de combat
Prohibition on the infliction of unnecessary suffering
Principle of proportionality
Notion of Necessity
Principle of Humanity

There are some other agreements as well that prohibits certain weapons and military tactics protecting certain people and goods. They are:

1954- The Convention for the Protection of Cultural Property in the event of armed conflicts and its two protocols.
1972- The Biological Weapons Convention
1980- The Conventional Weapons Convention and its five protocols.
1993- The Chemical Weapons Convention
1997- The Ottawa Convention on anti-personnel mines.
2000- The Optional Protocol to the Convention on the Rights of the Child on the involvement of children is armed conflict.

The Principle of Distinction

Principle of Distinction is a fundamental principle of International Humanitarian Law. This directly targets the fighters. This principle is basically a distinction between civilians and combatants. It is roofed under Protocol I which is an ancillary to the Geneva Conventions. Chapter-II, Article 50 is specified for the explanation of civilians and civilian population, Article 51 describes the protection needed for civilians, and Chapter-III targets the civilian objects. Also, Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court also prohibits attacks against civilians.

The Chief Prosecutor at the International Criminal Court, Luis Moreno-Ocampo investigated allegations of war crimes during the Invasion of Iraq 2003. He issues an open letter comprising his discoveries in a section. The section was titled “Allegation concerning War Crimes”, and he explained the use of Principle of Distinction:

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).

Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are “clearly” excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was “clearly excessive” in relation to (b).”

— Luis Moreno-Ocampo.

CONCLUSION

The principle of distinction has been a pillar of jus in bello or International Humanitarian Law. In Michael Walzer’s seminal book Just and Unjust Wars, in its several editions as well as in his recentArguing about War, the principle of distinction is elucidated, interpreted, defended, and developed. The balancing between Humanity and Military necessity is seen in the foundational International Humanitarian Law’s Principle of Distinction. An attack cannot be launched if it is anticipated to cause loss of civilian lives, or injury to them, or damage to civilian objects. Parties to the armed conflicts need to distinguish between civilians and militants all the time or any indiscriminate attack may result in violation of jus in bello and will be considered as a grave breach. But, IHL applies just to International Conflicts, and not to non-International conflicts, so it recognises first.

Hence, by these texts we tend to learn that the principle of distinction could be a bedrock of International Humanitarian Law, the law that is applicable on the bottom of humanitarian reasons to limit the result of armed conflict. Henry has gifted the civilians a security from wars. Therefore, it safeguards civilians and civilian objects during a war. We tend to additionally learn that the violation of the principle could be a grave breach.

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This article discusses the evolution of trade unionism in India and the challenges faced by these unions.

INTRODUCTION

The labour movement was the primary power that converted misery and hopelessness into hope and development. Out of its courageous battles, economic and social transformation gave birth to unemployment insurance, old-age pensions, government aid for the needy and, above all, fresh wage levels that intended not mere existence but a bearable life. The leaders of the industry did not take the lead of this transformation; they avoided it until they were conquered. When in the mid-thirties the wave of union organization crested over the country, it carried to safeguard the whole society.

Trade Unions surfaced because of the Industrial Revolution which can be traced back to the 18th century when the Industrial Revolution started in Britain. The Industrial Revolution is described by the aligning up of large-scale factories, fresh lines of mass production, mechanization, and quick economic expansion. It is normal that when many factories are set up, there is a requirement for labour. Therefore, the need for unskilled and skilled labour increased. At the time, the industries were not appropriately organized, and the employers focused on boosting profits which headed to exploitation of the labour class who were uneducated and poor. We can say that it guided to the creation of two classes in the industrial sector:

Employer Class – This included those who were profit-oriented and it did not really concern them about the working situations of the labour.
Labour Class – It includes those who were illiterate and had no knowledge or understanding of their rights and were also in need of income.

Primarily, the labourers thought that their requirement for money is larger and that their employers can simply switch them if they objected to the unfair terms and wages imposed by their employers. But gradually the labour class understood that if one specific labour protests for the unfair terms of his employee, it will not have any effect on the industrial organization but if workers form themselves into a group or “Union” then more influence will be wielded on their employer lords. Creating labourers into Unions also provided them the power to collectively bargain. Hence, this idea led to the establishment of Trade Unions.

Trade Unionism in India

The Britishers started inhabiting the Indian sub-continent in the 1600s and began to set up factories and mills in India exactly similar to the Industrial Revolution in Britain. The major rationale why the British found it appropriate to start development in India was that India had a profusion of inexpensive and poor labour along with organic resources and land for establishing the industries.

The cotton mill was formed in 1851 in Bombay and the first ever jute mill was created in 1855 in Bengal. Exactly like Britain, the circumstances of labour in India were harsher. The unfair and pitiful working conditions such as working hours, wages and sacking policies made the laborers join up hands and come together and protest. One of the first turmoil among labourers can be seen back to the year 1877 when due to unexpected decrease in wages the labourers of Empress Mill, Nagpur prepared a strike.

Since such unionism was a modern trend there was no law to enact and control these new labour unions. With increasing dissatisfaction and unrest amongst the labour class and constant dispute with the employer class, few measures were taken to investigate and solve the situation.

‘Factories Commissions and Factories legislations’ triggered no progress in the working circumstances of the labour class in India. In 1885 all the laborers of India had also signed a document with their employers to give them basic modicum working environments. Still, the situation did not get better. The preliminary attempt by labourers was humanistic in nature under the backdrop of the setting up of Indian National Congress and non-violence movement instigated by Mahatma Gandhi.

Post World War- I Period

When World War I broke out, a rapid change of all resources to accommodate war requirements and the employers were reliant on the labourers. It then the labourers understood that the employers want them as much as they want their employers. This gave them a “bargaining position”. Trade unions began to get established in India, but the procedure was gradual due to the direction of socialist reformers. But many Trade unions began to get prepared. The first main trade union which was formed was the ‘Madras Labour Union in 1918’ under the presidency of Mr B.P. Wadia. This was followed by the creation of the ‘All-India Trade Union Congress in 1920’. With the creation of Trade Unions, the workers started to arrange strikes and protests to affirm their demands such as reducing working hours, minimum essential wages.

The Buckingham Mill Case

The creation of Trade Unions and the association of strikes and protests by the workers were not accepted by the employers. To put an end to the actions of the recently established trade unions and beyond to bar creation of Trade Unions the employers sought after legal recourse. One of the highly significant cases filed was against Mr B.P. Wadia who was the “President of the Madras Labour Union” that he colluded with laborers and went on walkout and was restricting trade. The Employers asked for an injunction to stop the protests and actions performed by the Trade Union.

Contentions raised by the Employers

The strike is unlawful and illegal because it sums up to a restriction of trade under Section 27 – Indian Contract Act.
The strike created a criminal conspiracy under Section 120A – Indian Penal Code 1860.
The strike also created a civil conspiracy under the civil law.

The Hon’ble Madras High Court based on these contentions granted the injunction to stay the strike on the following grounds:

There was a legitimate reason for action in favour of the employers.
There was a violation of law by the workers.
There were losses endured by the employers because of the actions of the trade unions.

It is to be mentioned here that up until this time there was no statute which gave legitimate legal force or backing to the trade unions. The Order of the Madras High Court was moved to the truth that there was no law that permitted trade unionism in India. The expanding need to have pro-labour legislation which led to the passing of the Indian Trade Union Act 1926. The word “India” was afterwards dropped, and the legislation was finally named Trade Union Act, 1926. The Preamble of the “An Act to provide for the registration of Trade Unions and in certain respects to define the law relating to registered Trade Unions”.

Period Post 1947

One main gap with the 1926 Act was that however it offered for voluntary registration of Trade Unions, but it did not provide for necessary recognition of the Trade Unions by the employers and because it was not obligatory for the employers to identify the Trade Unions, clearly, they did not recognize them. This once again put a stop to the development of Trade unions. For example, when the members of Trade Unions or their lawyers went to talk with the employers, the employers just denied talking to them on the grounds that they do not acknowledge or recognise such Trade unions.

The Act was revised in 1947 which offered for compulsory recognition by the employers of the rep Unions. Though, the amended act has not come into force yet.

Trade Unionism in India from 1950-70

Independence of India was advantageous to Trade Unions in India in a massive way as the forefathers embraced the principles of equality for all, justice, and freedom plus the freedom of expression. The Constitution of India also identified Freedom of Association as one of its Fundamental Rights. Planning was also implemented by India through Five-year plans. The emphasis of the first 2 five-year plans was on the industry and agriculture sector which managed to set up huge public sector industries. With the setting up of these industries, the requirement for labour increased and trade unionism became effective and active. However, due to a deficiency in organization and appropriate leadership there were inter-union conflicts which were combined with political interference.

Trade Unionism in India from 1970-1990

The mid 1960s, the economic condition of India had begun to worsen primarily because of famines and wars observed by India in its previous years. The rate of inflation increased, and rates of food and grains soared. Industries were also disturbed by the structural adjustments in the economy. There were more rallies, strikes and lockouts planned by the trade unions during this period of time. Nationwide Emergency was enforced during PM Indira Gandhi’s regime from the year 1975 to 1977 halted all the Fundamental Rights with the right to form associations and right to strike.

The government, Post-Emergency, had tried to bring into power an ‘industrial relations bill’ which intended to ban protests and lockouts in important industries and services. Though, the bill was met with intense opposition from various participants, particularly the trade unions. As a result of which, the bill was not passed. The trade unions had attained an overbearing position by this time. They had achieved their bargaining powers and had turned out to be more coordinated and were able to meet their obligations by discussions and strikes.

Trade Unionism in India from 1990-1999

In 1991 the Government agreed to start the economy by introducing the “New Economic Policy” (NEP). With difficulties of liberalization, privatization and globalization rifts and differences were also noticed in Trade Unions in India as the Government’s labour-friendly attitude shifted to be more investor-friendly. Due to globalization, there was huge slashing of the workforce and trade unions were struggling fiercely to save workers their jobs. With the introduction of liberalization in 1991, the industrial relations strategy began to shift. Now, the policy was sloping towards employers. Employers decided towards workforce decline, launched policies of volunteer retirement schemes and flexibility in the work environment also improved. Hence, globalization has brought in huge changes in industrial relations policy. The major attributes of trade unionism after the globalization turn out to be the small extent of membership, absence of sufficient finance, non-implementation of welfare schemes, influence of political parties and other beyond interfering in the actions of trade unions.

Trade Unionism in 21st Century

With problems faced by “New Economic Policy” (NEP), the trade unions had to deal with a torrent of difficulties, but the silvery lining over here is the increase in the amount of trade unions, improved organization, and operation. As per the analytics of the Labour Bureau, there are around 11,556 listed labour unions in India with average membership at 1283 members per trade union. In 2001 the Act underwent the amendment. Main add-ons and amendments to the act are as following:

Amendment to Section 4: The provision to Section 4, which was added after the 2001 amendment, now stipulates a minimum number of employees who should be an element of the Trade Union at the time of creating the request for registration. The provision reads as, “Provided that no Trade Union of workmen shall be registered unless at least ten per cent of one hundred of the workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union on the date of making of an application for registration. Provided further that no Trade Union of workmen shall be registered unless it has on the date of making application not less than seven persons as its members, who are workmen engaged or employed in the establishment or industry with which it is connected.”

Insertion of Section 9A: The minimum membership prerequisite was formed by introducing Section 9A to the Act. The new Section 9A reads as follows, “The minimum requirement about membership of a Trade Union. A registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members.”

Proposed Amendments

The Ministry of Labour and Employment has been considering on introducing a proviso for establishing trade unions at both central and state level. Consideration to encompass such an amendment has come from in the challenge of several interpretations by trade unions. Consequently, on 20th July 2018, the Ministry has issued a statement in the official gazette recommending the amendment and has welcomed remarks from the stakeholders and members on the draft amendment. If it is passed, a new Section 28A and Sub-section (2A) to Section 29 (2) will be introduced which will give for required recognition of Trade unions at both the federal levels.

CONCLUSION

Trade Unionism in India has surely come a prolonged way. Primarily from having no lawful backing to illegalising “strikes” by the trade unions to conceding them registering procedure and mandatory recognition and now having full-feathered legislations and special courts, trade unions in India have achieved an amazing status or standing in the labour movement. But there are still a small number of obstacles that the trade unions face still such as shortage of financial resources and support from the government. Therefore, there is still room for the expansion and development of Trade Unionism in India.

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This article is authored by Vishrut Gupta, a 1^st year law student from Lloyd Law College. This article throws light on the legality of abortion in India as well as the critiques of those laws.

“If a mother can kill her child – what is left for me to kill you and you to kill me – there is nothing between.”― Mother Teresa

Introduction to Abortion

The rapidly increasing rate of abortion across the globe has resulted in the formation of several laws and policies related to abortion. The conscious and intentional termination of pregnancy with the help of medical sciences is known as abortion. So, if a mother is not willing to give birth to the child due to any reason, she can visit a hospital to stop her gestation, but within 28 weeks which is considered to be safe for abortion. The gestation period is the duration for which the woman is pregnant and the foetus is developing inside her womb. Usually, the woman gives birth after an interval of 38 to 42 weeks of pregnancy, which is approximately 9 months.

Human Rights and Abortion Grounds

In the international aspect, human rights allows a woman to choose if she wants to continue her pregnancy or not. Three laws primarily deal with human rights and childbirth, namely, The Right to Life, The Right to Health, The Right to Autonomy and Bodily Integrity. Apart from this, abortion has been categorised into the five main categories:

Prohibited altogether- The women are not at all allowed to abort the child even if her life is at risk. It is seen in 5% of cases.
To save women’s life- If the women’s life is at risk due to inability to give birth, abortions are allowed and seen in 22% of cases.
To save health- In 14% of cases, abortion is allowed to save the deteriorating health of the women.
Broad Social/Economical grounds- Sometimes, a woman is not financially stable to nurture a child, some social grounds are also there, in this case, abortion is also granted. 23% of cases are of this type.
On request– Abortion request is filed in the courts and the judge decides whether it should be granted or not by examining the facts and the future of the child. The majority of the cases of India come in this category but the gestational limits vary accordingly as per the laws of different countries.

Facts and Figures

The Lancet Global Health Report said, “A total of 15.6 million abortions was carried out in India in 2015.” A rapid growth in the ‘Maternal Mortality Rate’ was seen. (Maternal Mortality Rate is the rate at which women die during or within 42 weeks of abortion due to mismanagement or accidents while doing the abortion. One of the main reasons for the same is that a lot of fake and unauthorised clinics are running with fake doctors and unethical practices. Teens also get pregnant due to lack of sex education and being underage, they try to abort their foetus illegally at such clinics and end up with fatal situations. It was found in research that- “8% of the deaths of maternal mortality were due to unsafe abortions.”

Indian Legislations for Abortion

India had only one main law to cater for abortion, which was The Medical Termination of Pregnancy Act, 1971. Section 3 of the act allowed women to terminate their pregnancy within 20 weeks of getting pregnant including some of the provisions and exceptions. Later, in 2002, the word ‘lunatic’ mentioned in all the sections of the act, was replaced by ‘mentally ill’. We saw certain cases when the Supreme Court allowed the termination of pregnancy even after the 20th week. A 2017 case where a Kolkata girl was allowed to terminate her pregnancy even after the 20th week of gestation, due to the detection of Pulmonary Atresia in the foetus, shows that there are certain cases where this law was overlooked under certain exceptions for the greater good. The exceptions cover the cases of rape and life threats to women or her child after giving birth. The same thing happened in 2016 when a landmark judgement was given by the court in a rape case.

After several petitions were filed to increase the upper limits of the gestation period in rape cases, the government in 2014 finally made a draft to bring an amendment to this law. The major amendment features were-

An increment in the upper gestation time from 20 weeks to 24 weeks.
Decrease in the number of doctors (for advising the safeness and technicalities of abortion between 12th week and 24th week and even beyond that) from two to one.

Finally the Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in Lok Sabha on March 2, 2020, and passed on March 17, 2020. The bill added another 4 weeks in the upper limits of the abortion period under some provisions and establishments of state-level medical boards. The bill passed from the Rajya Sabha on March 16, 2021, and finally amended. Certain acts and punishment related to abortion are mentioned in the Indian Penal Code, 1860. Section 312-314 of the IPC deals with the punishment of the miscarriage- cause, permission and death due to miscarriage. Section 315 deals with the intended act to prevent the child from coming out and killing the child after birth. Section 316 covers the death of a child caused by the quick unborn, which amounts to culpable homicide.

Critiques of the MTP Act

As the Medical Termination of Pregnancy (Amendment) Bill, 2020 got passed; several criticisms and flaws in the amendment came to light. The major critique of the amendment bill is that the bill itself violates article 21 of the Constitution, i.e. Right to Life which covers the Right to Health as well. The health of the women gets deteriorated in the time she takes permission from the court for abortion, especially in rape cases where the victim suffers mental trauma as well. Another strong argument was that the child to be aborted also has his Right to Life which again violates Article 21 of the constitution. This is an irony in itself. The next critique said that it should be totally on the will of the mother, whether to keep or abort the child, there shouldn’t be a time limit for abortion if the medical practitioner allows it keeping in mind the safety of the mother. The bill does not talk about the inclusion of transgender, there isn’t a single word mentioned about the same. The Medical Board has to interfere in certain cases but those cases are missing, nowhere mentioned and the time limit of examination by the Medical Board to examine the possibility of abortion is also missing. The bill stands unanswerable to such questions which are the essential pillars and technicalities of the bill and thus cannot be ignored.

Conclusion

We should focus on the increasing maternal mortality rate. The government should set up committees to investigate unethical abortion clinics to avoid any further deaths due to a lack of medical knowledge. The loopholes of the laws are needed to be fixed soon so that it covers every crucial aspect which could save a mother’s life. We should keep in mind that our presence has been possible because of a mother and it has been rightly said- “Justice delayed is the Justice denied.”

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This article is written by K.Lasya Charitha pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses the meaning, constitutional validity and misuse of Section 498A of IPC.

INTRODUCTION

The issue of reforming women’s rights and family law has increasingly aroused controversy over politics and the rights of minorities. Indeed, persuasive or effective religious freedom cannot overlook the needs and sufferings of all minority and majority women. Due to the social customs and traditions that existed at the time, the lives of ordinary women in India have always been difficult and unfortunate.

Meaning of Section 498 and 498A of IPC

Section 498A is mentioned in chapter XXA of the Indian Penal Code which deals with cruelty by husband or relatives of the husband.

Section 498A: “Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, cruelty means—

any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or
harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”[i]

History

Article 498A of the IPC is an important supplement to India’s 1860 Criminal Law, which was promulgated in 1983 to protect women’s rights and empower women. According to Article 498A of the Indian Penal Code, extortion of any form of property by subjecting a woman to cruelty is punishable. On December 26, 1983, the Indian government passed the Criminal Law (Second Amendment) to amend the Indian Penal Code (IPC) of 1860 and added Chapter XX-A, Of Cruelty by husband or relatives of husband which includes Section 498(A).

This part is passed to resolve the threat of death from the dowry. This was implemented in the Criminal Law through the Criminal Law Reform Act of 1983 (Act No. 46 of 1983). According to the same law, Article 113-A has been added to the Indian Evidence Act to increase the presumption of abetment of suicide by married women.[ii] The main purpose of Section 498-A of the Indian Penal Code is to protect women who are harassed by their husbands or husband’s family members.

Constitutional Validity of Section 498A of IPC

In the case of Inder Raj Malik and others vs. Ms. Sumita Malik[iii], it was argued that this section is ultra vires Article 14 and Article 20 (2) of the Constitution. The Dowry Prohibition Act also applies to similar cases. Therefore, these two laws together constitute what is commonly referred to as double jeopardy. However, the Delhi High Court rejected this argument and ruled that the article will not create double jeopardy. Section 498-A is different from Section 4 of the Prohibition of Dowry Act because, in the latter, the simple request for the transfer of dowry is punishable and does not require cruel elements, while Section 498-A involves serious crimes and punishes the demand for the safety of valuable property or the woman or her relatives involved in the cruel treatment of her. Therefore, a person can be made liable for both the offenses punishable under section 4 of the Dowry Prohibition Act and section 498A.

This section gives the court extensive discretion in interpreting the words used in the law and imposing fines. This provision is not ultra vires. It doesn’t confer arbitrary powers on courts.

Justice Malimath Committee on Criminal Justice System Reforms, Ministry of Home Affairs, Government of India, pointed out in 2003 and recommended that the law be amended. The code can be suitably modified to make the offense under Section 498A of the Indian Penal Code, bailable and compoundable. These are just some observations of the nobles, which proves this point indisputably:

Women (not necessarily all women) can be more violent than men (not necessarily all men). Section 498A of the IPC aims to protect people’s lives and put approximately a dozen innocent people’s lives at risk. As a result, the provision is discriminatory and violates Article 14 of the Indian Constitution. Instead of restoring the balance, the disposal has exacerbated the imbalance. Therefore, there is a failure of guarantee of Article 21 of the Constitution of India that is right to life. Due to the reasons given above, this position is not only unbalanced but also ultra vires.

The Malimath Committee proposed changes to this section in 2003, although such changes were opposed by women’s groups and radical feminists. The Social Research Center of India issued a survey report that refuted the changes to Section 498A in which in the studied cases there were no convictions based only on section 498A.

On July 20, 2005, Arijit Pasayat and H. Sima, Judges of the Supreme Court of India, declared that Section 498A was constitutional. The purpose is to attack the source of dowry menace. It’s a shield, not an assassin’s weapon, it is intended to be used only as a shield.

Non-compliance with the law is the principled position it occupies, which is indispensable for the spirit of enacting the law i.e., Violence is not negotiable and unacceptable under any circumstances. In this regard, any amendment to Article 498A will abolish the constitutional provisions of Article 14 and Article 15(3) this will be the reason why the country has failed to achieve its ambitious gender equality goals. The court also confirmed the effects of special measures in-laws and enforcement orders that benefit women (e.g. in Laxman Ram Mane vs the State of Maharashtra[iv], Nripen Roy and others vs State of West Bengal[v], Satya Narayan Tiwari @ Jolly & Anr. vs State Of U.P[vi], Inder Raj Malik And Ors vs Sunita Malik[vii], Gurbachan Singh vs Satpal Singh & Ors[viii]). It can be supplemented in accordance with the 2010 bill amending the Criminal Procedure Code (CrPC). Currently, the police have restrictions on arrests. Arrests can only be made after a proper investigation of the alleged matter.

Misuse of Section 498A and its Recovery

With the continuous rise of modernization, education, financial security, and new independence, radical feminists have made 498A a weapon in her hands. Many unhappy husbands and relatives became victims of these kinds of women. 498A proved to be wrong (recognized by the High Court and Supreme Court of India repeatedly) because it was merely an attempt to blackmail the in-laws by the wife (or her close relatives) when forced with a strained marriage. In most of the cases of section 498A, a large amount of money (extortion) was demanded to resolve the case out of court.

If his wife made false accusations against these men and he proved his innocence in accordance with the law, the abuse of 498A could be combated. The Indian government and judiciary continue to protect women, and the law does not ignore men. Justice continues to triumph over injustice. Individuals whose reputations have been damaged by false accusations seek compensation and protection from IPC Article 498A. They are:

Section 500 of the Indian Penal Code allows husbands to file defamation suits.[ix]
According to Section 9 of the CPC, the husband can claim compensation for the losses suffered by him and his family based on false accusations of cruelty and abuse.[x]
Section 182 of the IPC is one of the safeguards against a wide range of false 498A cases. If the agency believes that the average value described is invalid, under Section 182 of the Indian Penal Code the culprit will be sentenced to 6 months imprisonment or both. The judicial system charges the person for misleadingly providing false information.[xi]

Conclusion

The misuse in Section 498A is not a rumor. It has now been proved that the woman made a false accusation under the provisions of IPC Section 498A. Men have no laws to protect themselves from abuse by women. IPC Section 498A has been misused in all district court cases. Unlike the men in society, women use this section as a weapon to obtain money from their husbands. Article 498A of the IPC is misused by women in respect of husbands and in-laws. This is a very controversial topic these days. If the legislation does not solve this problem, it will become a social nightmare and undermine people’s trust in the judicial system. Therefore, it is time to amend this section and bring some changes.

[i] Indian Penal Code 1860, s 498A.

[ii] Indian Evidence Act 1872, s 113A.

[iii] Inder Raj Malik and others v Ms. Sumita Malik, 1986 Cri L.J 1510(Del.).

[iv] Laxman Ram Mane vs State of Maharashtra, 2010 Indlaw SC 217.

[v] Nripen Roy and others vs State of West Bengal, 2010 Indlaw CAL 763.

[vi]Satya Narayan Tiwari @ Jolly & Anr. vs State Of U.P, NO(s). 1168 OF 2005 [2010] (Supreme Court).

[vii] Inder (n 3).

[viii] Gurbachan Singh vs Satpal Singh & Ors, 1990 AIR 209.

[ix] Indian Penal Code 1860, s 500.

[x] Civil Procedure Code 1908, s 9.

[xi] Indian Penal Code 1860, s 182.

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This article is authored by Sanskriti Goel , a 1^st year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. This is an exhaustive article which talks about what culpable homicide is and also discusses in detail the exceptions to section 300 of the Indian Penal Code, 1860.

INTRODUCTION

Chapter 16, the longest chapter in the Indian Penal Code, 1860 (hereinafter ‘IPC’) deals with offences affecting the human body, including culpable homicide (section 299) and murder (section 300).

The word ‘Homicide’ has been derived from the Latin word ‘homo’ which means a man and ‘Cido’ which means to cut or kill. Therefore, homicide means the killing of a human being by a human being. It is to be noted that natural death is not categorised as homicide. Homicide is the comprehensive term used for causing, or accelerating the death of a human being by another human being. It depends upon certain circumstances to determine whether an act of homicide is punishable or not. For instance, killing in self defence or by reason of mistake of fact does not amount to culpable homicide.

Which is the Wider Term Culpable Homicide or Murder?

Culpable homicide is a much wider offence than that of murder, as all acts of culpable homicide are not acts of murder, but all acts of murder are acts of culpable homicide. Section 299 of IPC deals with culpable homicide which does not amount to murder, whereas section 300 defines culpable homicide which amounts to murder.

In the case of Nara Singh Challan v. State of Orissa (1997 CriLJ 2204), it was held that Section 299 of IPC is the genus and Section 300 of the Indian Penal Code is the species.

Culpable Homicide [Not Amounting to Murder]

Section 299 reads as under:

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

For instance; A , not knowing that B recently had a brain operation, hits him hard on his head with a wooden bat. B dies because of rupturing of his head. Here A has committed the offence of culpable homicide.

Following are the essential ingredients of section 299:

Causation of death of human being
By doing an act
The act must have been done with the:
- intention of causing death; or
- intention of causing such bodily injury as is likely to cause death; or
- Knowledge that the doer is likely by such act to cause death.

Section 304 prescribes punishment for culpable homicide not amounting to murder. This section indicates that the offence has been classified based on the gravity of the crime to punish the accused. Where the intention is to cause death or cause such bodily injury as is likely to cause death, then the accused shall be punished with imprisonment for life or imprisonment for 10 years and fine. On the other hand, if the act is done with the knowledge that such act is likely to cause death and there is no intention to cause death, then the accused shall be punishable with imprisonment of up to 10 years or with fine or with both.

In Harjinder Singh v. Delhi Administration (AIR 1968 SC 867), the accused was trying to assault one person and the deceased intervened. When the accused found himself against two persons, he took out a knife and stabbed the deceased in his left thigh. The blood vessels of the body were cut which resulted in great loss of blood and led to immediate death. The accused was convicted under Section 304 IPC, Part I. It was taken into notice that the offence is culpable homicide if the bodily injury intentionally inflicted, is likely to cause death.

Murder

Murder is an aggravated form of culpable homicide. The causation of death and criminal intention or knowledge are common constituents of both murder and culpable homicide not amounting to murder. In comparison to culpable homicide, there exists greater intention or knowledge in murder.

Section 300 reads as under:

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

For instance; A , knowing that B recently had a brain operation, intending to cause, or knowing it to be so dangerous that it must, in all probability cause B’s death, hits him hard on his head with a wooden bat. B dies because of rupturing of his head.

It must be taken into account that Section 300 defines murder with reference to culpable homicide stated in Section 299. So, in simpler words, if the acts of the accused first lies within the definition of culpable homicide and then comes within any of the 4 clauses as outlined in Section 300, this act of homicide will amount to murder.

The essential ingredients of murder are as follows:

Culpable homicide is murder, if it is done with:

the intention of causing death; or
the intention to cause bodily injury, knowing that the injury caused is likely to cause death; or
the intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death; or
the person doing the act must have knowledge:
1. that the act is so imminently dangerous that in all probability it will cause death or bodily injury likely to cause death; and
2. that such act is without any legal justification.

In Chahat Khan v. State of Haryana (AIR 1972 SC 2574) , the Hon’ble Supreme Court held that since intention is always a state of mind, it can be proved only by acts. Thus when injuries are inflicted on vital parts of the body with sharp-edged weapons, then the intention to kill can be attributed to the accused.

Section 302 prescribes punishment for murder. It states that whoever commits murder shall be punished with death (only in the rarest of the rare cases) or imprisonment for life and fine.

Exceptions to Section 300

Section 300 lays down five exceptions which mitigate the offence of murder into culpable homicide not amounting to murder. The exceptions are legitimized on the grounds that in such cases the deceased is equally responsible for his death. Accordingly, the criminal liability of the accused is alleviated from murder to culpable homicide not amounting to murder punishable in Section 304. However, the exceptions mentioned in Section 300 are only partial defences. These defences partially reduce the criminal liability of the accused and do not absolve him completely. On the other hand, General Exceptions specified in Chapter 4 of the IPC absolve the accused of any charges completely.

Exception 1: Grave and Sudden Provocation

There must be provocation to the accused.
The provocation must be both grave and sudden. If the provocation is sudden but not grave, or vice versa, then the offender cannot avail of the benefit of this exception. For example; merely slapping on the cheek may cause sudden provocation but the same is not grave.
The provocation must deprive any reasonable man of his power of self control over himself.
The act of killing must be done under the immediate impulse of provocation.
Provocation must be proved and not presumed.

Illustration: Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

Exception 2: Exceeding Right of Private Defence

The act must be done in exercise of the right of private defence of person or property.
The act must have been done in good faith.
The doer must have exceeded his right given to him by law and have thereby caused the death.
The act must have been done without premeditation.
The act must have been done without any intention of causing more harm than was necessary for self-defence.

Illustration: Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3: Act of Public Servants

The person accused of murder must be a public servant or one who is aiding such servant when the letter is acting for the advancement of public justice.
An act must have been committed by a public servant in the discharge of his lawful duties.
The doer exceeds the power given to him by law.
The act must have been done in good faith.
The act must have been done without any ill-will or malice towards the person whose death is caused.

Exception 4: Death caused in Sudden Fight

The fight must have been with the person killed.
Sudden fight must be without any premeditation.
The act must have been committed in a heat of passion.
The offender must not have taken undue advantage or must not have acted in a cruel or unusual manner.

Exception 5: Death caused with Victim’s Consent

Person move death is caused must have consented to the causing of his death or the taking of the risk of death; and
The person consenting must be above the age of 18 years.

Illustration: A, by the instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z`s youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This article discusses the regime of specific weapons under the International humanitarian law

INTRODUCTION

International humanitarian law can be defined as a set of rules and regulations which seek out, for humanitarian purposes, to curb the impacts of armed conflict. It safeguards people who are not or are no longer contributing to the hostilities and constrains the means and approaches of warfare. International humanitarian law is also widely known as the “law of war or the law of armed conflict”. This law is a part of international law, that is the body of rules or regulations administering relations between States. International law is included in agreements between different States, treaties, or conventions, and in customary rules, which comprise of State practise deemed by them as legally binding, and in general principles.

International humanitarian law applies to armed conflicts. It does not control that if a State may essentially use force, this is governed by an essential, but different, part of international law which is set out in the United Nations Charter. International humanitarian law encompasses basic principles and regulations directing the selection of weapons and prohibits the employment of specific weapons. The International Committee for Red Cross performs a prominent role in the promotion and advancement of law regulating the use of specific weapons.

Humanitarian Law Limits the Way Weapons are Used

From the start, International Humanitarian Law (IHL) has attempted to limit the distress and suffering caused by armed conflict. To accomplish this, International Humanitarian Law focuses on both the behaviour of combatants and the selection of methods of warfare, including weapons. Initial treaties barred the use of exploding projectiles which weighed less than ‘400 grams’ (in 1868) and certain bullets that flatten upon entering inside the human body (in 1899).

In 1925, governments adopted the ‘Geneva Protocol’, which prohibits the use of poisonous gas and bacteriological means of warfare. This treaty was modernised with the adoption of the ‘Biological Weapons Convention in 1972’ and the ‘Chemical Weapons Convention in 1993’, both of these conventions reinforced the 1925 Protocol by spreading prohibitions to the development, manufacture, procurement, stockpiling, retaining and transfer of biological and chemical weapons, and necessitating their destruction.

Several conventional weapons are controlled in the 1980 Convention on ‘Certain Conventional Weapons’. This Convention restricts the use of munitions that use pieces which are not visible or detectable by X-ray and blinding laser weapons. It also curbs the use of inflammatory weapons as well as mines, booby traps and “other devices”. The Convention is also the very first treaty to create a framework to focus on the post-conflict risks of undischarged and abandoned ordnance.

Anti-personnel landmines are forbidden under the “Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997”. Almost more than three quarters of the entire world’s countries have entered this Convention, which had a very positive impact in terms of destruction of stockpiles, mine clearance, reduction of casualties and assistance to victims.

On 30 May 2008, “Convention on Cluster Munitions” was adopted by 107 States. The obligations of this treaty become legally binding on 30 consenting States on 1 August 2010 and consequently for other ratifying States. By adopting and implementing this Convention, States have undertaken a big and a major step towards ending the death, injury and suffering caused by these weapons.

The unfettered widespread accessibility of arms adds to breaches of international humanitarian law and hinders the distribution of support to victims. Since 2006, States have been debating on the global “Arms Trade Treaty” (ATT). In January 2010, the United Nations General Assembly chose to assemble the 2012 United Nations Conference on the Arms Trade Treaty to intricate a legally binding tool on the highest possible international standards for the allocation and transfer of conventional arms. The International Committee for Red Cross supports the explanation of a thorough, legally binding Arms Trade Treaty that creates a common international standard for the conscientious transfer and brokering of all standard weapons and their ammunition.

The damaging power of the nuclear weapons has put them in a classification of their own, yet there is no complete or universal prohibition on their usage under international law. Nonetheless, in July 1996 the International Court of Justice which is known as ICJ determined that their use would usually be opposite to the principles and rules of International Humanitarian Law. The International Committee for Red Cross thinks that it is difficult to foresee how the use of nuclear weapons can be compatible with the regulations of International Humanitarian Law. In viewpoint of the distinctive characteristics of nuclear weapons, the International Committee for Red Cross has further called out on all States to make sure that such weapons are not used again, irrespective of their views on the validity of such use. Faced with the continuous and rapid development of weapons, the International Committee for Red Cross has circulated and published a Guide to “Legal Reviews of New Weapons, Means and Methods of Warfare” to help governments achieve their responsibility to ensure that the use of new weapons, means or methods of warfare comply with the rules of International Humanitarian Law.

Categories of Weapons

Some of the weapons are approved, except for certain uses thereof, while others are rigorously prohibited ‘(incendiary, biological, and chemical weapons)’. The overall rule that forbids attacks against citizens is appropriate to the use of all weapons.

Edged Weapons: These are any “offensive or cutting blades” or other weapons which are made of metal or steel, like knives, swords, axes, daggers, or spears. Their usage is limited by the common rules of humanitarian law, which forbid attacking non-combatants, killing, or injuring dangerously, and causing unnecessary injury or unnecessary suffering.

Firearms: This is a very comprehensive class of weapons, involving all those that shoot cartridges or dangerous explosive projectiles, such as shotguns, cannons, bombs, missiles, cluster munitions, and so on.

Incendiary Weapons: These weapons fall under the classification of firearms. Their objective is to set fire to pieces or to cause burn wounds to humans. As with all these weapons, it is forbidden to use them against people and objects safeguarded by humanitarian law (e.g., civilians and civilian goods, including forests).

Weapons of Mass Destruction: This denomination contains three types of weapons: biological, chemical, and nuclear. Since these are arbitrary, by nature, their usage is hard to resolve with the spirit of humanitarian law, which is centered on the military ability to differentiate between ‘civilian and military objectives, and between civilians and members of armed forces’,

Bacteriological (or Biological) Weapons: Bacteriological weapons which are commonly known as biological weapons are those that aim to proliferate disease that endangers the health of human beings, animals, and plants. Customary international humanitarian law forbids the use of biological weapons in international and non-international armed conflicts.

Chemical Weapons: Chemical weapons cause death, momentary incapacitation, or permanent damage to humans or animals. Mostly, they include the munitions and devices that discharge toxic chemicals. Numerous conventions prohibit their use, production, and stockpiling.

CONCLUSION

The law of armed conflict seems to be torn between two contradictory instincts– the need to wage war efficiently and the yearning to protect people and property against the consequences of such warfare. The law of armed conflict attempts to resolve these impulses, in a very profoundly pragmatic manner. International humanitarian law induces States and Non-State parties alike to try their utmost to protect and preserve the life, limb and property of non-combatants and others “hors de combat” which means ‘out of action due to injury’, while at the identical time giving parties to a battle leave to commit acts of ferocity among restricted boundaries. However, once those restrictions are contravened, once the culprits of war crimes are not brought to account for his or her indiscretions, there is a genuine desire to dismiss International humanitarian law as deficient in any real prescriptive force. This can be a noticeable response; though, it fails to comprehend the intricacies of International humanitarian law.

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Vanshika Arora, is a first-year B.A. LL.B student at Army Institute of Law, Mohali. This article is an introductory guide to jurisprudence.

INTRODUCTION

Jurisprudence has been defined and studied by various thinkers and jurists over a long period of time. Hence, it is not possible to single out a common, widely accepted definition of jurisprudence. Law is dynamic, society and societal changes are dynamic in nature, therefore, the subject matter of jurisprudence inevitably evolves. Simply put, jurisprudence helps one understand the concept of law, investigate the nature of legal rules, and reflect upon the meaning of underlying legal systems. It answers questions that scrutinize legal relationships with morality, ethics, and other social phenomena. Jurisprudence finds its origin in the classical Greek period, wherein Roman jurists started delving into the concept of law.

Meaning

The word Jurisprudence originated from the Latin word ‘Juris Prudentia’, which can be broken down into ‘Juris’ and ‘prudence’, which respectively mean ‘law’ and ‘forethought’. Jurisprudence hence means ‘knowledge of the law’ or ‘legal theory’ or ‘study of the law’.

Lord Tennyson calls it the ‘topic of Lawless Law’ since it is not derived from any legislative statute or state assembly. Moreover, jurisprudence discusses related principles such as rule of law, need, and importance of law, etc.

Bentham, regarded as the ‘Father of Jurisprudence’, was the first one to study law. He divided his study into two parts,

Expositorial Approach: This approach stated that law is to be followed ‘as it is’. Law is the command of the sovereign, hence this command should be followed without any discourse.
Censorial Approach: This approach stated that law is ‘as it ought to be’. It focused on the morality of law and its latent objectives. Instead of law being merely an instrument of power and enforcement, it should also reflect what is right in terms of ethics.

Definitions

Ulpian, the Roman Jurist, defined Jurisprudence as the observation of things, human and divine, the knowledge of the just and the unjust.

Austin, defined jurisprudence within the limits of ‘command of the sovereign’, and did not believe in Bentham’s censorial approach. Moreover, he regarded jurisprudence as the ‘philosophy of positive law (jus positivum). As stated earlier, he believed law was an instrument of the political superior to practice command over his inferior subjects. He further divided jurisprudence into two categories,

General Jurisprudence: law that is common to all.
Specific Jurisprudence: law that concerns itself with a specific section of the society.

Holland regarded jurisprudence as ‘the formal science of positive law’, which is analytical in nature. He defined positive law as the general rule of external human action enforced by sovereign political authority. He further elaborated that jurisprudence is not concerned with the contents of the law, but only fundamental conceptions, making it a formal law.

Salmond defined jurisprudence as the ‘science of law’, wherein law is civil law and law of the land. Moreover, he divided jurisprudence into two sections:

General: Dealt with the entire body of legal doctrines.
Specific: Dealt with a particular portion of the doctrines.

Specific jurisprudence was also divided into three more sections:

Expository/ Systematic/Analytical: Dealt with contents of the actual legal system at any point in time, past, present, or future.
Legal History: Concerned with historical legal developments
Science of Legislation: Ideal future of the legal system and the purpose that it may serve.

Keeton defined jurisprudence as the study and scientific synthesis of the essential principles of law.

Roscoe Pound attempted to define jurisprudence as the science of law, wherein law should strictly be understood in its judicial sense, which would mean the body of principles recognized and enforced by public and regular tribunals in the administration of justice.

Relationship with Other Social Sciences

Social science, in its truest form, is the science of society, its people, and its nuances. Within the broad niche of social sciences, one may discover a separate science dealing with every aspect of society. May it be economics, politics, sociology, ethics, law, and so on. Jurisprudence, which loosely stated, is the knowledge of the law, relates itself to different social sciences in the following manner,

Sociology: While a legal professional is predominantly concerned with rules and regulations that constitute law, sociology steps in to relate the ramifications of these rules within the society and serve the actual purpose behind law. Sociology concerns itself with the influence of law on society and human behavior.

Psychology: Jurisprudence is concerned with man’s external behavior, while psychology helps legal professionals turn an eye towards mental processes, behavior, and bodily reactions to benefit the field of penology. Criminology and the process of punishment and sanction, in law, should always take into consideration, questions like, ‘the motive of a crime, ‘personality nuances of criminals’, ‘biological nuances of criminals’, etc.

Ethics: Ethics is the science of moral, and positive human conduct. Law intends to control human conduct in a manner that is not disadvantageous to the rest of society. Hence, ethics and law cannot be divorced. Largely, all that is not ethical finds itself prohibited under the law, inviting punishment and sanction. But, morality too is subjective and changes its scope with time, making ethics and law a dynamic sect of human life.

Economics: The relationship between economics and law is vivid. Economics is the science of production and distribution of wealth, the equitable enforcement of which, is the responsibility of law. Therefore, every legislation, legal premise, and argument focuses on economic welfare.

Scope of Jurisprudence

In the words of Karl Lwellyn, ‘Jurisprudence is as big as law and bigger’, hinting at its vast scope. Justice PB Mukherjee stated, ‘Jurisprudence is both an intellectual and idealistic abstraction as well as the behavioral study of man in society. It includes political, social, economic, and cultural ideas. It covers that study of man in relation to state and society.’ Jurisprudence is often regarded as ‘the eye of law’ and covers a vast spectrum that cannot be limited to a particular area concerning law. It extends to the practical study of law, compares and reviews various legal systems. It also concerns itself with legal principles that are not strictly enforceable in the government machinery, regardless are essential in legal understanding.

Conclusion

While it is common practice to study legislations and statutes to understand the law. Jurisprudence and other social sciences help the legal fraternity introspect the ramifications, effects, and results of a particular law or statute. Jurisprudence ventures into historical theories propounded by age-old jurists, hence giving contemporary professionals a taste of history and the evolution of law since then.

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This article is written by K.Lasya Charitha pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses Insurance frauds in India and the dire need for stricter laws to mitigate Insurance frauds.

India is one of the largest insurance company markets in the world. However, it should also be understood that India’s insurance business is at risk because Indian insurance companies face an unusually high rate of fraud. It is estimated that the Indian insurance industry has lost approximately US$6 billion due to insurance fraud in India, accounting for approximately 8.5% of all premiums collected each year.

All sorts of insurance rules are susceptible to fraudulent claims. However, a faux declare on life insurance rules are six instances much more likely compared to different sorts of rules.

What is Insurance fraud?

Insurance fraud is an act or omission designed to provide a dishonest or illegal benefit to a fraudulent party or other related parties. Similarly, when abused, people engage in activities that contradict business ethics and medical practices, leading to an unnecessary increase in reimbursement expenses.

Insurance fraud can take any form and can be implemented in many different ways. It is willful and deliberate and done for illegal financial gain. Anyone in the insurance business can do this. Fraud is becoming more serious as the insurance business depends on trusts and promises to be kept. The purpose of insurance is to protect everyone. In the event of fraud, both the insurance company and the policyholders bear the losses. Fraud will go against the basic principles of insurance such as insurable interest, maximum good faith, immediate cause, and compensation. Fraud, therefore, affects customers who are unable to pay premiums and consequently affects their level of protection.

People who commit insurance fraud include:

Organized criminals who steal large amounts of money through fraud,
professionals and technicians who charge a lot of service costs or charge for unused services, and
Common people want to cover up their franchise rights or file a lawsuit as an opportunity to make money.

Certain types of insurance are more susceptible to fraud than others. The worst-hit sectors are usually healthcare, workers’ compensation, and auto insurance.

Claims Related Fraud: Policyholders may generally commit these kinds of frauds

Hide existing conditions: most personal health policies provide timeouts for existing diseases. The insured person conceals this fact by falsifying the medical report before issuing the insurance policy.
Insurance terms: Young people and healthy people are obvious choices for insurance companies. People with other characteristics, such as elderly people do not necessarily have to refuse their application, but may need more rewards. In this case, they try to cover up old age or chronic diseases. Fake obstacles are also included.
Double draft: The submission of forged or excessive invoices is also fraudulent, especially if no fees are incurred. Insurance required for medical expenses or surgery will be canceled. Insurance policies should not be profitable.
Withholding information of multiple policies: The insured has the responsibility to inform all other insurers about existing insurance policies, whether they are group insurance or individual insurance, in order to avoid multiple claims on this subject and benefit from them.
Participate in fraudulent networks: One person can make false statements with another person (such as an agent, doctor, or provider), such as Change the information he inherited to file a claim.
Orchestrated accident: A person might stage an accident so that they can claim compensation for their medical and hospital expenses.

Insurance Frauds in Recent Times

Five arrested on charges of fake life insurance claim in Telangana: In the Nalgonda area, five scammers were arrested on suspicion of committing life insurance fraud by killing people and predicting road deaths. The gang used to deliver forceful blows on the chest of the victims to kill them and then use various vehicles to drive over their bodies. Fraudsters, in consultation with family members of the deceased and others, claimed insurance sums over 1.59 crore from various private insurers after making traffic accident claims in excess of 3.39 crore.

Doctor, 3 Others Arrested For COVID-19 Insurance Fraud In Gujarat: The doctor and another person had used bogus medical records of two people to claim insurance to the tune of Rs. 4.5 lakh. Another person would tamper with the sticker of COVID-19 test samples and paste names of policyholders, and when these samples returned negative, he would tamper with the writing to make them positive.
Haryana Man Fakes Death For Insurance: According to reports, a Haryana businessman faked his death, so his family can apply for insurance. Three days after the police removed the three cremated bodies from his car, the family informed them that he had been killed in 11 lakh.

Some Policies to Control Insurance Frauds

IRDA Fraud Policy: According to the Insurance Regulatory Authority (IRDA), all insurance companies must establish a fraud monitoring framework that includes measures to protect, prevent, detect and mitigate the risk of fraud affecting policyholders/applicants, intermediaries, and employees of insurance companies.

Anti- Fraud Policies: Insurers are expected to take a holistic approach to properly identify, measure, control and monitor fraud risk and, consequently, establish appropriate risk management policies and procedures. Once a year, and at other intervals deemed necessary, the Insurance company Board of Directors are mandated by the IRDA to review their respective Anti- Fraud policies. such guidelines should provide comprehensive guidance on fraud monitoring procedures, identifying potential fraud avenues, and guidelines for working and coordinating with government and law enforcement agencies for identifying the act of frauds. These policies also guide in building a framework that will allow them to share information with other insurance companies about sharing information about incidents and scenarios of such fraud so that they can be repaired within the insurance ecosystem.

Fraud Monitoring Function: Each insurance company is mandated to have the fraud monitoring function as a separate industry to ensure the effective implementation of anti-fraud policies. They are responsible for establishing procedures for internal reporting to/from various departments in order to train staff and agents on identifying and preventing fraud. In addition, they must keep regulators regularly informed of these incidents and the measures taken to contain these scenarios within a specified period of time. Finally, they must submit regular reviews to their respective councils for review and course correction. Insurers have an obligation to inform both prospective and existing customers about their anti-fraud policies. The insurers include the necessary precautionary measures in insurance contracts and relevant documents and explain the consequences of submitting a false or incomplete declaration in favor of the insured, the applicants, and their beneficiaries.

Insurance Fraud Control Act: India’s Urgent Need

Although the fraud cases in 2019 left a 45 billion rupees gap in the pockets of the Indian insurance industry, India does not have an effective insurance fraud bill. In percentage terms, most insurers lose 10-15% across all lines of business, while fraudulent health insurance claims can be as high as 35%. 90% of auto insurance fraud is the result of padding claims (which means damage, injury, and fictional passengers to insurance claims). The other 10% of insurance fraud comes from staged accidents. Most frauds in life insurance occur when the insured amount is between 2 lakh and 12 lakh.

In India, there is no specific provision for insurance fraud in the Indian Criminal Code. Some sections that have some relevance are Section 205: Impersonation of a false identity for acting or proceeding in a lawsuit or law enforcement; Section 420: Fraud and dishonest induction of the transfer of property; Section 464: preparation of a false document containing characters, stamps, and forgeries, and Section 405: criminal breach of trust. However, these provisions are insufficient to prosecute a fraudster in today’s organized insurance fraud scenario. It is not customary to take legal action against insurance fraud in legal proceedings in our courts, and fraud on amounts that is not large enough is acceptable, as opposed to the time and energy invested in prosecuting it. Risk management will be a major concern of insurers and business executives who need to continually reassess their processes and policies in order to manage and mitigate the risk of fraud.

Business leaders recognize the need to address this risk, but the lack of a comprehensive and integrated approach to fraud risk management remains a concern. Insurance fraud is a huge problem, affecting the lives of innocent people, both directly through accidents and willful injury or damage, and indirectly as these crimes cause insurance premiums to rise every year. Honest customers shouldn’t have to pay the price of scammers through higher premiums. Compared to other crimes, insurance fraud judgments are milder and lower. If the Indian insurance industry is currently working to reduce costs, one of its main focuses in controlling or reducing costs is on proactively ending fraud, this can be achieved through an effective fraud risk assessment program and with dedicated investigation units in each organization.

Before reporting a case, awareness of the proper functioning of the law should be raised. Central and state governments should also give serious thought to enacting specific laws to combat insurance fraud and establish insurance fraud bureaus. Academicians around the world and anti-fraud professionals working in the insurance industry believe that India should consider the Insurance Fraud Control Act, in accordance with the laws of various US states, as a starting point for discussion and bringing the discussion about the bill in the parliament as soon as possible.

Conclusion

Although there are various policies and institutions in India that deal with insurance fraud, we are still seeing a lot of fraud and losses to businesses and firms. As we can see, our country has a lot of insurance fraud that is losing businesses. This translates into around 40,000 rupees annually or 8.5 percent of the industry’s turnover. Individuals and insurance companies should also take more precautions about false insurance claims as they need to ensure that the claims insurance companies are paying for are real or not. So, there is a very serious need for the Insurance Frauds Control Act in India to control all kinds of Insurance Fraud occurring in and around the country.

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This article is written by APURVA, a student of Fairfield Institute of Management and Technology, GGSIPU. This article gives an overview of “The Fugitive Economic Offenders’ Act, 2018”.

ABSTRACT

Development of any Country basically depends on the growth of the industries which involves huge investments from financial sectors and banks. But over Past few years, a rise in the number of banking frauds has been seen and Mr. Vijay Mallaya was the first person to gather all the highlights towards him. Various factors like negligence of the authorities, lack of due persistent efforts while giving out loans, etc., can be the reasons for such frauds. Though, the government recognized that the reason for frauds could be the absence of strict means in the legal system of the country. Hence, an ordinance introducing ‘Fugitive Economic Offenders Bill’ was brought before the President which later was passed in the monsoon session of 2018 by the Lok Sabha. This article deals with the same.

Keywords: Banking Frauds, Negligence of the Authorities, Fugitive Economic Offenders Bill, Lok Sabha

INTRODUCTION

Envisaged by the 2017 Union Budget for the first time, the “Fugitive Economic Offenders’ Act” was originally enacted in the form of ordinance. This Act came into force on 21 April 2018.

The Preamble of this act states that it aims to scare off the fugitive economic offenders from evading the mechanism of law of India by staying away from the jurisdiction of Indian Courts preserving the sanctity of Indian Law.

This act relies heavily on the ‘PMLA’- Prevention of Money Laundering Act, 2002, but both aims to achieve different goals.

Who is a Fugitive Economic Offender

The Fugitive Economic Offenders (FEO) Act, 2018 defines a fugitive economic offender as:

“any individual against whom a warrant for arrest in relation to a scheduled offence has been issued by any court in India, who

has left India so as to avoid criminal prosecution; or
being abroad, refuses to return to India to face criminal prosecution”.

To ask a court that a particular individual may be declared an FEO an application is filed in the special court accompanied by the reasons for the belief that the individual is a fugitive economic offender or any information available as to the whereabouts of the fugitive economic offender and, a list of properties or the value of such properties believed to be the proceeds of crime, etc. Then a notice is issued to the individual to appear at a specified place and drop the proceedings if the individual obeys. However, if the court is satisfied that the individual is an FEO, it may be recorded along with reasons. The court may then order the seizure of the properties of the accused individual in India and abroad.

Mallya Scam

Vijay Mallya is an Indian businessman and a former member of Parliament (Rajya Sabha). He became the chairman of United Breweries Holdings Limited (UBHL) and grew its company rapidly. From 1998 to 1999, the turnover of the company grew by 64%. He also Diversified the business of the company by acquiring many other companies like Berger Paints. He was also elected as a member of parliament twice from Karnataka. The company achieved the milestone of selling 10 crores cases in India and became the second-largest spirits company in India.

Vijay Mallya wanted to expand his business. His advisors advised him not to but despite the advice, he did the same and sold another company formed by his father to fund its airline company. Soon Kingfisher became India’s no.1 domestic airline company but due to some restrictions, the Indian Government did not allow kingfishers to fly internationally. To fly international flights, he bought Deccan Air as a loss-making company and merged it with Kingfisher Airlines but could not make the profits thus by 2010 his business was in a heavy loss.

To run his business, he continuously took loans of 9000 crores by 17 different banks. Although SBI has declared them as bankrupt, other banks kept lending him loans because he was a member of Rajya Sabha, and some parties supported him. His company also held service tax of passengers, PF, Income Tax of Employees, but did not submit to the PF or IT authorities. The company also did not pay the salary of its employees as it ran out of cash.

In 2012 the company ultimately had to shut down its operation. Vijay Mallya had a loan of 9000 from different banks which he denied paying. The Company United Breweries compelled Vijay Mallya to resign the post of chairman of united spirits and paid him $75M for a severance payment, but Indian courts blocked this payment.

A case against Vijay Mallya was filed by SBI and other banks but before any action could have been taken against him, he flew away to the United Kingdom. There is also a story of him that he offers the banks to pay 4000 crores for settlement, but banks refused his proposal and demanded at least 4900 crores, the principal amount furthermore interests as well.

Later he was announced to be a fugitive economic offender (FEO) on the request of the Enforcement Directorate by a special court in Mumbai and became the very first businessman to be announced as FEO under the provisions of the Fugitive Economic Offenders Act, 2018.

An Analysis of the Provision

The Fugitive Economic Offenders Act provides a method of deterrence for those offenders who commit frauds in India and hide in a retreat in a foreign country. This act empowers the authorities to impound and sell the properties in question to realise the money. The act has also included the properties which are situated abroad as well those which are a part of the benami transactions. Further in order to avoid any kind of delays due to the pendency of cases, the act prevents the FEO from filing any civil claim or defending any claim before the Courts. To balance such prevention, it has been endowed as a discretionary power on the Courts or Tribunals in India. The act also further refers to the creation of a Special Court under the Prevention of Money Laundering Act, 2002 to provide speedy justice to the financial institutions and banks while making their recovery.

CONCLUSION

The proceedings commenced under the “Fugitive Economic Offenders’ Act, 2018” will automatically come to an end as soon as the economic offenders will surrender themselves before the jurisdiction of the Indian Courts. Thus, this is an act, to bring back the economic offenders to the country. It is a ray of hope for the banks and financial institutions who are the victims of such offences. Whereas the enactment of the 2018 act provides for the confiscation of property which is situated abroad. However, certain amendments and clarifications may be welcomed for effective implementation rather than just concentrating on recovery from foreign assets.

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This article is written by Vishrut Gupta, a student of Lloyd Law College. This article aims to explain to the readers about the connection between the Covid 19 on-going crisis and the rising scope application of Torts Law in today’s time.

INTRODUCTION

In today’s time, if anything left to be discussed, it has to be the pandemic. The world has been struggling with the pandemic for about a year now. Some economies have recovered now, some are in their worst phase due to the loans and burdens, and some are still struggling. The second wave has added fuel to the blazing fire when the situation was asking to improve. But, it comes down to one question- “Where did it all start?” The virus leak from Wuhan’s laboratory is the origin of this pandemic. Therefore, some experts say that China should compensate for creating this whole pandemic due to their negligence. “This would include both the civil as well as a criminal offence”, says Nitsana Darsham Leitner, an Israeli Attorney. But this article would especially emphasize the civil aspects of China’s act. Torts have taken entry in this Covid crisis where the wrongdoer, i.e. Chinese are believed to be liable for the spread of this deadly virus.

How Torts is applicable

The basic definition is- “A tort is a wrong done against an individual which infringes his legal rights and duties and creates damage to that person.” The most elementary rights of every individual i.e. ‘the right to life’ and ‘right to live freely’ have been encroached due to the deadly virus, so this is a civil wrong. It has impounded everyone to their houses, brought various economies to their knees, and killed more than three million people to date. China is solely responsible for creating this wreck globally. But, can a country be sued for its actions in the court of law? It can only happen at an international level where all the countries will have to come together and file a petition in The International Court of Justice. China rightly condemns all the allegations to put on it and tries to clear its name with regards to this pandemic. No one wants to take responsibility and that’s why the Torts law is relevant here to do justice when there has been a collective loss to mankind done.

Treaties and Laws Dealing with the Epidemic Spread

Sadly, till now there is no such international treaty to address the global spread of such fatal diseases and infections like Covid. The world witnessed the SARS outbreak in 2002, unfortunately, which also was 1st identified in China. Then the question comes, since that time why there isn’t any such law in regards to the international spread of the virus. The negligence of some has resulted in the destruction and suffering of many. There is a clear infringement of Article 25 of the Human Rights Declaration which states that “Everyone has the right to a standard of living adequate for the health and well-being.”

What India and other Countries Say?

The Chinese authorities have declared that countries like India, the USA and Australia are responsible for the spread of this worldwide infection. A telephonic survey conducted by an institution in Bengaluru finds that 67% of Indians believe that China is responsible for this pandemic. It is clear that the virus came out from the wet markets of the city of Wuhan and spread out in different countries across the globe. But officially, India has not joined the other countries like the US and France to blame China for the Covid spread. India is silent and currently fighting against the virus, also there hasn’t been any evidence found against China to blame her. Although, a team from the US was sent to investigate the Wuhan lab, for finding traces of the origin of Covid. Then, China should pay compensation to some economies for causing the mass destruction. The fact of the matter is that in Torts i.e. civil cases, there is no requirement of evidence. Merely proving a civil wrong and damage will suffice. For a criminal case, strong evidence must reach the court.

Businessmen and Torts

In other aspects where torts law is applicable is the shutdown of the whole economies and the various restrictions over trade. The businesses have suffered a huge loss, some traders even had to shut their business and sell assets for bread and butter. The continuous lockdown everywhere astonishingly resulted in the unprecedented shrink of the global economy and created recessions. Some businessmen have filed civil suits against the government for the losses in their business while some have filed for losing their family members due to poor health facilities.

Workplace Exposure and Torts

Another aspect came from the workplace exposure to the virus. It was also found that the people who were affected from their workplaces filed suits for damages. This comes under absolute liability which is a concept of torts law where the boss is responsible for the damages done to its employees at the workplaces. Last year, in the state of Pennsylvania, such a suit was filed by the estate for an employee who died of Coronavirus infection by getting affected at the workplace. We have seen the frontline workers especially doctors and nursing staff getting infected by the virus. For the sake of their devotion and commitment to their duties, they should also be given compensation. Recently, a case was seen in New Delhi, where the family members of the patient attacked the doctors and nurses because they could not save the patient and the patient died of the corona. This is a clear offence of Assault and Battery under torts for which that family should pay damages for the injuries done to the doctors.

About Present Indian Situation

If we talk about India, we have the latest incidents where the governments, High Courts and other bodies played a collective role in spreading the Covid and putting the life of billions of people at risk. The Kumbh Mela was organised where thousands of people came in contact. All the covid norms were torn apart by the government itself. Torts Law is equivalently applicable in this case also. The Legislative Assembly Elections were allowed and conducted in the states of West Bengal, Assam, Tamil Nadu, Kerala and the union territory of Puducherry during the second wave at its peak. This is the biggest example of selfishness and political blindness, which resulted in the sudden increase in covid cases and deaths of thousands of people. Say, we can sue and bring the government to courts also but what about the High-Courts. In the state of Uttar Pradesh, it was seen that the Allahabad High Court itself allowed the Panchayati Raj elections at the cost of the precious lives of the people. All these bodies, the government, the Courts; it is affirmative to hold them liable for the spread of the virus and the deaths of people. Not only the civil cases run over them for damages to the families, but they should also be charged with criminal offenses as their actions have made India sit on their knees.

Conclusion

Therefore, it is the need of the hour to start civil trials and include the Torts Law wherever the wrong has been done. Throughout this pandemic, we have seen that innocents have suffered and lost their close ones due to the negligence of some. In some countries, people have been cheated most likely due to such a stressful situation, they have paid more than justified for almost everything right from the fruits to ventilators. They should file suits considering Torts Laws and seek compensation. Better functioning of the system is required so that these situations can be avoided and the innocents cannot be exploited anymore. There is an urgent need for collective representation of all the countries in the international courts to sue the wrongdoer. The pertinent international laws and treaties need to be formed now to avoid the repetition of a similar situation in future where we are unable to bring the wrongdoer to courts due to loopholes in the system and laws.

The views expressed by the author in this article are personal

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