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Regulation of IBC Laws in India

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INTRODUCTION

One of the main changes in India’s overall set of laws is the Insolvency and Bankruptcy Code. This is on the grounds that the IBC does not just make India more grounded as far as the lawful structure, yet it additionally gives it another financial character and acknowledgment on an overall scale. If a disagreement emerges concerning bankruptcy, the debtor and the creditor have the authority to commence insolvency procedures against each other under the IBC, which is a combined study of numerous legal committees. With the President of India’s consent, the Insolvency, and bankruptcy Code 2016 became effective on May 28, 2016. Before that, there were long cycles that didn’t impressively offer a financially functional arrangement anyway as of now, this code is a one-stop reply for settling liquidations. To give a single guideline to Insolvency and Bankruptcy related issues, the Indian Insolvency framework went through a complete upgrade blending a couple of past guidelines (merging of 13 existing laws).

INSOLVENCY & BANKRUPTCY CODE, 2013

Meaning – Insolvency generally occurs when a person is unable to pay their debts to the creditor at the expected time frame. Bankruptcy, on the other hand, occurs when a court of competent jurisdiction declares a person or a business insolvent and issues necessary instructions to rectify the situation and safeguard creditors’ interests. Bankruptcy is a legal process by which an insolvent borrower seeks relief from his or her creditors.

Evolution – A statute was passed in 1828 that marked the commencement of insolvency-related law in India. In 1848, the Indian Insolvency Act established a division between traders and non-traders. There was no legislation dealing with insolvencies in non-presidency districts until 1907. The new Companies Act was approved in 2013, making several modifications to the corporate insolvency procedure.1 Chapter XIX of the Firms Act of 2013 dealt with the resurrection and rehabilitation of ill companies. This chapter has been removed since the IB Code now covers the full revival/rehabilitation method or mechanism. The Insolvency and Bankruptcy Code, 2016 consists of 255 sections (divided into 5 parts) and 11 schedules. At this point, the IBC is the main regulation that oversees indebtedness, insolvency, and the recreation of failed organizations, reducing the job of earlier regulations.

FUNCTIONS & PROVISIONS OF IBC, 2016

The 2016 Code lays out a period-restricted strategy for settling indebtedness. At the point when a debt holder defaults on an installment, loan bosses hold onto responsibility for the debt holder’s resources and have 180 days to settle the indebtedness. To guarantee that the goal cycle chugs along as expected, the Code awards debt holders’ resistance from banks’ goal claims during this time. The Code likewise unites components from existing regulation to give a solitary scene to borrowers and lenders, all things considered, to address bankruptcy.

The IBC, 2016, specifies a Rs 1 crore least boundary for starting the pre-packaged bankruptcy goal strategy. It considers the excusal of simultaneous bankruptcy goal process and pre-packaged indebtedness goal process petitions documented against a similar corporate borrower. Punishment for starting a pre-packaged liquidation goal strategy deceitfully or malignantly to misdirect others, as well concerning the fake organization of the corporate indebted person during the cycle. Offenses including the pre-staging insolvency goal strategy are culpable.

RELATION OF NCLT WITH IBC

In contrast to concerns expressed during the IBC’s creation and later talks regarding the difficulty of quickly installing adjudicating capability, the NCLT is capable of fulfilling the job of adjudication under the IBC. While the NCLT’s present operation has defied expectations from previous insolvency cases, there are clear gaps between how the NCLT operates under the IBC and what is intended by the statute.2 The empirical investigation on whether the NCLT is able to provide judgments within the timeframes required by law, as well as if the judgments are consistent with the function envisioned by the legislation, reveals that there exist gaps. From an adjudicating authority for the Insolvency redressal process of companies and individuals to the power prescribed to NCLT, it can be said that NCLT plays the most important role under IBC. It provides simplicity for financial creditors, operational creditors, and corporations to collect money from debtors.

PROCESS OF INSOLVENCY RESOLUTION

Corporate Insolvency Resolution: During the resolution of Corporate Insolvency, the creditor should record an application with the NCLT for starting bankruptcy redressal procedures. The NCLT will be expected to either acknowledge or dismiss the application within 14 days of documenting the application. When the application has been acknowledged by the NCLT, the administration of the indebted person is suspended and the transitional power, selected by the NCLT and alluded to as the ‘break indebtedness goal proficient’ assumes control over the administration of the corporate debt holder. Further, as soon the application for CIRP is conceded by the NCLT, a ban produces results on the corporate indebted person, which forbids the continuation or commencement of any legal actions against the debt holder, the exchange of its resources, or the requirement of any security interest. Within 30 days of the NCLT admitting the application for CIRP, the interim resolution expert reviews the creditors’ claims and forms the creditors’ committee. The panel of loan bosses then, at that point, names a free individual as the goal proficient, alluded to as the Insolvency Resolution Professional (‘IRP’) to assume control over the administration of the corporate borrower for the rest of the CIRP. Within 180 days of the commencement of the CIRP, the IRP is expected to draw up a goal plan for the restoration of the corporate borrower. Such an arrangement should be supported by lenders holding no less than 75% of the obligation of the corporate account holder.3

CASE LAWS – IBC

In Aditya Enterprises vs Rajratan Exim Pvt. Ltd.4, due to the non-payment of a debt owed to them by a corporate debtor, Aditya Enterprises applied. The adjudicating body stated that just receiving a loan cannot be considered an operational/financial obligation; nevertheless, the purpose of the loan is equally significant. Because the receipt makes no indication of the corporate debtor taking the loan for commercial purposes. The presence of a disagreement does not preclude the occurrence of a default; there is no indication that a due date exists.

In Sree Metaliks Limited and another V. UOI and Anr.5, The petitioner had challenged Section 7 of the 2016 Insolvency and Bankruptcy Code, as well as the provisions governing it, in the 2016 Law of Insolvency and Bankruptcy (Application to the Adjudicating Authority). In a petition lodged under section 7 of the IBC, the petitioner contended that IBC 2016 did not provide any chances to hear from a corporate debtor. The Calcutta High Court stated that the necessity for NCLT and NCLAT to follow natural justice principles may be found in Section 7(4) of the Code and Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. It was decided that the NCLT must provide the financial debtor a reasonable chance to present his or her case before admitting the petition filed under Section 7 of the Code.

In Bank of Baroda V.Rotomac Global Pvt. Ltd and Rotomac Exports Pvt Ltd6 The COC was suggested by the resolution professional for a 90-day extension of the CIRP. The COC, on the other hand, voted against it. As a result, the RP filed for the corporate debtor’s liquidation. The Competent authority held that the resolution to extend CIRP failed because no resolution plan was submitted within 180 days of the program’s start. As a result, the liquidation of a corporate debtor was acknowledged.

CONCLUDING OBSERVATIONS

Since the inception of the Insolvency and Bankruptcy Code in 2016, the issues relating to creditors and debtors have vastly improved. It has recognized the competent authority for the implementation of more efficient laws since the existing insolvency legislation does not demonstrate reliability due to issues such as delays in appointment and permissions, stock of non-performing assets, and so on. It needs to strengthen the process by attracting a broader variety of strategic purchasers who are prepared to bid on assets and present resolution plans following the code. It can also improve by putting in place more and more effective Asset Reconstruction Companies to help with dispute settlement.

References:

  1. https://housing.com/news/ibc-insolvency-and-bankruptcy-code/
  2. https://journalsofindia.com/nclat-ibc-and-companies-act/#:~:text=Its%20role%20under%20IBC%3A%20NCLT%20is%20the%20adjudicating,or%20operation%20creditors%20or%20the%20corporate%20debtor%20itself.
  3. https://gamechangerlaw.com/ibc-2016-overview-of-the-insolvency-and-bankruptcy-code-2016/
  4. https://indiankanoon.org/doc/33528420/
  5. https://indiankanoon.org/doc/164560992/
  6. https://www.soolegal.com/rc/bank-of-baroda-vs-rotomac-global-pvt-ltd-and-roromac-exports-pvt-ltd-cp-no-ib-70-ald-2017-with-ca-no-74-2018-

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Dowry- A “Prohibited” Act

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Marriage- an age-old institution that is considered as a sacramental union is infested with a tradition that took the color of greed over the years and has agonized many- Dowry. 

What Is Dowry?

“Dowry” in simple terms means giving or agreeing to give any property (could be anything from gold, home appliances like fridge, etc., cash, to something as basic as utensils.) by one party to the marriage to another. This exchange could be made before, at, or even after the marriage. Sec-2 of The Dowry Prohibition Act, 1961, excludes dower or mahr from the ambit of dowry in the case of persons to whom Muslim Personal Law (Shariat) applies.

While the definition of dowry as given by The Dowry Prohibition Act, 1961, suggests dowry given by “one party to a marriage” (not specifying which), it is always the bride’s family who gives the dowry. This is a dominant example of the prevalent system of patriarchy. A girl child is considered a burden from her birth by her parents because they would have to give dowry in the future to make her somebody’s wife someday. Hence it is not far-fetched to say that dowry has led to offenses like female feticide, female child trafficking, etc. 

The amount of dowry depends on multiple factors (likely to be offensive) like education of the groom, education of the bride, caste-subcaste, bride’s skills, her beauty, the family status of both the parties in the society, family’s negotiation skills, and the list is inexhaustive.

Current Status 

It may come as a surprise to many, but in earlier times, dowry was given to the bride by her family as means to maintain her independence after marriage. Over the years, it developed as a means to satisfy the greed of her in-laws. Acknowledging the mounting cases of dowry harassment and death, the Indian Parliament enacted The Dowry Prohibition Act, 1961, declaring dowry illegal in India followed by Section 498A, 304B, Indian Penal Code-1860.

Statutory Provisions

  1.  THE DOWRY PROHIBITION ACT, 1961

This act aims at prohibiting giving and taking of dowry. 

  • Section 3, states the penalty of giving or taking of dowry or abetting of giving and taking dowry. 

Penalty- imprisonment for a term not less than 5 years and with a fine not less than 15,000/-, or the amount of the value of such dowry, whichever is more.

Proviso- For adequate and special reasons, to be recorded in the judgment, imprisonment for less than 5 years can be imposed.

{Before the 1984 amendment, the penalty under this section was- imprisonment which may extend to 6 months, OR with fine which may extend to 5000/- OR with both.}

EXCEPTIONS: – Presents, (given without any demand being made for them) at the time of marriage, to the bride or bridegroom. Conditioned on the fact that they are to be entered in a list maintained as per the rules made under this Act.

Provided such presents, when given from the bride’s side are customary and their value is not excessive having regard to the financial status of the person giving.

  • Section 4, states the penalty for demanding dowry. Demanding dowry-directly or indirectly, from parents/relatives/guardians of bride or bridegroom.

Penalty-  Imprisonment for a term which shall not be less than six months, but which may extend to 2 years and with a fine which may extend to 10000/-

Proviso- For adequate and special reasons, to be recorded in the judgment, imprisonment for less than 6 months can be imposed.

  • Section 8 makes every offence under this Act, non-cognizable, non-bailable, and non-compoundable.

{Before the 1984 amendment, the offenses under this Act were non-cognizable, bailable, and non-compoundable.}

  1. CRUELTY BY HUSBAND OR RELATIVE OF HUSBAND, SECTION 498A OF INDIAN PENAL CODE, 1860

In 1983, Chapter XXA was inserted that had only one section i.e., Section 498A.

Section 498A deals with all cases of cruelty towards and harassment of a woman by her husband or his relatives.  

Essential ingredients of this section are: –

  • The victim was a married lady (may also be a widow)
  • She has been subjected to cruelty by her husband or the relatives of her husband.
  • That such cruelty consisted of either

– harassment of a woman to coerce her meeting demand of dowry, or 

– willful conduct by the husband or the relative of her husband of such a nature is likely to lead the lady to commit suicide or cause grave injury to her life, limb, or health.

  • Such injury inflicted is either physical or mental.
  1. DOWRY DEATH, SECTION 304B, INDIAN PENAL CODE, 1860

“Section 304B has been inserted in the IPC by Dowry Prohibition (Amendment) Act, 1986 to combat the increasing menace of dowry deaths.”

Essential ingredients of this section are: –

  • The death of a woman was caused by burns or bodily injury or otherwise than under normal circumstances
  • Such deaths must occur within a period of 7 years of marriage.
  • She must have been subjected to cruelty or harassment by her husband or any of his relatives.
  • Such cruelty should be for or in connection with demand of dowry; and
  • Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 

Punishment: – Imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life.

Section 498A and Section 304B, Indian Penal Code, 1860 are not mutually exclusive. They deal with two distinct offenses. Even if cruelty defined in Section 498A will be the same for Section 304B, yet under 498A cruelty itself is punishable. But under 304B, Dowry Death is punishable that should have occurred within 7 years of marriage and no such period is mentioned in 498A.

Venugopal v. State of Karnataka (1999)- Constant demand of dowry leading to ill-treatment, harassment, and torture of the wife at the hands of the husband soon before her death, led her to take the extreme step of ending her life. The Supreme Court held the husband liable for dowry death u/s 304B, IPC for creating a situation whereby the wife committed suicide within 2 years of the marriage.

The state of Rajasthan v. Jaggu Ram (2009)- The death of the deceased wife took place after one and a half years of her marriage due to head injuries. Cruel treatment and harassment meted out to her immediately after her marriage till her death for bringing insufficient dowry. The Supreme Court held Section 304B to be applicable in the case. 

  1. SECTION 113B OF INDIAN EVIDENCE ACT,1872

To ascertain, whether a person has committed the dowry death of a woman, If soon before her death, she has been subjected to cruelty or harassment related to any dowry demand by that person, the Court will presume it to be a case of dowry death.

Also “dowry death” here has the same meaning as that given in Section 304B of the Indian Penal Code, 1860.

Kailash v. State of Madhya Pradesh (2007) SC- In this case, it was held that the words “soon before” in Section 113B cannot be limited by fixing time limit, it is to be determined by the Courts, depending upon the facts and circumstances of the case.

The combined effect of Section 304B of the Indian Penal Code, 1860 and Section 113B of Indian Evidence Act, 1872- If the prosecution proves the ingredients of Section 304B, then the presumption under Section 113B will operate. This is a rebuttable presumption and the onus to rebut shifts on the accused. 

Misuse Of Dowry Law

Like there are two sides of a coin, law related to dowry has two facets too. On one hand, we advocate that even after so many years of dowry law coming to life, our system has failed to eradicate dowry. On the other hand, there are cases of capturing the soul of these laws in the wrong way. 

Section 498A, Indian Penal Code, 1860 criminalizes cruelty towards a wife and makes it cognizable, non-bailable, and non-compoundable offenses. This section authorizes police to make an immediate arrest of the accused (husband and his relatives) based solely on the victim’s testimony and no other evidence. The flawed crafting of this section provides an opportunity for wrongful incarceration by vindictive women and at the same time makes this provision less effective for the ones actually in need. 

Structuring of this section is such that almost in all cases all the accused (husband as well as his relatives) receive the punishment of life imprisonment, as a result of not taking account of factors like physical or relationship proximity to comprehend whether the accused could actually be a part of such a commission. Due to this lack of clarity, many are undergoing punishment even without having any role in the act in question.

To overcome this shortcoming, in 2014, the Supreme Court in Arnesh Kumar v. the State of Bihar, ordered the police to follow a nine-point checklist before arresting anyone on a dowry complaint to avoid misuse of this section. This too faced backlash, one of the reasons being that it jeopardized the expediency in dowry cases.

Conclusion

Dowry is one of those social evils that has been fought against for a long time now, still, it persists. A problem was recognized and laws against it were drafted. But does it really matter if we have them written on paper only but not completely in practice? The biggest hurdle is the cases being unreported. From the very beginning, we as a society have motivated this tradition to prevail by giving, taking dowry, and watching others do the same. We have breathed life into this tradition time and time again. And today, when some of us advocate against it, most of us have accepted this as a totally normal act. Need of the hour is awareness & courage to put a stop to dahej pratha, acknowledge the anomalies in the laws drafted and look for their proper execution. One needs to realize the gravity of offenses committed in the name of this tradition and that it even leads to the death of the victim. Does it not make you wonder if it is dowry death or a well-thought dowry murder? 

The article has been written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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“Is Freedom of Speech and Expression a Reality or Myth?”

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The Present article has been written by Shrey Hasija, a 1st-year student of Vivekananda Institute of Professional Studies, GGSIPU.

INDIA is a democratic country, and democracy is built on the right of people to express themselves, at least in part. In all democratic societies, freedom of speech is a fundamental human right; it is crucial in decision-making at all levels. When this fundamental human right is jeopardized, people become extremely emotional and will go to great lengths to safeguard it. This can cause social instability and possibly have bad economic consequences. Some feel that freedom of speech should be limited to a certain degree. However,  for a country to be deemed free, its citizens must be able to express their opinions.

Our generation has the luxury of freely expressing ourselves and posting it on the internet. But, how many of us value the opportunity to listen to, speak about, write about, and film what we love? Many governments around the world make it tough to voice your opinions. Even India went through a similar period between 1975 and 1977 when a state of emergency was imposed. People had lost their right to say whatever they wished throughout those 21 months. Meetings and social gatherings were subjected to stringent regulations. The country was deafeningly silent. People felt happy to rejoice as the government removed the state of emergency. That is how you feel when you are empowered. 

However, there is no such thing as absolute freedom of expression. A line must constantly be drawn that cannot be crossed. And it differs from person to person. Every person is free to voice his or her opinions and thereby affect his or her country, if not the entire world, according to the democratic ideal. In light of the current situation, I believe our country is headed on the wrong path in terms of our right to free expression. Many events have occurred in which people’s voices have been silenced. Campaigns are being waged against films, publications are being banned, and people are becoming aggressive towards others who express their opinions. We are stifling our freedom of speech in whatever manner we can, and it appears that this is now a regular occurrence.

It’s all about our viewpoints when it comes to free expression. We have the right to express ourselves as we see fit. Freedom of information, on the other hand, is a vital component of free speech. Disseminating false information is a violation of free speech because misinformation manipulates free speech to further a political objective. People have every right to argue and protest in civilized ways with rationalists, nationalists, and religious zealots.

The Indian constitution promises citizens freedom of expression, yet three recent incidents in India for expressing one’s views in the media against people in authority make one ask if freedom of speech is limited to a privileged few.  In India, an ordinary man’s freedom of speech or expression appears to be purely subjective and rarely a reality. An incident that occurred in Mumbai a few years ago sparked resentment from all sections of the populace. 

Two women were detained in Mumbai, one for posting a comment on Facebook about an entire city being shut down due to Balasaheb Thackeray’s funeral and the other for liking the statement. The local Police jumped into action with an alacrity rarely seen in the execution of the letter of the law, based on a complaint submitted by a local Sena member. To say the least, the recent instance of Gurmehar Kaur and the reaction she got from so-called nationalists is terrible. Perhaps they didn’t see the significance of Ms. Kaur’s statement.  It’s possible they didn’t want to or perhaps Gurmehar is too young to comprehend the implications of her words. 

However, she is still entitled to her viewpoint, and the Indian constitution guarantees her the right to voice it. 

What is evident is that we must advocate for prudence and compassion, or we will undermine the very institution that protects our rights. We must recognize that everyone’s intellectual levels are not the same and that they vary from person to person. Intolerance in any form, however, must no longer be accepted. There is no such thing as a perfect civilization, church, group, or country in the world. It was he who created religion, composed holy texts, established the caste system, established nations, and constructed bombs. We adapt over time since the only constant in the world is change. India, Pakistan, and the United States are not flawless, but I am hopeful that humanity will find its path. 

Freedom of expression is not only necessary; it is essential to our progress; the more it is practiced in a society, the less oppressed its citizens are.

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Anti-Terrorism Laws In India

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The present article has been written by Vanshika Samir, a first-year student at the Rajiv Gandhi National University of Law, Patiala, Punjab, India. 

INTRODUCTION 

Terrorism has increased dramatically in India during the previous two decades. Bomb blasts and terrorist attacks have occurred in several places, including Jaipur, Ahmedabad, and Bangalore, as well as the Mumbai assault on 26/11. Every patriotic Indian has been shocked by the terrorist act. No civilized nation can allow such brutal inhumanity to be tolerated or endorsed in any way, shape, or form. India is dealing with a slew of issues when it comes to managing its internal security. Terrorist actions are on the rise, as are cross-border terrorist activities and rebel groups in various sections of the country. Terrorism has now taken on global proportions and has become a global challenge.

ANTI-TERRORISM LAWS IN INDIA 

Terrorism has had a significant impact on India. The reasons for terrorism in India might range from religious grounds to poverty, unemployment, and a lack of development, among other factors. Many laws have been passed in India; however, they have been met with opposition since they violate people’s fundamental rights. However, in the aftermath of India’s anti-terrorism laws, proponents have praised the legislation, claiming that it has been effective in guaranteeing the prompt trial of those accused of engaging in or aiding terrorism. However, these restrictions have been broken down over time. Anti-terrorism legislation in India has long been a source of contention. One argument is that these regulations infringe on citizens’ fundamental rights, which are guaranteed under Part III of the Constitution. The legislature has passed anti-terrorist legislation in the past, and the judiciary has backed it, albeit reluctantly. The National Security Act of 1980 and the Unlawful Activities (Prevention) Act of 1967 are the current laws in force in India to combat terrorism. Other anti-terrorism legislation has existed in this country at various times in the past. Other anti-terrorism laws are as follows:

The Unlawful Activities (Prevention) Act, 1967

The UAPA was created to address organizations and activities that questioned India’s territorial integrity. The Act’s scope was strictly limited to dealing with threats to India’s territorial integrity. The Act was a self-contained set of laws for declaring separatist organizations illegal, for ensuring judicial adjudication and efficient financial management. The provisions also aim to control places of work of illegal associations and penalize individuals for the offense they commit. The Act has always been approached holistically, and it falls under the scope of the central list in the Constitution’s 7th Schedule. 

The Terrorist and Disruptive Activities (Prevention), 1987

The second major act that came into force on 3 September 1987 was The Terrorist & Disruptive Activities (Prevention) Act 1987 this act had much more stringent provisions than the UAPA and it was specifically designed to deal with terrorist activities in India. When TADA was enacted, it came to be challenged before the country’s Apex Court as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good in the case of Kartar Singh vs State of Punjab (1994) 3 SCC 569. However, there were many instances of misuse of power for collateral purposes. The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in 1995.

The Maharashtra Control of Organised Crime Act, 1999

Enforced on 24th April 1999, this was another major anti-terrorist law. This law was enacted specifically for dealing with the increase in organized crime in Mumbai, especially due to the presence of the underworld. It regulates organized crime and also includes the `promotion of insurgency’ as a terrorist act. As per the provisions, a person is presumed guilty unless he can prove his innocence. 

The Prevention of Terrorism Act, 2002

With the rise of cross-border terrorism, the Pakistani ISI’s ongoing offensive strategy aimed at destabilizing India, and the events of September 11th, it became necessary to enact a unique law to deal with terrorist actions. The Prevention of Terrorism Act of 2002 (POTA, 2002) was enacted as a result. In Section 3 of the POTA, 2002, the terrorist act and the terrorist are explicitly defined, and the Act offers exceptional powers to the investigative agencies. The court has stated that the Act’s necessity is a question of policy and that the court cannot comment on it. To ensure fair use of the provisions of this act, it is imperative to follow the following safeguards- 

  • Without the prior approval of the Central Government or, as the case may be, the State Government, no court can take cognizance of any offense under the Act.
  • Under the Act, no officer lower in status than the Deputy Superintendent of Police can investigate crimes.
  • Under the Act, a confession made before a police officer, not below the level of Superintendent of Police is admissible as evidence if the person is brought before a magistrate within 48 hours with his confessional statement.
  • Any officer who wields authority deliberately or with mala fide intentions is subject to the Act’s penalties. It also provides for the payment of remuneration to individuals maliciously prosecuted against the act.

CONCLUSION 

It is the main attribute of terrorist operations in the form of religious terrorism, according to Indian concerns about terrorism. Religious terrorism refers to acts of terrorism committed by organizations or individuals who are motivated by religious tenets. Terrorist activities have been committed on religious grounds throughout history in the hopes of spreading or enforcing a system of belief. However, there has been an increase in terrorist activities instigated by external forces. The need of the hour is the effective and justified application of anti-terrorism laws. Such provisions provide for stringent measures against terrorism. However, misuse of such legislation often leads to human rights violations. There is a need to strike the right balance between the application of strict measures against terrorism and the protection of human rights. This can be ensured by maintaining a system of checks and balances to ensure that no misuse happens by individuals holding authoritative positions. 

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Rights of Victim under Criminal Justice System in India

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This article is written by Aayukta Sharma, a law student at NIMS University Rajasthan, Jaipur. This article gives an overview of the background and history of victims with today’s circumstances to evaluate the relationship between the victims and the criminal justice system in India. It also includes the rights given to the victims in the Indian criminal justice system.

Introduction

The Ancient period was the golden age for victims of crime. The relationship between crime victims and criminal justice was very unique as the victims could ask for justice as per their wish. The system of retributive justice was present at that time which would mean an “eye for an eye” treatment provided to the victims. However, it had some kinds of elements of restorative justice because the perpetrator undoes the harm done to the victim. [i]

Criminal Justice System from the Ancient Period to Later Middle Age

During the Middle Ages, we can see the influence of the Anglo-Saxon period. During this time the crime was treated as a matter of private revenge. The entry of social leader (e.g., king) was noticed and it was no more the victim alone was given all sorts of rights during this time. But there was also a third party who would be deciding that what sort of punishment or compensation should be provided to the victim. The ultimate decision was taken by the state or the king/leader. The system fines were introduced during this period which went to the state which was paid by the accused with the amount of compensation that went to the victim.

In the later Middle Ages, the crime was considered as social harm and the state assumed complete responsibility. So, the state was considered the main victim. Crime victims were just “pieces of evidence”. It is considered the dark age for victimology.

Background of Rights of Victims Under the Criminal Justice System

The General Assembly of the United Nations adopted the declaration of basic principles of Justice for Victims of Crime and Abuse of Power at its 96th plenary on November 29, 1985. The Declaration constituted an important recognition to set the norms and minimum standards in international law for the protection of victims of crime and also for the rights of victims of crime – access to justice and fair treatment, restitution, compensation, and assistance.[ii] It also observes relevant judicial dicta that have sought to address the needs of victims of crime. The victim of the crime is the person who initiates the criminal justice system by informing the police about the crime, crime scene, accused, and suspects and the officer in charge is duty-bound to register the complaint[iii]free of cost[iv] and also provide a copy of the FIR free of cost. If the officer in charge refuses to register the written complaint, the victim can write to the Superintendent of Police.[v] In case he also refuses or is not entertaining the matter, the victim can file a complaint to the magistrate.[vi] The victim thereafter only participates in the investigation when he is called to confirm the accused’s identity.[vii]

The criminal justice system is responsible for looking after the needs of the victims of rape and other violent crime against women has always been predictable and inadequate.  The place of the victims who are women or children. In imposing the punishments[viii] and shifting burden of proof [ix] the law has failed to address the need of the victim to be treated with dignity, protection from intimidation, to readily access the justice procedure to legal aid and rehabilitation.

It is the right of the victim to get compensation under the criminal procedure code 1898 but it is substantively available to the extent of the fine received by the offender according to the fine specified in the Indian penal code 1860

Victimology and Criminology

Criminology is a broader term where victimology is a part of criminology. Victimology consists of victims, crime victims, victim rights, victim precipitation, etc.[x] The term victimology academically consists of two words – “Victim” and “ology”. It means the psychological study of the victims of crime and the main objective is to restore their mental, physical, psychological, emotional, and financial status as it was before the occurrence of the accident with them. Whereas criminology focuses on the punishment of the criminals and prevents the crime before happening.

Victimology vs Victimization

There is a great misunderstanding between both the words, “Victimology” and “Victimization”. Victimization is the outcome of deliberately taken actions by a person or institution to exploit or harm another. Victimology is the study of Victimization[xi]. The harm includes emotional, psychological, physical damage, economic loss, or sexual injury.[xii]

Victim’s Rights

Victims have very few legal rights as compared to criminals or accused of crimes in the criminal justice system. Victims do not have any right to be notified about the trials, court proceedings, or arrest of the defendant but they have the right to be informed, heard, and present within the criminal justice system. The victim assistance program is virtually non-existent. The core rights of the victim are-

  • Right to apply for compensation
  • Right to a speedy trial
  • Right to attend the criminal proceedings in court
  • Right to protection against harassment and intimidation.
  • Right to prompt return of personal property seized as evidence

Other rights given to the victims by the constitution are-

  • Right to attend the trial and proceeding
  • Right to be treated with fairness, dignity, and respect
  • Be informed of the proceeding and events such as the release of the defendant
  • Be awarded restitution from a convicted offender.
  • Be heard at critical points in the criminal justice system such as sentencing or parole hearings.

Judicial Activism – Landmark Judgments for Victims of Crime

  • The National Human Rights Commission V State of Gujrat 2009[xiii]

The Necessity for considering victim’s rights

  • Alister Antony Pareira v State of Maharashtra 2012[xiv]

Significance of no contract order

  • Delhi Domestic Working Women’s Forum v Union of India[xv]

Legal representatives of direct victims & all sorts of aid to the victims

  • State of Punjab v Gurmit Singh 2002[xvi]

The Necessity for in-camera proceedings

  • Balasaheb Ranganath v state of Maharashtra[xvii] 

Victim’s right to appeal

Conclusion

Over the last two decades, the victims have taken a much more prominent place in the criminal justice system. From the golden age of victims in the ancient era to the current era, Victims struggle a lot to gain their rights within the system. The victims also get defamed and end up in subjugation and are unable to cope with the circumstances or crimes they’ve witnessed even after the punishment to the criminal and compensation to the victim. 

References

[i] http://www.legalservicesindia.com/article/1391/The-Legal-system-in-ancient-India.html

[ii] Clause 4 and 5 of the UN Declaration

[iii] S. 154(1) of Cr. PC. 1973 – Registered as the first information report (FIR)

[iv] S. 154(2) of Cr. PC. 1973

[v] S. 154(3) of Cr. PC. 1973

[vi] S. 190 of Cr. PC. 1973

[vii] S. 9 of Evidence Act 1872 – the evidence gathered by some means of test identification parade is relevant and admissible.

[viii] S.376(2) IPC 1860 – Punishment of rape

[ix] S. 114 A, Evidence Act 1872 -presumption as to the absence of consent where the women raped says that she did not give her consent.

[x] https://www.jusdicere.in/crime-victims-and-victimology/

[xi] https://en.wikipedia.org/wiki/Victimology

[xii] http://www.legalservicesindia.com/article/1349/Victims,-victimization-and-victimology.html

[xiii] National Human Rights Commission vs State of Gujarat & Ors on 1 May, 2009

[xiv] Alister Antony Pareira v State of Maharashtra on 12 January 2012

[xv] Delhi Domestic Working Women’s Forum v Union of India 1995 SCC (1) 14, JT 1994 (7) 183

[xvi] State of Punjab v Gurmit Singh 2002 CriLJ 3210

[xvii] Balasaheb Ranganath v state of Maharashtra on 19 December 2017

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Righteous and Sinful Implications of Censorship in Media

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This article is written by Prateek Chandgothia, a 1st-year law student at Rajiv Gandhi National Institute of Law, Punjab. This article discusses the nuasances of censoring media due to the current circumstances prevailing in India.

In this electronic age with breakthroughs being achieved in the IT sector, media has been revolutionized and various modes of transmission of digital contents have been adopted. These include print media, television news channels, YouTube channels of news establishments, original movies, and web series on various OTT platforms like Prime Video, Netflix, etc. Social media has been transformed into another mode of digital content transmission. After the popular Digital India campaign, the Covid-19 pandemic has furthered this online transition of digital content in India. Liberalization of internet service providers and increased access to the internet in the post-jio era has also facilitated this transition. 

This online transition comes with a very substantial question of regulation, which is ‘censorship of media’. A recent event that transpired along the lines of censorship was an Amazon Prime original series named ‘Tandav’ which received backlash concerning one of its scenes which involved the 2 Hindu deities namely Lord Shiva worrying about the increasing popularity of Lord Ram.[ii] FIRs were registered across various states under the charge of hurting the sentiments of a particular community. The interpretation of the particular scene, although subjective, was censored and removed from the aired web series after instances of extreme backlash based on communal lines. Similar instances have been witnessed in cases of Padmavat[iii] and the advertisement of Tanishq jewelry[iv] which led to large-scale backlash based on communal lines. These events have sparked a public debate concerning the ‘censorship of media’.

Based on the above events, one might perceive censorship as a negative concept in contravention of the fundamental right of speech and expression. However, there have been proponents throughout history, who argued in favor of censorship which includes philosophers like Plato and Joel Fienberg. While Plato propagated censorship as a tool to protect children from ‘evil’ influences and to protect society, Fienberg propagated it as a weapon against bigotry. However, the proponents of censorship were not limited to philosophers or historians. The Hon’ble Supreme Court of India has stated that – “Film censorship is necessary because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. The combination of act and speech, sight and sound in the semi-darkness of the theatre with the elimination of all distracting ideas will have a strong impact on the minds of the viewers and can affect emotions. Therefore, it has as much potential for evil as it has for good and has an equal potential to instil or cultivate violent or good behaviour. Censorship by prior restraint is, therefore, not only desirable but also necessary.”[v] The Apex Court promotes the concept of welfare censorship to this very day by disallowing the mention/ disclosure of a female plaintiff or petitioner in cases against her parents or family members and thereby, preventing the media houses from airing the name of the female on national television or printing it in newspapers. This kind of censorship is considered to deliver welfare and fair justice by eliminating the factor of risk to the aggrieved person.[vi] Based on such observations, one must conclude that censorship is a necessary evil.

Censorship in India, as a concept, has been in contention since the Independence in 1947. The first-ever censorship law was implemented in 1954 as the Cinematograph Act was enacted which established the Central Board of Film Certification and vested unto the members of the body, the power to eliminate offensive or politically subversive content.[vii] The grounds of censorship have evolved over the years, from Independence to the OTT era. In 1970, in the matter of K. A. Abbas vs Union Of India, the Hon’ble Supreme Court of India ruled that –“Cinematographic films in theatres were the most influential media of mass communication affecting the social mind and, therefore, the exercise of censorship under the Cinematograph Act was valid and necessary”.[viii] The press was brought under the ambit of censorship through the Press Council of India Act, 1978 which established the Press Council of India and gave it the power to receive and act upon the complaints regarding the violation of journalistic ethics or misconduct by a journalist or an editor for that matter.[ix]

The concept of freedom of speech and expression goes hand in hand with censorship. Various instances of misuse of censorship have been recorded throughout history. The sedition law has contributed to this misuse of censorship since independence. In a country like India, custodial harassment has been a major issue wherein waiting for the bail to be granted, can lead to long and unfair jail times which leads to grave violation of human rights. The emergency was implemented by the Indra Gandhi government which was 21 months from 1975-1977. It was one of the most censored eras post-independence[x] as censorship was used as a tool to suppress the voices of dissent. The press freedom was significantly curtailed as the media houses were forced to print and air news in favor of the decisions and policies of the government while refraining from reporting news that was critical of the establishment. Any similarity between a film or writing and the then political circumstances was censored. This included Gulzar’s ‘Andhi’ for its similarity to Indra Gandhi’s life and Amrit Nahta’s ‘Kissaa Kursee Ka’ which displayed political satire.[xi] A similar instance was witnessed in 2020 when Hotstar removed a single episode of the show ‘The Last Week Tonight with John Oliver’ for it being critical of the current Prime Minister of India, Mr. Narendra Modi.[xii] These instances have not been limited to India as the governments around the world have started to regulate the new OTT platforms. An episode of the show, ‘The Patriot Act’ by Hasan Minhaj was taken down by Netflix after it entered controversy for criticizing the crown prince of Saudi Arabi, Mohammed Bin Salman.[xiii] Singapore has also regulated the OTT platforms significantly as it witnessed the pulling down of at least 5 pieces of content from the streaming platforms based on the demands of the government.[xiv] In the present scenario, indirect censorship methods like paid advertisements are being used to influence news reporting and hampering journalism  standards. By way of paid advertisement, the government provides incentives to the media houses to refrain from reporting news that is critical of it.[xv] Thus, similarities can be drawn between censorship being implemented for vested interests during different times throughout history.  

Censorship as a concept must evolve and be implemented while keeping in mind the justified level of freedom of speech and expression. Moreover, it is of utmost importance to eliminate instances of censorship wherein a certain smaller group of people, especially the government exercise their power to unfairly censor a piece of information, movie, or web series to transmit favorable propaganda or suppress the voices of dissent. The type of censorship which fulfills these conditions might be considered as ‘soft’ censorship as it protects the rights and interests of individuals rather than encroaching upon the same. It is, therefore, fairly concluded that in the modern era of constant development in technology, censorship is a necessary concept which when used righteously can promote welfare, peace, and security while when used sinfully, can lead to grave harassment of individuals or groups of individuals.   

References

[i] Thelwell, K. (2020, August 8). How Jio Transformed Internet Access in India. The Borgen Project. https://borgenproject.org/internet-access-india/

[ii] Desk, E. H. T. (2021, January 27). Tandav row: All the controversies that have plagued Saif Ali Khan’s Amazon show. Hindustan Times. https://www.hindustantimes.com/entertainment/web-series/tandav-row-as-supreme-court-refuses-to-grant-protection-here-are-all-the-controversies-surrounding-saif-ali-khan-s-amazon-show-101611755000552.html

[iii] Joshi, N. (2017, November 25). What is the Padmavati row all about? The Hindu. https://www.thehindu.com/news/national/the-lowdown-on-the-padmavati-row/article20915252.ece

[iv] BrandEquity, E. T. (2020, October 29). Tanishq Ad Row: A closer look at the controversy. ETBrandEquity.Com. https://brandequity.economictimes.indiatimes.com/news/advertising/tanishq-ad-row-a-closer-look-at-what-the-controversy/78923587

[v] K. A. Abbas vs The Union Of India & Anr, 1971 AIR 481, 1971 SCR (2) 446

[vi] Jain, M. (2021, May 30). SC Directs Masking Of Identity of Petitioner-Girl Seeking Protection Against Parents In Entire Record, All Reports/ Copies of Proceedings. Live Law. https://www.livelaw.in/top-stories/supreme-court-sc-masking-of-identity-of-petitioner-girl-seeking-protection-174923

[vii] Bhatia, U. (2018, July 14). 100 years of film censorship in India. Mint. https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-censorship-in-India.html

[viii] K. A. Abbas vs The Union Of India & Anr, 1971 AIR 481, 1971 SCR (2) 446

[ix] S. (2017, July 7). Regulation of media in India – A brief overview. PRSIndia. https://www.prsindia.org/theprsblog/regulation-media-india-brief-overview

[x] A. (2019, June 25). The darkest phase in Indira’s tenure as PM. The Economic Times. https://economictimes.indiatimes.com/news/politics-and-nation/democracy-interrupted-some-lesser-known-facts-about-emergency-1975-77/the-censorship/slideshow/69940335.cms

[xi] Bhatia, U. (2018, July 14). 100 years of film censorship in India. Mint. https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-censorship-in-India.html

[xii] Staff, T. W. (2020, March 9). John Oliver Criticises Hotstar for Censoring His Show’s Episode on Modi. The Wire. https://thewire.in/media/john-oliver-hotstar-censorship-narendra-modi-episode

[xiii]Alexander, J. (2019, January 1). Netflix removes Patriot Act episode in Saudi Arabia following government complaint. The Verge. https://www.theverge.com/2019/1/1/18163918/netflix-patriot-act-hasan-minhaj-saudi-arabia-episode

[xiv] Staff, R. (2019, August 2). Social media sites block satirical rap video in Singapore after government complaint. U.S. https://www.reuters.com/article/us-singapore-socialmedia-idUSKCN1US0K8

[xv] Withnall, A. (2019, July 20). How Modi government uses ad spending to ‘reward or punish’ Indian media. The Independent. https://www.independent.co.uk/news/world/asia/india-modi-government-media-ad-spending-newspapers-press-freedom-a8990451.html

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