Tag: lawblogs

Introduction

A prostitute is a person who engages in sexual activity with customers in exchange for financial gain. Different countries and even different parts of the same country have different views on prostitution, which can range from being illegal to be legalized and even regulated in some cases. The rules apply the same to business as they do to sexual entertainment. The changing legal and social climate surrounding prostitution has led to a wide range of conclusions across the globe. Prostitution has been viewed very differently by different people. Some see it as a form of cruelty or barbarism towards women and children that contributes to the emerging crime of human trafficking, while others have a very different view. India is home to the second-oldest prostitute industry in the world (after farming). Records from the past attest to its existence.

Whether or not sex workers have any rights and are instead treated as sexual objects is an open question. India has failed to adequately defend the rights of sex workers, despite being a member of various international accords on human rights, including women’s rights, and despite the Indian Constitution guaranteeing people’s rights against discrimination. In light of this, the article will discuss the human rights of sex workers in India and whether or not the Indian legal system recognizes these workers’ rights. Our discussion will also include an examination of the differences and similarities between the prostitution laws of various nations.

Budhadev Karmaskar v State of West Bengal & Others

Budhadev Karmaskar was charged with the heinous murder of a prostitute who refused to engage in sexual activity with him. In 2004, Calcutta High Court ruled that the appellant was guilty of murder, bringing an end to the proceedings. With the proclamation of the judgment of conviction, the appellant filed an appeal with the Supreme Court against the punishment imposed on him. In 2010, Criminal Appeal No. 135 was dismissed due to the Supreme Court’s affirmation of the Calcutta High Court’s ruling and the Supreme Court’s Suo Motto action of converting the appeal into Public Interest Litigation.

Case Facts

In 1999, the appellant Budhadev Karmaskar severely beat the head of a diseased sex worker in Calcutta’s red-light district when she refused to have a sexual encounter with him. In order to protect her sanity and dignity, the decedent’s head was repeatedly struck against the floor of a room, which resulted in her brutal death. Due to this act, the appellant was found guilty of the heinous crime of murdering a sex worker on charges of assault leading to death. Both the High Court and the Supreme Court upheld the conviction on the basis that sex workers should not be looked down upon, but should be able to engage in prostitution with dignity and free will, and not through coercion or deception.

The Supreme Court has also taken corrective measures to reinstate the current prostitutes who were forced to engage in prostitution against their will by constituting a panel led by Senior Advocate Mr. Pradip Ghosh, with 4 other panel members and other staff members assisting them. For this, the panel has proposed that the Central Government, the State Government, and the Union Territories each contribute Rs. 10,000,000/-, subject to approval by the Supreme Court, in order to teach vocational and technical skills to sex workers so that they can earn a living and be rehabilitated into society with dignity.

Issues

1. How should Article 21’s reach and its definition of “life” be applied to guarantee that sex worker and their progeny have access to the right to live with dignity?
2. To choose a location for the panel’s accommodations.
3. How can sex workers be rehired, saved, and rehabbed into a safer setting?

Justice Markandey Katju and Gyan Sudha Mishra, who made up the judicial bench, made their decisions on the issues raised in this order.

The institution of SC validates the sex labour industry

Sexual servitude is not illegal in India. Sexual service workers should be treated with respect and given the same legal protections as everyone else. This is what a three-judge bench of the Supreme Court (SC) ruled here. It is a historic ruling. It’s a huge relief for the sexual service providers who endure extreme exploitation

Paid sex work is not illegal in India

The Supreme Court of India has ruled that sexual labour is not among the activities that are prohibited by Indian law. Operating a brothel, soliciting in a public place, benefiting financially from the labour of a sex worker, and keeping or frequently associating with a sex worker are all illegal under the Immoral Traffic (Prevention) Act or ITPA. As has been widely reported in the media, the SC does not consider sex work to be a legitimate occupation. What the Supreme Court of India is saying is that everyone, regardless of occupation, has a right to live a dignified life under the Indian Constitution and that this constitutional protection must be taken into account by authorities as they enforce immoral traffic prevention laws.

What it proposes is that people should not verbally or physically abuse sex workers or coerce them into performing sexual acts, even though they are widely reviled and stigmatized by society. The Supreme Court rules that people who work in the sex industry should be treated with respect. The court ordered that law enforcement officers refrain from interfering with or prosecuting sex workers who are adults and who have given their informed consent. Article 21 of the Constitution guarantees every citizen the right to a life worthy of his or her profession.

The law should treat sex workers the same as any other profession. A uniform application of criminal law is required, regardless of age or level of consent. Since sex work is not yet illegal in India, the police should not interfere or take any criminal action against the worker if they are an adult and have given their informed consent.

The Supreme Court’s 2011 decision stands

The Supreme Court reaffirmed its ruling from Budhadev Karmaskar (2011), which held that sex workers have the same basic human rights as anyone else. In 2011, SC convened a panel to investigate how best to protect sex workers from exploitation, help those who have been trafficked recover, and create a supportive environment for those who want to keep working in the sex industry.

The government has published a bill titled “The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill” in 2016, 2918, and 2021, but has taken no further action on it despite having reservations about four of the panel’s ten recommendations. So, until new legislation is introduced on the subject, the court issued an order mandating the immediate implementation of the six recommendations with which the central government has no objections.

Rights of Sex Workers

1. The law should treat sex workers the same as any other worker. Both the age of majority and the presence of informed consent must be treated equally under the law. The police have no right to intervene or undertake any kind of illegal activity if it is obvious that the sex worker is an adult and is giving informed consent.
2. Many people fear that police have a biased attitude toward sex workers. When a sex worker reports a crime, sexual assault, or other violation, the police must investigate the allegation thoroughly and take appropriate action.
3. According to “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence,” Ministry of Health and Family Welfare, and Section 357C of the Code of Criminal Procedure, 1973, any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance (March 2014).
4. Since voluntary sex work is not illegal and only the operation of a brothel is illegal, sex workers should not be arrested during a brothel raid.
5. State governments may be asked to survey all ITPA Protective Homes, with the goal of expediting the review and release of cases involving women held against their will as adults.
6. It’s been reported that law enforcement’s treatment of sex workers is frequently violent and hostile. As if they belong to some unrecognized group whose rights are ignored. All sex workers have the same constitutionally protected rights as any other citizen, and the police and other law enforcement agencies should be trained to respect those rights. The police should not verbally or physically abuse sex workers, force them to engage in sexual activity, or subject them to any form of violence.
7. The Press Council of India should be urged to issue guidelines urging the media to exercise extreme caution when reporting on sex workers’ identities in the wake of the arrest, raid, and rescue operations, whether the workers are victims or suspects, and when publishing or airing photographs that could reveal their identities. In addition, the media should be punished for broadcasting photos of sex workers with their clients under the guise of documenting a rescue operation in violation of the recently enacted Section 354C, IPC, which makes voyeurism a criminal offence.
8. Precautions taken by sex workers to ensure their own safety on the job (such as the use of condoms, etc.) must not be considered illegal or evidence of criminal behavior.
9. When making decisions about sex work, the federal and state governments should consult with sex workers and/or their representatives. This includes the creation of new policies and programs for sex workers as well as the revision or overhaul of existing legislation. They can be consulted before any decision that could affect them is made, or they can be given a voice on the decision-making panel.
10. Workshops should be held by the Central Government and the State Governments through the National Legal Services Authority, State Legal Services Authority, and District Legal Services Authority in order to educate sex workers about their rights regarding the legality of sex work, the rights and obligations of the police, and what is permitted/prohibited under the law. Sexual service providers should be made aware of their legal rights and how to exercise them to protect themselves from exploitation by traffickers and police.
11. No child of a sex worker should be separated from the mother on the sole basis that she is in the sex trade, as was already recommended in the 6th interim Report dated 22.03.2012. Furthermore, it should not be assumed that a minor who is living in a brothel or with sex workers has been trafficked.
12. If the sex worker claims the minor is her son or daughter, the child should not be forcibly separated from the sex worker pending the results of DNA testing. Mr. Jayant Sud, the learned ASG, has presented evidence that the Government of India has some reservations about the panel’s recommendations (with the exception of paragraphs 2, 4, 5, 6, 7, and 9). In addition to implementing the panel’s recommendations as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act. This includes acting in strict compliance with the recommendations made in paragraphs 2, 4, 5, 6, 7, and 9.
13. Article 21 of the Indian Constitution guarantees every citizen the right to a dignified life, regardless of one’s occupation. Authorities tasked with enforcing the Immoral Traffic (Prevention) Act,1956 must do so with respect for the constitutional rights guaranteed to every citizen. After the summer break, we’ll get to work on the rest of the panel’s suggestions.

Conclusion

It is time to realize that getting rid of people who work in prostitution and outlawing prostitution practices won’t end the plight of people who work in prostitution; instead, it will only make their conditions worse because they will be forced to work in secret and will be mistreated in all situations because the act of prostitution won’t be recognized by the law. Since the act of prostitution won’t be recognized by the law, there is no legal status that will facilitate benefiting from and correcting the wrongs, in conclusion, the rehiring of people who have been exploited in the sex industry, whether they are prostitutes, sex workers, or victims of the sex trade, is a matter of right and not of sympathy or privilege.

This article is written by Uddeshya Tiwari, 3rd Year LLB student from Bharati Vidyapeeth University (New law College), Pune.

INTRODUCTION

The Energy Conservation (Amendment) Bill, 2022 was passed on the 3^rd of August’22. The passage of the Energy Conservation (Amendment) Bill, 2022 by the Lok Sabha is a significant step toward reaching India’s climate targets. The bill is projected to contribute significantly to India’s NDCs, which are the country’s pledges to support environmental measures as per the Paris Agreement. The bill aims to mandate the use of non-fossil sources of energy and feedstock, such as green hydrogen, green ammonia, biomass, and ethanol; create Carbon Markets; bring large residential buildings under the Energy Conservation regime; expand the range of the Energy Conservation Building Code; modify penalty provisions; increase members on the Bureau of Energy Efficiency’s governing council, and empower State Electricity Regulatory Commissions. In its proposal, the Union government stated that a legal system for an energy market was required to accomplish the goal of incentivizing emission reduction activities, resulting in higher private sector investments in renewable energy. The objectives of the bill include:

1. Lower India’s reliance on fossil fuels in order to reduce the country’s carbon footprint.
2. To expand India’s carbon market and promote the use of clean technology.
3. To satisfy its Nationally Determined Contribution (NDCs), as outlined in the Paris Climate Agreement, by 2030.

The reasons for passing the bill are as follows:

1. In fulfillment of its NDCs as per the Paris Climate Agreement, India has pledged to decrease its economy’s carbon intensity by 33-35% by 2030 compared to 2005 levels.
2. India has also pledged to generate more than 40% of its power from non-fossil fuel sources by 2030.
3. India has promised to develop an additional carbon drain for 3 billion tons of Carbon dioxide by expanding its plant and forest cover in order to lower its Carbon footprints to 550 metric tons by 2030.
4. To meet the COP26 summit’s put in commitments in 2021.
5. To boost non-fossil generating capacity to 500 GW by 2030.
6. Using renewable energy sources to meet 50% of India’s power requirement.
7. To reduce the Indian economy’s carbon intensity by 45%.
8. From 2021 to 2030, India’s total anticipated carbon emissions should be reduced by one billion tonnes.
9. To reach a net zero (carbon emissions) target by 2070.

AMENDMENTS TO THE BILL

The amendments brought about the aim to increase the amount of renewable energy while also penalizing industrial offenders for carbon emissions. The bill’s provisions will aid in increasing renewable energy usage and will have an economic impact. Using the legislation to set strong industrial targets and standards in the future could help India achieve its developmental, energy, and climatic goals. Following is the list of amendments that the law brought about:

1. To oblige by the use of non-fossil fuel sources of energy: The Act gives the central government the authority to set energy usage requirements. The Bill also stipulates that the government can mandate designated users to fulfil a certain percentage of their energy usage from non-fossil sources. Such users in particular include industries (chemical, mining, petrochemicals, coal, etc.), commercial buildings, and the transport sector. Any violation of the order so passed shall attract a penalty up to rupees ten lakhs.
2. Carbon Trading:  The bill gives the federal government the authority to design a carbon credit trading program. A program that denotes a tradable permit to emit a certain amount of carbon dioxide. Carbon credit certificates may be issued by the central government or even any authorized agency to entities that have registered for and are following the scheme. The entities will be able to buy and sell the certificate.
3. Energy conservation for buildings: The code specifies energy usage norms in terms of surface. The Bill amends this to include an ‘energy conservation and environmentally friendly building code.’ This new code will establish standards for energy savings and conservation, the use of renewable power, and some other criteria for green buildings.
4. Composition of the governing council of BEE: The Bureau is governed by a governing council of 20 to 26 members. These include secretaries from six departments, representatives from regulatory bodies such as the Central Electricity Authority and the Bureau of Indian Standards, and a maximum of four members representing industry and consumers. Instead, the Bill specifies that the number of lawmakers will range from 31 to 37. It raises the total number of secretaries to twelve. It also allows for up to seven representatives from industries and consumers.
5. SERC’s powers are regulated: The Act authorizes State Electricity Regulatory Commissions (SERCs) to adjudicate fines under the Act. The Bill also states that SERCs may issue regulations to carry out their duties.
6. Vehicle and vessel energy consumption standards: The Act allows for the specification of energy consumption standards for equipment and appliances that consume, create, transfer, or supply energy. Vehicle makers that violate fuel consumption standards may face a fine equivalent to Rs. 50,000 for every unit sold.
7. Applicability to residential structures: According to the Amendment, the energy saving code pertains to commercial buildings that are erected after the code’s notice, and have a basic connected load of 100 kilowatts (kW) or contractual load of 120-kilovolt amperes (kVA).

ANALYSIS

The first amendment protections would have the greatest impact on India’s industrial sector. The government’s decision to finally implement non-fossil energy targets in sector is a good one. However, it is not a new phenomenon, as several major industries have previously made significant investments in converting to renewable energy. Some of the biggest issues include the periodicity of renewables (particularly solar and wind), which means that the peak time of generation may not coincide with the peak time of demand in industries. This leads to a second issue of not possessing enough affordable storage technology to balance demand and supply for all sorts of industries, particularly those that operate continuously. The changes call for the use of renewable fuels such as green hydrogen and green ammonia. So, the targets for the use of these gases in various areas may be established. However, before setting targets for such fuels in businesses, the government must allow certain profitable study and development and experiments on the ground. This will provide an accurate view of the technical and financial viability. The legislation aims to accelerate the green transformation by allowing the government jurisdiction over energy consumption. Article 6 of the Paris Deal, a legally enforceable global climate change agreement, also establishes a solid foundation for the implementation of international carbon markets to decrease global greenhouse gas emissions whilst guaranteeing transparency and accountability. The Bill expands the range of energy conservation standards for buildings while narrowing the scope of energy efficiency standards for devices and appliances. It creates a framework inside which energy savings can be transferred between enterprises that are fuel efficient versus those whose energy usage exceeds the government’s maximum.

CONCLUSION

Union Power Minister K Singh introduced the bill in the lower chamber of Parliament. While seeking House support, Power Minister referred to the Energy Conservation Amendment Bill as “the legislation for the future.” The bill’s suggested revisions are said to increase India’s commitment to climate change. The primary goal of the Energy Conservation (Amendment) Bill 2022 is to lessen the country’s reliance on fossil fuel generation. The secondary goal is to build India’s carbon market in order to facilitate trading and encourage the use of sustainable technology and energy efficiency improvements. To escape an environmental disaster, governments around the world are increasing their commitments to climate action.

This article is written by Shraddha Vemula, a second-year B.B.A. LLB student at Symbiosis Law School, Hyderabad.

INTRODUCTION

The Rome Statute of the International Criminal Court (“the Rome Statute”), which was ratified by 120 nations on July 17, 1998, led to the creation of the International Criminal Court. Following the Rome Statute’s entry into force on July 1, 2002, governments made the first-ever decision in human history to agree to a permanent international criminal court’s jurisdiction over the prosecution of those responsible for the most heinous crimes committed on their soil or by their citizens. The International Criminal Court does not substitute for domestic courts.

The Rome Statute mandates that each State exercise its criminal jurisdiction over those who commit transnational crimes. Only in cases where a State is unable or unwilling to conduct an honest investigation and impose just punishments on the criminals may the International Criminal Court step in. The main goal of the International Criminal Court is to contribute to the prevention of such crimes by helping to end impunity for those who commit the most heinous crimes that have an impact on the entire international community. In the long run, a knowledgeable public may contribute to ensuring that international justice is upheld and applied.

HISTORICAL PERSPECTIVE

Some of the most heinous crimes were committed throughout the wars of the twentieth century. Sadly, many of these violations of international law have gone unpunished. The Nuremberg and Tokyo tribunals were established after World War II. The UN General Assembly understood the necessity for a permanent international court to handle the kinds of atrocities that had recently happened when it established the Convention on the Prevention and Punishment of the Crime of Genocide in 1948.

After the end of the Cold War, the idea of a global criminal justice system reappeared. However, the world saw atrocious crimes being committed on the soil of the former Yugoslavia and Rwanda while the United Nations was considering the ICC Statute. The United Nations Security Council established ad hoc tribunals in each of these situations as a response to these atrocities. These events unquestionably had an impact on the choice to hold the Rome-based conference that established the ICC in the summer of 1998. On July 17, 1998, a meeting of 160 nations established the first treaty-based permanent international criminal court. The Rome Statute of the International Criminal Court is the agreement that was adopted during that conference.

The Assembly of State Parties, which convenes at least once a year, defines general guidelines for the Court’s management and performs an annual assessment of its activities. The state parties review the activities of the working groups they established, as well as any other issues relating to the ICC, at these sessions. They also discuss new initiatives and approve the ICC’s annual budget. All of the regions are represented by the over 120 state parties to the Rome Statute, including Western Europe, North America, Asia Pacific, Latin America, Eastern Europe, and Africa.

FUNDING

The Court accepts voluntary donations from governments, international organizations, people, businesses, and other entities in addition to the majority of state parties that pay its costs.

VOTING POWER & COMPOSITION

• The Assembly of state parties is the administrative, oversight, and legislative body of the Court, and it is made up of one delegate from each state party.
• Every attempt must be taken to reach a consensus on all issues, and each state party has one vote. Decisions are voted on if consensus cannot be obtained.
• The president and two vice-presidents of the Assembly are chosen by the members to serve three-year terms.

WORKING OF ICC

• Every state party to the Rome Statute has the right to ask the prosecutor’s office to conduct an investigation. An investigation into crimes committed on its territory or by one of its residents may likewise be requested by a State that is not a party to the Statute and agreed to. Additionally, the UN Security Council has the authority to send this case to the Court.
• When a Public Prosecutor’s Office receives pertinent information about the defendant and determines that there is cause to pursue an investigation, and the crime involves residents of a State Party or State that has acknowledged ICC jurisdiction or the crime is committed on the territory of any such State, the Prosecutor may launch an independent investigation. Such information may be provided by people, intergovernmental and non-governmental organizations, or other reliable sources. However, the prosecution must get the go-ahead from the Pre-Trial Chamber judges before an investigation under certain circumstances may start.
• After carefully examining the information at hand, the Public Prosecution determines whether an inquiry is adequately substantiated. Therefore, it must establish if war crimes, crimes against humanity, or genocide has been committed, as well as whether they occurred after July 1, 2002. The prosecution must confirm whether a legitimate investigation or trial of the crime’s perpetrators is being carried out by any national entity.
• The prosecutor’s office dispatches its detectives to areas where crimes are alleged to have occurred, to gather evidence. Researchers must take precautions to ensure that witnesses and victims are not in danger. The prosecutor’s office often requests assistance from governments and international organizations. The goal of the investigators is to establish a subject’s guilt or innocence.
• If there are good grounds to believe that a crime has been committed within the ICC’s jurisdiction, only a pre-trial chamber may, upon the start of an inquiry, issue an arrest warrant or summons to appear.
• Upon the issuance of an arrest warrant, the Registrar is required to communicate applications for cooperation requesting the detention and rendition of the suspect to the State concerned or other States, depending on the ruling of the judges in each case. After the individual has been detained and the tribunal has been informed of this, the court assures that the person will be given a copy of their arrest warrant.
• The suspect makes his initial court appearance not long after arriving in The Hague. The first hearing confirms that the suspect was correctly identified in the Pre-Trial Chamber, ensures that the suspect is aware of the charges against him or her, confirms the language in which the hearing should be conducted, and specifies the day on which the hearing of charges will start.
• Before the trial begins, the judges of the Court consider any procedural issues that the parties might raise. They also schedule sessions to address these issues in advance of the trial so that it can proceed fairly and quickly.
• Throughout the trial, both the prosecution and the defence counsel have the opportunity to present their cases. The prosecution is required to present evidence to the court in order to prove the accused’s guilt beyond a reasonable doubt. Documents, other tangible objects, or witness declarations may serve as proof. The prosecutor must also be informed of any evidence indicating the defendant is innocent. Initial case presentation and witness testimony are requested by the prosecutor. After each witness has been questioned by the prosecution, the defence attorney has the opportunity to question the witness as well. After the prosecutor has presented all of the evidence, it is the accused’s chance to present a defence with the assistance of the counsel of their attorney.
• The judges determine the defendant’s guilt after hearing from the witnesses and the victims and having their testimonies reviewed by the prosecution and the defence. The sentence should be made public and wherever it is appropriate if the defendants, victims, or their legal representatives have taken part in the proceedings.

INTERNATIONAL CRIMINAL COURT RESTRICTIONS

The International Criminal Court’s operation is subject to the following restrictions and conditions:

• As there is no specialized police force or authority in place for the ICC, the organization depends on several nations to arrest and transfer guilty parties to prison facilities.
• The ICC selects its cases with great care.
• The legitimacy of the judges and ICC prosecutor is not routinely checked.
• The International Criminal Court has previously been charged with favouring powerful nations.
• With ICC, there is a lack of both people and financial resources.
• It has been charged with serving as a vehicle for western imperialism.
• For the ICC to be functional, state cooperation is required. This makes it less effective since criminals can seize power and escape being brought to justice by the ICC.

INDIA’S RELATION WITH ICC

• India declined to ratify the Rome Statute for the reasons listed below:
• Nationwide objectives
• State Authority
• Finding unbiased prosecutors is difficult
• The collection of evidence is difficult.
• Crime explanation

PROMINENT CASES

• Muammar al-Gaddafi: In 2011, the Security Council submitted the Libyan situation to the ICC on the basis of claims that the Libyan leader was responsible for the deaths of unarmed civilians during the Arab Spring protests. In June 2011, the court issued arrest warrants for Qaddafi, his brother-in-law, and his son. But he fled, and before he could be found, he was slain. The son of Qaddafi, Saif al-Islam, is still at large.

• Uhuru Kenyatta: The 2010 violence that claimed more than 1000 lives was the subject of an inquiry by the ICC. Five other prominent political figures, including Kenyatta, were identified as suspects in crimes against humanity and war. As Kenyatta won the presidency in 2013 with William Ruto, another ICC suspect, as his running partner, the inquiry went on. In 2014, the ICC dismissed its allegations against Kenyatta, and in 2016, it dropped its charges against Ruto. The prosecutor’s office also asserted that the Kenyan government was unhelpful and that the case collapsed as a result of witness manipulation.

CONCLUSION

To end clemency for the most egregious crimes of concern to the international community and to aid in their prevention, the International Criminal Court (ICC) was founded. The court’s role as a protector of individual rights in the new humanitarian international order, however, is in jeopardy due to a severe enforcement issue. The increasing relegation of the political issues of the affected populations in the post-conflict zones to the background of international criminal proceedings, in addition to the ICC’s enforcement issues, threatens to make the entire organization obsolete.

Achieving the important objectives of international criminal law requires the existence of effective democratic institutions at the national level because the vast majority of contemporary conflicts are likely to be internal wars that break out in opposition to authoritarian rule or response to repressive and undemocratic governments. Justice for atrocity victims and nation-building may appear to be at odds, but a practical approach to international criminal justice administration can accomplish the former while also ensuring the required democratic framework for the latter.

This article is written by Aditi Jangid, 1^st year law student pursuing bachelor’s degree from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

The terms ‘environmental, social, and governance’ are referred to as ESG. Sustainability is viewed holistically by ESG, who believe that it encompasses more than just environmental concerns. The ideal way to define ESG is as a framework for stakeholders to understand how an organization is handling opportunities and risks connected to environmental, social, and governance criteria. Although the word ‘ESG’ is frequently used in relation to investing, other parties including the investment community, clients, partners, and staff are considered stakeholders. They’re all becoming more and more curious about how sustainably an organization operates.

PRINCIPAL POINTS

• ESG is a framework that aids stakeholders in understanding how a company handles opportunities and risks related to sustainability issues.
• ESG has developed from earlier movements that prioritized corporate generosity, pollution reduction, and issues of health and safety.
• ESG has altered many capital allocation and investment decisions.

ESG

1. Environmental: The environmental impact(s) and risk management procedures of an organization are referred to as environmental criteria. These include the firm’s overall resilience to physical climate threats, stewardship over natural resources, and direct and indirect greenhouse gas emissions (like climate change, flooding, and fires).
2. Social: The connections an organization has with its stakeholders are referred to as the social pillar. An organization’s impact on the communities in which it operates and on supply chain partners, particularly those in developing economies where environmental and labour standards may be less stringent, are other examples of factors that a firm may be measured against. These factors include metrics for human capital management (such as fair wages and employee engagement metrics).
3. Governance: Governance describes the direction and management of a business. ESG analysts will work to gain a deeper understanding of how shareholder rights are perceived, how incentives for leadership are related to stakeholder expectations, and what kinds of internal controls are in place to encourage leadership accountability and transparency.

SOCIAL ASPECT OF ESG

The social benefits of ESG go beyond providing access to goods and services for various social groups. It also extends beyond offering work to everyone, regardless of gender, colour, religion, or other characteristics. Despite their importance, these things do not entirely define what it means to be socially responsible.

However, the social impact extends beyond the immediate environment. Additionally, it covers how the organization treats and cares for its personnel. this covers things like paid maternity leave, paid sick leave, paid time off, and pay parity, among other things. All of these factors have an impact on the workers, their families, and their social interactions.

WHY IS ESG IMPORTANT IN TODAY’S WORLD?

We can all agree that having an ESG policy at a company is a good thing. However, it’s crucial to keep in mind that while these developments are positive, they aren’t yet complete and shouldn’t be fully anticipated from such a young movement. While we should support these initiatives, we shouldn’t expect them to be miracles; rather, they should be the beginning of miracles. These initiatives indicate strides in the right direction. People today are becoming more conscious of how their activities impact everyone and everything in their environment. It’s time to take matters into our own hands and take action if we want a different future for everyone—including ourselves, our children, the earth, and all living things.

ESG’s IMPORTANCE IN THE BUSINESS?

There are several reasons which show that ESG is important to a business. It is an important factor in company performance and is the best indicator of environmental, social, and governance success.

• It might enhance a business’s standing and image, which might draw in new investors.
• By introducing new legislation, governments all across the world have the power to influence the triple bottom line.
• By requiring innovation from businesses, it creates a variety of fresh options.
• It benefits the environment, which benefits your grandchildren and the future generations of your family.

WHAT ARE ESG FUNDS?

ESG funds are essentially funds where money is invested in the bonds and stocks of businesses that do well on metrics including the environment, the social sector, and corporate governance. It made investments in businesses that use environmentally friendly practices. Here, the company’s sustainability is evaluated in light of ESG considerations. It will only cover sovereign bonds from nations with high sustainability ratings when it comes to bonds.

IMPORTANCE OF THE FUNDS

• First of all, if a company is sustainable, it demonstrates a greater level of social and financial responsibility. It is crucial because only investor pressure will force firms to act responsibly toward the community.
• This demonstrates how important ESG funds are to the community. As the government focuses more on renewable energy and environmental challenges, it is significant from the investor’s perspective. Additionally, it is anticipated that in the future, companies with significant environmental pollution levels will be subject to the tax.
• More ecologically conscious, healthful, and natural products are becoming more popular among consumers, who are also changing their lifestyles. Companies must make decisions accordingly as a result of the government’s stricter governance regulations.

TOP ESG FUNDS IN INDIA

1. SBI Magnum Equity ESG Fund – This is the ESG segment’s oldest available fund. This fund has been around for at least 8 years. It debuted on January 1st, 2013. Its fund expense ratio is 1.29%, which is greater than that of other funds in this category. This fund has given an annual return of 15.84% since it was founded.
2. ICICI Prudential ESG Fund- This fund was officially launched on January 22, 2020. It has been around for almost 1 year and 8 months. On average, it has given a return of about 39.35%. It has generated a return of about 60.52% over the past year. Avenue Supermarts Ltd., Wipro Ltd., Bajaj Finance Ltd., Tata Consultancy Services Ltd., and Nestle Ltd. have received the majority of their investments. The expense ratio for this product is 0.48%, which is lower than what other thematic ESG funds charge.
3. Quantum India ESG Equity Fund- It is a medium-sized fund with 1920 crores of rupees in assets under management. On September 21st of last year, the fund was established. The expense ratio it charges, 0.6%, is comparable to that of other ESG thematic funds in this market. Compared to its competitors in this market, this fund has a lower exposure to the financial and technological sectors, investing its money in industries including FMCG, chemicals, healthcare, and financials. Regarding the returns, since its debut, it has been able to produce returns of 42.59% annually. The portfolio allocation for this fund is split 95.9% into equities, 0.02% into debt, and 4.08% into other alternatives.

WHAT IMPACT DOES ESG HAVE ON THE ECONOMY?

ESG is resulting in a more sustainable society and an improved environment. It is helping to lower carbon emissions across major economies, reduce deforestation and water waste through better irrigation practices, improve energy efficiency within companies, and create a circular economy. Through its influence on companies, ESG is increasing corporate transparency and accountability. It is empowering consumers to make more sustainable decisions about the products they buy and the companies they support.

WHY FIRMS IN INDIA SHOULD FOCUS ON ESG?

India is seeing an increased focus on ESG. According to a recent report by IT industry group Nasscom and Boston Consulting Group, global companies’ growing efforts in enhancing their environmental, social, and governance goals (ESG) will boost revenue for Indian technology and services companies. Furthermore, several outside factors contributed to the adoption of ESG initiatives by digital companies. Several sizable multinational corporations are requiring that vendors adopt specific ESG objectives to compete for their business. Investment in ESG is a business necessity for organizations. Start-ups are being pushed to focus more on incorporating these into their overall strategy by investors’ requests for them to establish an ESG strategy.

While the larger businesses already had well-defined objectives and an ESG roadmap in place, it would work with the smaller businesses to integrate these into their strategic priorities, begin the process of internal adoption, and develop customer-facing solutions. It was crucial to comprehend the techniques that, given the company’s size and business aims, would apply to it.

Indian enterprises are being forced to reconsider their strategy as a result of the uncertain state of the Indian economic environment and the amplified effects of many environmental and societal disruptions. ESG is developing as a concept to produce long-term value for all stakeholders. The COVID-19 pandemic has highlighted the value of ESG as a fundamental strategy for long-term corporate resilience. Businesses are considering moving beyond non-financial reporting and beginning to report using an integrated profit and loss approach, which aims to correlate or monetize the favourable and unfavourable effects of business operations and products through a variety of capitals, thereby assisting in the creation of long-term value.

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REFERENCES

1. What is ESG and why is it important, available at https://www.esgthereport.com/what-is-esg-and-why-is-it-impor

This article is written by Aditi Jangid, a 1^st year law student pursuing her bachelor’s degree from Delhi Metropolitan Education (Affiliated to GGSIPU).

Introduction

The Constitution of the Republic of India is the largest in the world. It describes India as a Sovereign Socialist Secular Democratic Republic, which has a parliamentary system of governance. The Indian Constitution was adopted on the 26^th Day of November 1949 and was officially enforced from 26^th January 1950. It took 2 years, 11 months, and 18 days for the constituent assembly to write the constitution. The Indian Constitution is a living document and is the supreme source and authority of law in India, but since its creation, the Constitution has been amended multiple times. Beginning with 395 Articles and 8 Schedules, it presently remains stands at 450 Articles and 12 Schedules resulting from 105 amendments. The 1^st Amendment to the Constitution was made in 1951, whereas the most recent, 105^th Amendment, was made in 2021.

Both rigid and flexible, the Indian Constitution is virtually amendable but difficult to change. The Indian Constitution stipulates that the government may amend the constitution as per Article 368. There are two distinct kinds of amending procedures: rigid and flexible. It is highly challenging to modify the Constitution under the rigid system. The U.S., Canadian, and Australian Constitutions are listed under the rigid system, whereas, the flexible approach is how the Constitution can be amended. A provision must be made in any of the houses in accordance with Article 368 of the Indian Constitution, and it must later be approved by a simple majority or a substantial majority. The resolution will be sent to the president seeking approval if a vote passes it.

Three unique amendment techniques, which blend flexibility and rigidity, are included in the Indian Constitution.

• Simple majority approval; is required to amend some sections, which is akin to adopting a regular law. For instance, adding new states, changing the boundaries of states, changing citizenship requirements, etc.
• The special majority’s amendment; According to Article 249, a majority of two-thirds of members is necessary for a vote. A special majority is needed to adopt Rajya Sabha resolutions that are intended to become laws for the State list.
• Special majority and ratification by at least half of the State Legislatures; the articles, such as those governing the election of the President, the subjects included in the Seventh Schedule, the relationship between the Centre and the States, etc., may be amended.

The Supreme Court held in the 1973 case of Kesavanand Bharati v. State of Kerala that the Parliament could not alter essential clauses that make up the fundamental structure of the constitution. Ideologies of the constitution that are necessary for its existence. Free and fair elections, the federal form of the country, judicial oversight, separation of powers, and so on. It indicates that the Constitution’s fundamental legal principles and founding principles serve as its cornerstone.

Important Amendments to the Indian Constitution

1. The First Constitutional (Amendment) Act, 1951 – On June 18, 1951, India’s first constitutional amendment came into effect. All subsequent constitutional amendments followed the model set by this one. The ninth schedule Articles 31A and 31B, and numerous other articles were changed or added because of the first amendment Act. The following Articles were modified by it: 15, 19, 85, 87, 174, 176, 341, 342, 372, and 376. The Acts that make up the ninth schedule are shielded from judicial review. This means that neither the acts nor their legality may be said to violate fundamental rights as the judiciary’s review of parliamentary actions was not effective for the acts as per the ninth schedule, this made it simpler and more straightforward for the government to carry out its objectives through the legislative process of the parliament. They did not need to be concerned about the judiciary disagreeing as a result. Indian people are free to engage in any type of trade or company they choose under Article 19(g). The amendment stated that the nationalization of any trade or enterprise by the state is permitted if it complies with the following requirements and is in the interests of public order, friendly relations with other countries, and state security, the provocation to execute an offence, defamation, and court contempt.
2. The Fourth Constitutional (Amendment) Act, 1955 – The first constitutional amendment and the fourth amendment both address issues concerning property, land acquisition, and zamindari eradication laws. The judiciary fairly maintained the Zamindari abolition legislation and accepted them. Article 31 was amended significantly by the Fourth Amendment, which also added Article 31A. Clause (1) of Article 31A was replaced, and Article 31A (2)(b) was changed to include the terms “raiyats” and “under raiyats” in the group of people whose “rights” in an estate were no longer covered by Articles 14, 19(1)(f), and 31. Additionally, the ninth schedule was changed to include additional performances. Trade and commerce are free according to Article 301. Is a law that establishes a governmental monopoly in breach of Article 301. The Supreme Court’s ruling explains that law empowering state monopoly needs to be proven to be established in the public’s best interests and indicates that it comes under the classification of reasonable restrictions under articles 301 and 304(b), respectively. This was raised in the case of Saghir Ahmed v. the State of U.P., but it was not addressed at the time. However, an amendment to Article 305 clarifies it now.
3. The Seventh Constitutional (Amendment) Act, 1956 – The first schedule, which included the geographical area and boundaries of all the states and union territories, underwent alterations because of the reorganization plan. Articles 258A, 290A, 298, 350A, 350B, 371, 372A, and 378A were included as part of India’s seventh constitutional amendment. Additionally, it changed the constitution’s schedules 1, 2, 4, and 7, as well as Section 8. The fourth schedule, which outlines how members in the Council of States are distributed, has undergone a major revision. This was because the seat counts were based on a 1941 census. The population and demographics of India had undergone a major change, necessitating an alteration in the number of seats for each state. The constitution was amended to add a new Article 258A. In contrast to Article 258(1), which grants state governments the authority to delegate union functions, the Article defined the states’ ability to do so. The distribution of seats among the states and their regions has been altered by amending Article 81. Alterations are made after every census. Additionally, after every census, each state would be divided into territorial constituencies. Based on the 13th edition of V.N. Shukla’s Constitution of India, there was a gap that required the application of Article 258A. This gap was discovered when a state’s implementation of some of its developmental projects ran into a practical problem. The addition of Article 258A filled (fixed) this gap. The seventh amendment made significant modifications to the makeup of legislative bodies and councils. The same calculation as before was to be used, i.e., one seat per million for the initial five million; and one extra seat for every additional two million. As a result, the seat count is updated in accordance with the findings of the most recent census, but the calculation method is unchanged. Due to problems in states with a low population, the strength was increased from one-fourth to one-third. The 1/4th rule was effective for states with high populations, like Uttar Pradesh, but not for those with smaller populations.
4. The Thirty-Eight Constitutional (Amendment) Act, 1975 – According to Article 123, the President may issue ordinances when neither chamber of parliament is in session. However, the President may only do this if he or she is convinced that doing so is absolutely required in the specific situation. As a result, the Constitution has granted the following powers: to the Governor under Article 239B, to the administrator. Articles 123, 213, and 239B have readable language. Since satisfaction is an ambiguous concept, it cannot be quantified. It is inherently arbitrary. According to the amendment, since “satisfaction” is a relative concept, an ordinance should pass if the president is satisfied with it. When the parliament’s two houses are not in session and a crisis arises, an ordinance is passed. There is no time to confer with others or consider the problem in such circumstances. The approval of the president ought to be the sole criterion for action, which must be implemented quickly. After the cases A.K. Roy, etc. vs. Union of India and Anr. and T. Venkata Reddy, etc. vs. State of Andhra Pradesh, the following was decided. The president’s satisfaction is not exempt from judicial review, but it also cannot be dismissed as simply political or cast in doubt just because of a political issue. On the grounds of motivation or lack of application of mind, the ordinance cannot be contested. The authority to enact an ordinance is a legislative authority, not an executive power. If the President’s intentions are being questioned, an ordinance may be called into doubt. When the President acts dishonestly, it may be contested.
5. The One Hundred First Constitutional (Amendment) Act, 2016 –Article 256A, was added to the constitution with the 101st amendment. “(1) Notwithstanding anything stated in articles 246 and 254, Parliament, and according to clause (2), the Legislature of each and every State, having jurisdiction to adopt legislation with regard to goods and services tax levied by the Union or by such State,” the constitution reads. Where the provision of products, services, or both occur during interstate trade or commerce, Parliament alone has the authority to enact laws relating to the goods and services tax. All the states and the center have the same authority to enact laws governing goods and services. Trades conducted within a state are subject to both state and federal regulations. According to Section 269A, “(1) The Government of India shall levy and collect the Goods and Services Tax on goods in the course of inter-State trade or commerce, and such tax shall be appropriated between the Union and the States in the manner might well be produced by Parliament by law on the suggestions of the Goods and Services Tax Council.” The following prerequisites must be met for the provision, regarding the clause, the provision of products or services, or both, for interstate trade or commerce is defined as the importation of such goods or services into India. According to the clause, the sum allotted to a state is not included in the Consolidated Fund of India. If a tax amount is imposed under subsection (1) and collected to satisfy a tax obligation imposed by the state, it will not be included in the Consolidated Fund of India. When a tax is collected that was imposed by a state under Article 246A and utilized to fulfill clause (1), the tax amount collected will not be included in the State’s Consolidated Fund. Through the creation of laws, the Parliament is empowered to determine where interstate commerce in the form of the delivery of commodities, services, or both will occur. The purpose of the 101st Amendment was to create a consistent national tax system. It grants the center and the states simultaneous taxing authority. Added to that are the union territories. With the legislature in session, this authority allows for the passage of laws relating to the tax imposed on goods and services. All domestic deals involving the flow of goods and services would be subject to this goods and services tax.

Scope for Improvement in the Constitution

1. Transparency in Appointment of Judges- Judges in India choose other judges. The remaining judges and HC judges are appointed by the SC collegium, which consists of the Chief Justice and the four senior-most judges. The public is unaware of the reasons why one judge was nominated and another was not since this is done in an opaque manner. To ensure accountability and openness, the Judges should be appointed by a completely independent authority. On this point, the judiciary serves as a check on the legislative and executive branches’ powers, but there is minimal to no control over the judiciary itself.
2. Term Limits on Public Offices- Important constitutional positions including the Prime Minister, President, Chief Minister, Governor, and even Members of Parliament, Legislative Assemblies, all the way down to members of panchayats should have a set number of terms or tenures. No one should be permitted to occupy any elected public office for longer than 3 terms if not 2. Staying for longer durations in a position of power can be misused for personal gains, as we have seen in countries like Russia and China where their head of state misused their powers to remain in power for even longer durations.

References

1. Kesavanand Bharati v. State of Kerala, (1973) 4 SCC 225.
2. Saghir Ahmed v. The State of Uttar Pradesh, 1954 AIR 728.
3. A.K. Roy, etc. v. Union of India, AIR 1982 SC 710.
4. T. Venkata Reddy, etc. v. State of Andhra Pradesh, 1985 AIR 724.

This article is written by Namay Khanna, a 3^rd year BBA LLB (Hons.) student at Symbiosis Law School, Pune.

CASE NUMBER

Civil Misc. Petn. (Civil) No. 13066 of 1989 in Civil Appeal No. 2628 of 1980

EQUIVALENT CITATIONS

1990 AIR 464, 1989 SCR Supl. (2) 561, 1990 SCC (1) 259, JT 1989 (4) 573, 1989 SCALE (2)1426

BENCH

Sabyasachi Mukharji, V. Ramaswami, JJ

DECIDED ON

20^th December 1989

RELEVANT ACT

Contempt of Courts Act, 1971

OVERVIEW

The petitioner, in this petition, has prayed the court for convicting Respondents 1 and 2 for having committed contempt of court through violation of terms and conditions of the undertaking filed in the Civil Appeal No. 2628 of 1980.

ISSUE

Whether the Respondents 1 and 2 are guilty of contempt of court for violating the terms and conditions of the undertaking of the Civil Appeal No. 2628 of 1980?

BRIEF FACTS

Noorali Babul Thanewala, the petitioner has filed a suit against Respondents 1 and 2 of the Civil Appeal No. 2628 of 1980 for contempt of court stating that the terms and conditions of the undertaking have been violated and prayed the Hon’ble Supreme Court to direct to hand over the suit premises possession to the petitioner.

The petitioner, who is the owner and landlord of the Tika No. 3 City Survey House, bearing Nos. 344/345, Jambli Naka, Thane property, where the Ramakrishna Hindu Hotel or Ramakrishna Hotel restaurant is operated, filed Civil Suit No. 213 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name P.A. Dange, V.A. Dange, Haribhan Shivale, and Giri Anna Shetty. The suit was decreed by the Trial Court.

Respondent 1 has alone filed an appeal against the decree before the district court and it was dismissed by confirming the order of eviction. He further approached the High Court of Bombay under writ petition No. 354 of 1975 and the court upheld the lower court’s decree and dismissed the appeal. Finally, on approaching the Supreme Court, the appeal was dismissed on 18^th August 1987. However, the court allowed the appellant to continue the business till 31^st March 1989, stating, “appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file a usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered. In default of furnishing or filing the undertaking in the manner indicating within the time aforesaid the decree of execution shall become executable forthwith.”

Raghuram A. Shetty, the second respondent in this petition, filed Civil Suit No. 306 of 1989 in the Thane Civil Court sometime in the early months of 1989 asking for a declaration that the eviction order obtained concerning the subject premises in Civil Suit No. 213 of 1970 cannot be executed against him and for a permanent injunction against the petitioner. He also filed a request for a preliminary ban on carrying out the aforementioned decree. An interim injunction was granted as requested by the Thane Civil Court. This is how the petitioner, in this case, filed this contempt petition against the first respondent, the plaintiff in Civil Suit No. 306 of 1989, as well as the original tenant, K.M.M. Shetty.

The second respondent has filed a reply statement in which he contended that on November 29, 1986, P.A. Dange acquired the hotel business that was being operated by the tenant, K.M.M. Shetty, on the ground floor of the suit premises under the name and style of Ramkrishna Hindu Hotel, and that, according to an agreement dated January 2, 1967, the said P.A. Dange, with the tenant’s consent, transferred the said business and the exclusive possession of the later, on January 8, 1972, the tenant and the second respondent signed a new agreement under which the second respondent agreed to pay the tenant a royalty. To the petitioner’s knowledge, the second respondent was still occupying the property and operating a business, but he was not named as a party in the eviction suit or the subsequent proceeding, so he was not subject to the eviction decree. The landlord-petitioner has submitted a reply to this response.

This Court stated “the order granting the injunction against the petitioner from executing the eviction decree against the second respondent shall not be effective and that the petitioner is entitled to execute the decree for eviction against all people who are in possession of the property after discussing in detail the various developments of the case brought about by the first respondent as well as by the second respondent herein. The court found the first respondent guilty of contempt for wilfully disobeying the undertaking he made in front of the court.”

DECISION

The question that had been raised in front of the Hon’ble Supreme Court was the punishment to be given to the first respondent and the relief to the petitioner. The learned counsel for the first respondent had stated on behalf of his client stated that his client was an 84-year-old man, and was willing to hand over vacant possession to the petitioner and that he was unable to comply with the undertaking bona fide given the facts and circumstances.

The court stated, “When an order is given on the basis of an undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical.”

The court further stated, “To enforce an undertaking, it is treated as an order and if the terms and conditions of the undertaking are not complied by the party, there would be consequences upon them for the disobedience of an order for an injunction. It is established law that misconduct amounting to contempt includes violating an order of a court or an undertaking made by a party to a civil case in whose favour the court sanctions a certain course of action. In these situations, the remedy could be a warning to the contemnor to stop, a jail sentence, a fine, or any combination of those. We believe that a simple sentence of imprisonment or a fine will not serve the interests of justice in this case given the facts and circumstances and the fact that the undertaking was broken.”

The court decided that the first respondent is guilty of contempt of court due to the wilful disobedience of the undertaking. Accordingly, he was convicted and sentenced to pay a fine of Rs.500 within four weeks, failing which he would suffer simple imprisonment for one month, and also directed to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. The court also further directed the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men, and if necessary, with police help and hand over the vacant possession of the premises to the petitioner. However, the court discharged the rule issued against the second respondent.

CONCLUSION

The courts are considered to be the administrators of justice in the nation. The order or decree passed by them is required to be followed. Apart from the Contempt of Courts Act 1971, the Constitution prioritizes the process of contempt of court to maintain justice and equality in society. Under the Indian Constitution, the Supreme Court of India, i.e., the Court of Record can hold any party liable for contempt of court, if anything wrong has been committed against the decision of the courts under Article 129.

Also, Article 142 (a) states that the Supreme Court has the full authority to issue an order securing anyone’s attendance, the production of any documents, or the ability to penalize anybody for disobeying any law passed by the Parliament regarding the requirements specified in clause 1 of this Article. Since the Supreme Court has the authority to impose penalties for contempt of court, this does not imply that it can take any action that violates an individual’s right to personal liberty. We are aware that because the Indian Constitution is the custodian of all our rights, it must protect them and cannot infringe on them directly.

The Hon’ble Supreme Court made it clear that any person disobeying the decree of the court would be tried for contempt. The party’s non-compliance with the decree would disrupt the process of justice. The court has also made it clear that any undertaking given by the parties to the court will be considered an order and not adhering to the terms and conditions would also be considered contempt of court.

This article is written by K. Mihira Chakravarthy, 2^nd year, B.A. L.L.B student from Damodaram Sanjivayya National Law University.

Introduction

It is crucial to understand both the terms, ‘crime’ and ‘society’ when we discuss crime and society. Because it is hard to comprehend crime without researching society as a whole, there is a relationship between criminology and sociology. The concept of deviation in society is where the idea of crime originates. Deviance entails defying a social convention and arousing hostility from others. Laws are standards that are established and upheld by the government. When deviation breaks the law, it is considered a crime.

What constitutes a crime?

A crime is any act, omission, or circumstance that is forbidden by law, which, if committed, results in legal action being taken by and on behalf of the state rather than a specific individual, and which, upon conviction, results in a punishment of some kind being meted out by state agents rather than the payment of compensation.

As a result of the aforementioned definitions, we can define crime as any morally or socially wrong deed committed by an individual or group of people against another person or the state that is against the law, and when convicted, punishment is meted out by the state rather than the specific offender. Crime can take many different forms, including crimes against people, crimes against property, organized crime, workplace crimes, political crimes, and corporate crimes.

For the same reason, many actions that are prohibited in one nation but permitted in another are legal in that nation. Alcohol drinking is one example, permitted everywhere but prohibited in Muslim nations. People’s perspectives on what constitutes a crime also alter as a result of cultural changes. As a result, there may be numerous causes of crime, which vary depending on the type of crime, the time and location where it occurs, and other factors. The criminalization and decriminalization of different phenomena is thus a continuous process.

Describing society

The Latin word “socious,” which means affiliation and friendship, is where the word “society” originates. Therefore, the definition of society is “a larger group of people who are connected.” Sociologists define society as a group of individuals who share a common environment, way of life, and culture. Individual and communal (shared) benefits can thus be distinguished, or in many situations found to overlap, insofar as a society is collaborative, it can enable its members to benefit in ways that would not otherwise be conceivable on an individual basis. In a dominating, bigger society, a group of people who share similar beliefs and norms might also be considered a society. A subculture is another name for something that is frequently used in criminology.

Societal definition of crime

In essence, crime is defined via the prism of society. An act is not criminal until society declares it to be so, and if society deems an act to be in line with its values, then it is not a crime at all. The primary purpose of laws is to punish criminal behavior, and these laws are the outcome of society’s desire to put an end to such activities. To better grasp it, consider the fact that witchcraft was once regarded as a crime and subject to punishment. People at that period were extremely devout, believed in witchcraft or black magic, and believed that witches assisted the devil in his evil deeds. Witchcraft, thus, became a felony and a basis for prosecution of anyone suspected of practicing witchcraft. The definition of crime by society is crucial because it influences the creation of laws that will stop it from happening. In defining crime, society’s perspective on the specific act is crucial because, for instance, if society does not view giving bribes as a crime, they will not be recorded as such and no laws will be passed on them even though they are morally wrong.

Money as a reason for crime

Money is one of the most crucial components of everyone’s life in the modern era. The value of money extends beyond a person’s bank account balance and includes things like their social standing, value, and even morals. People, therefore, place a higher emphasis on money than on relationships and pleasure. They place more value on others’ opinions of them than their own. Even colleges and universities do not instruct students on how to lead happy and fulfilling lives; rather, they focus on teaching them how to increase their income, which subtly equates wealth with value. People who are in awe of students who study and choose careers in science rather than the arts since, traditionally, they have a better chance of making more money, would be an example. People who make less money feel unworthy as a result, and they are forced to engage in criminal activity to increase their income and improve their self-worth.

Variations in crime

Due to advancements in technology, crime has changed significantly over time along with societal change. People used to believe that crimes were primarily perpetrated by people from lower socioeconomic classes who were trying to get materialistic things and had little other options than to use illegal means to accomplish so. But rich individuals can commit crimes as well as poor people, and most of the time they can do it without leaving any evidence. Anyone can commit a crime, regardless of their social, political, or economic standing. It has been said that crime doesn’t go away; it just changes.

Do the crime figures include any errors?

The functionalism perspective is perhaps the least appreciated of the main paradigms or ways of looking at crime in sociological techniques. Everything has a function, according to functionalism. Sociologists such as Emile Durkheim postulated that since crimes happen in every culture, they must have a purpose otherwise they would not be widespread. Crime provides targets for societal moral outrage, maintaining society and fostering stronger solidarity.

Particularly Marxists contend that many crimes perpetrated by the wealthy are not recorded in crime statistics. The wealthy are less likely to be under investigation or to become suspects since they can more easily afford skilled lawyers who can clear their names or even bribe officials to stop the investigation altogether. Marxists would add that since the wealthy are the class that creates the laws, a large portion of the detrimental behavior that they do participate in is legal.

Crimes perpetrated by “middle class” people (as opposed to “blue collar” laborers) are referred to as “white-collar crime.” It is typically used to describe the crimes most associated with the middle class, such as fraud and tax evasion, rather than, for example, violent crimes that just so happened to have been committed by a middle-class person. Although theoretically, it could mean any crime committed by members of that class, it is typically used to describe the crimes most associated with the lower class.

Because many white-collar crimes are more difficult to identify, prosecutions are less likely. The crime is frequently perpetrated at a distance, possibly via computer, rather than face-to-face, and victims are frequently spread and remote (for example, there may be thousands of fraud victims who may never be aware that a crime has taken place).

Both victims and witnesses to crimes are less inclined to come forward because of these two factors. In the past, these crimes have been dealt with more leniently, and occasionally, white-collar criminals’ associates will assist in “brushing it under the carpet” to escape the unfavorable publicity. Therefore, thieves discover new and improved ways to accomplish a crime.

These days, cybercrime, often known as computer crime, is very common. The offense is perpetrated when someone uses a computer to carry out unlawful activities such as cyberpornography, fraud, infringement of intellectual property, identity theft, or invasion of privacy. With the development of technology, cybercrime, particularly over the Internet, has become more prevalent.

The advancement of technology has led to new criminal opportunities. Cybercrime typically involves an attack on data about people, businesses, or governments. Even though these attacks lack a physical component, they still affect a person’s or a company’s virtual body since, in the digital age, our virtual identities are vital components of daily life.

Consequences of crime

Most often, crime had a detrimental impact on society in terms of its economy, social structure, and political climate. The following are the consequences of crime on contemporary society: –

• Hinders societal development

Crime frequently impedes society’s development. For instance, the rise in crime rates forces the government to allocate resources to crime reduction rather than investing them in profitable areas. Building jails, buying tools to fight crime and paying those working in the criminal justice system all cost enormous sums of money. In this approach, crime prevention costs the government more, which slows down social advancement.

• It leads to the killing of people

In countries where crime rates are rising, there are more fatalities each year. Crime directly results in death through violence, such as the terrorist attack on the Pentagon and the World Trade Center on September 11, 2001, in the United States, which left about 2996 people dead and over 6000 injured.

• The expense of living in society rises as a result

The cost of living in society also rises as a result of crimes being committed there. This occurs in several ways, including the costs required by society to prevent crimes, investigate and punish criminal activity, and maintain those who have committed crimes behind bars. For instance, the criminal must be imprisoned after being charged. Criminals require pricey housing, clothing, and food.

Conclusion

The saying “money is the root of all evil” makes it obvious that crime is a combination of many various aspects of our lives, with money being the first and most significant factor. A person may commit various crimes to obtain money if there is a lack of funds and he cannot meet his needs. The need for retribution is a key motivator for criminal behavior. Both crime and society are a part of society, and their relationships are interdependent. Since society determines whether a particular act is considered criminal or not, crime is always committed in society. Crime is also more likely to occur where there is society because of social conflict and other factors.

References

1. Encyclopedia Britannica. [Online] August 22, 2022.
2. Rao, C N Shankar. 2019, Sociology, Karnataka: S. Chand Publishing, 2019.

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

Organ donation is the process of obtaining an organ or portion of an organ from a live or deceased person and then transplanting it into another human being (OD). After passing a psychological and medical examination, individuals can donate 25 different organs and/or tissues, according to sources. According to the Organ Procurement and Transplant Network (OPTN, 2015), a single donor’s organs might potentially save up to eight lives. The most frequently transplanted tissues are corneas and musculoskeletal grafts, whereas the most frequently transplanted solid organs are kidneys, livers, and hearts. Over the past 20 years, the rate of organ transplantation has gradually risen. Although it has produced good results in kids and teenagers, an increase in the number of elderly transplant patients who also have co-morbid conditions poses a difficulty.

BRIEF HISTORY

In India, organ transplantation has a shorter history than in the world’s most developed nations. In the 1970s, the first kidney transplant was carried out in India. The number of transplants increased in the 1980s and early 1990s, although they were mostly limited to kidney transplants using live donors in a few urban locations. Kidney transplantation activities gradually increased as new facilities opened and the pool of qualified personnel grew. But this resulted in the well-known kidney trafficking in India in the 1980s, which received extensive media coverage. Patients from other countries began to swarm to India for transplants from paid donors.

The Central Government established a commission in 1991 to provide a report that would serve as the foundation for legislation controlling organ transplantation throughout India in light of the country’s continuing kidney scandals. Additionally, it was done in order to provide a clearer explanation of the term “brain death.” The Indian government passed The Transplantation of Human Organs Act (THOA) in 1994. The Transplantation of Human Organs Rules, which were last updated in 2014, was also adopted in 1995, expanding the scope of donation to include tissues for transplant. The Act criminalized the sale of organs, formalized the idea of brain death in India, and permitted deceased organ donation using the brain stem of the deceased.

HOW ORGAN DONATION WORKS?

When an individual’s organ starts to fail or deteriorate and they need a transplant to survive. If a person is a good candidate for a transplant, a transplant centre will undertake a comprehensive evaluation and add them to the National Transplant Waiting List. The clock starts to run and the wait for an organ begins once the person is added to the list. It is a mechanism that matches donors with patients on waiting lists. Blood type, body size, the severity of the patient, proximity to the donor, tissue types, and length of the waiting list are used to categorize donors. Organs are never matched based on: 

• Race
• Cast
• Gender
• Economic status
• A person with a special status in society.

TYPES OF ORGAN DONATION

There are mainly 2 types of Organ donation:

1. Living Donor: A living donor is an adult who has given their agreement to have their organs or tissue removed while they are still alive. Legally, a person may donate:
   • Only one Kidney, as the recipient’s body, may still operate normally without it.
   • A fraction of the pancreas, up to half of it, can effectively carry out pancreatic activities.
   • A fraction of the pancreas, up to half of it, can effectively carry out pancreatic activities.
   • Both the donor and the recipient’s liver can regenerate over time, with the other section of the liver being able to do so.
2. Deceased Donor: (Donor who has passed away) Organs may be donated when a person has experienced cardiac death (when the patient’s heart stops pumping) or brain death (total loss of brain function). If the person has achieved the age of majority and is ready to give their organs after death, their agreement can be obtained while they are still alive (before death).
3. Even if the patient had previously given his approval for his organs to be donated during his lifetime, the Act mandates that the hospital ask a close relative or the person legally in charge of the body’s custody for permission once the patient is confirmed brain dead.

BRAIN DEATH

The term brain death refers to a condition in which all of the brain’s functions have ceased to operate and cannot be restored. Despite this, the ventilator’s ability to provide oxygen may allow the heart to continue beating. But in this circumstance, it is safe to declare the patient dead. The THOA defined brain death as the stage at which the brain-remaining stem’s functions have completely stopped. The panel of medical experts must certify the same. Before doctors can declare a patient to be “brain stem dead,” THOA Rules list a few prerequisites that must be met. The medical expert board must proclaim it following two thorough examinations of the body spaced around six hours apart.

INDIAN LAWS

The donation of human organs is governed by legislation passed by the legislature. The law allows both live and deceased people to donate their organs. A human organ cannot be sold for profit or with other incentives. This is against the law. Organ transplantation is governed by the following legal provisions. The primary legislation, The Transplantation of The Human Organs Act, 1944 covers organ donation and transplantation (THAO). It sought to uphold appropriate regulations for the removal, preservation and transplantation of organs for medical purposes. The primary responsibility of the law is to stop transplant commercialism. The state of Maharashtra, Goa, and Himachal Pradesh first suggested the necessity for such an Act, and all states except Andhra Pradesh and Jammu & Kashmir later agreed. However, the incidence of human trafficking and the sale of human organs for profit remained unchanged. As result, the need for the modification to correct the Act’s inconsistencies was felt in 2009. The Indian Parliament approved the change in 2011, and rules were written for it in 2014.

KEY ELEMENTS OF THE LEGISLATION

• A specific group of experts who make up the authorization Committee must be organized at the state and centre levels. The committee would be accountable for keeping track of information about available organs and approving requests for organ transplantation.
• Only the registered medical professionals in authority will be given the responsibility of executing the procedure to remove the organs from the deceased’s body.
• The Hospital where the transplant would be performed must obtain approval from the State Authorities in order to be recognized as an approved centre.
• Before the transplant is about to start, a person cannot be pronounced brain dead without the consent of a trained neurosurgeon.
• If no one in the family opposes, the relative may consent on behalf of the deceased.

PUNISHMENT UNDER THE ACT

1. According to Section 18 of this Act, any individual who has legal permission to remove a human organ or tissue may be penalized with up to 20 Lakhs as a fine and 10 years imprisonment. If the offender is a medical professional, the AA (Appropriate Authority) will submit his name to the State Medical Council, which will then take the required action. This may include deleting his name from the council’s register for three years for the first violation and permanently if they commit the offence subsequently.
2. According to Section 19, anyone involved in the commercial trading of human organs can be penalized with imprisonment for a time not less than 5 years but may not exceed 10 years, as well as being subject to a fine of not less than Rs. 20 lakhs but may not exceed Rs. 1 crore.
3. According to Section 20, any individual who breaches any other clause of this Act faces a sentence of up to five years in prison or a fine of up to 20 lakh rupees.

CONCLUSION

One of the greatest advances in medical science and technology is organ transplantation. The benefits of this accomplishment, though, might not be accessible to everyone, is in its current form, a cadaveric donation in India which mostly serves the wealthy and only supports a very small proportion of patients who seek it. The impoverished have also been taken advantage of it to an extent. It is a sad fact that despite being in effect for 15 years, the THO Act has not been able to prevent the commercial trade in organs or promote organ donation.

The best course of action in India is to spend money raising awareness about the deceased contribution and passing legislation requiring the donation unless someone opts out. The conservative mindset of society needs to shift, together with strict legislative requirements and their successful implementation, in order to close the enormous gap between the supply and demand of organs.

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This article is written by Aditi Jangid, first year law student from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

Gender is a word that cuts society, polity, and culture all over the world. Some languages do not have the word gender instead the word sex is used. Different terms are used regularly in theories of sexuality. Sex and gender may look identical but they are completely different terms. Sex generally means the biological and physiological characteristics of a person whereas gender usually refers to sociological, psychological, and cultural construct. This generally refers to the attributes associated with the person and it is not determined by biological characteristics. The word “Trans” means a general term used for the people who use a different gender identity other than their assigned sex by birth.  The person’s identity in their innate knowledge has changed and they think they are different from what they are expected to be born. Transgender people can be of any age, having different personal characteristics other than the views of how men and women should be.

HISTORY OF TRANSGENDERS

Transgender people were known to exist since ancient times. In Ancient Greece and Rome nearly 9000 to 3500 years ago, there were priests called Galli priests that some people believed to be Trans women. The Roman Emperor named Elagabalus who lived in 222 A.D performed sex reassignment surgery as he preferred to be a woman. In the Indian subcontinent, one of the oldest Veda named Rig Veda, mentions the ancient poems where their creation lacked all distinction and men were described with womb or breast. In the great Epics Ramayana and Mahabharata, there were trans men like Shikhandi. In Hinduism, there are transgender deities called Iravan, and Ardhanarishvara (half male and half female considered to be a fusion of Lord Shiva and Shakti), worshipped by the transgender community.

In the middle ages, Eleanor Rykener was arrested in the year 1394 in Europe where he had the body of a male but performed feminine roles, it was earlier seen as gender dysphoria. At present, trans people are recognized as the third gender and are accepted in society broadly. They are elected to public offices, legislatures, and even in courts but still, some countries refuse to recognize them and provide them with basic rights.

RIGHTS OF TRANSGENDERS

Our Constitution enshrines all the fundamental rights of the people irrespective of religion, sex, race, or gender. Part III of the Constitution deals with fundamental rights. Fundamental rights are provided for speech, education, trade, occupation, etc., the fundamental of all fundamental rights lies in Article 21 of the Constitution which deals with the right to life. The right to live with personal dignity to all individuals. Protection is also given to individuals against the violation of fundamental rights. The major issues faced by transgender people are discrimination, marital problems, hygienic problems, unemployment, and financial crisis. They are also sometimes not given the authority to vote. Transgenders are often neglected in the areas of property, adoption, marriage, etc. They end up begging in the street or even acting as a sex worker to survive. They are even refused to use bathrooms. They are also sexually assaulted in public places. Meanwhile, our constitution ensures that all laws are being enacted for the well-being of people in order to establish equality in social, economic, and political spheres; transgender people do not even get their necessities fulfilled. They are considered to be the weaker class and often exploited by the dominant class people. The Supreme Court in the landmark judgement of NALSA vs Union of India¹ case said that transgender can be legally a third gender and they are enshrined with all fundamental rights. But the laws for the benefit of the transgender community people remain unenforced.

TRANSGENDER MARRIAGE

Supreme Court in another landmark judgment Navtej Singh Johar vs Union of India² case held that Section 377 of the Indian Penal Code was decriminalized and it legalized the sexual relationship of all kinds of genders. In the Arun Kumar & Another vs Inspector General of Registration & Ors³ case the court said that under Section 5 of the Hindu Marriage Act, a bride can include a transgender person as well since the right to marriage is a fundamental right under Article 21 of the constitution. Despite the judgment, there is no provision for the right to marry in the Transgender Protection of Rights Bill. The Union government also stated that the Natvej case does not legalize homosexuality but it has decriminalized a particular way of human behaviour.

In Arun Kumar’s case, the term ‘bride’ covers the people who identify themselves as females. But what about those people who do not identify themselves as females? It is stated that if a transgender community undergoes Sex Reassignment Surgery to transit gender then they can fit into either male or female and a document must be submitted to the judicial magistrate with medical documents. Only then they will fit into the perception of male or female and only then they will be enabled to marry with their identity. In Mohammedan law, the perception of marriage is that it must be between the opposite gender for the procreation of children, and bearing children is a very crucial part of marriage. People who have undergone Sex Reassignment Surgery cannot reproduce children so under Mohammedan law it is not considered to be a valid marriage.

The biggest challenge faced by the transgender community for a valid marriage is the procreation of children. This construct that the society accepts two people as lawfully married for the procreation of the children has hindered transgender people in securing the fundamental right to marry. In the Shakthi Vahini vs Union of India⁴ case, it was stated that every individual has constitutional freedom to choose someone whom they wish to marry. The judgments pronounced have not inspired amendments in the provisions of the statute which is the sole reason why there is trouble in recognizing transgender marriage in India. On 1^st April 2022, MP Supriya Sule from the Congress party introduced a bill to Lok Sabha to legalize same-sex marriage under the Special Marriage Act. This bill provides rights to same-sex couples as opposite-sex couples have.

TRANSGENDER MARRIAGE IN OTHER COUNTRIES

In the United States of America, on June 26, 2015, a landmark judgment was passed and in the fourteenth amendment, a fundamental right was guaranteed to same-sex couples, and the government legally recognized same-sex couples. The United Kingdom Gender Recognition Act, 2004 allowed people to get a new birth certificate that recognizes their acquired gender so that they can get legal rights.  In New Zealand, the Civil Union Act, of 2004  was established and couples of both opposite and same-sex gender can get all civil rights including marriage rights. South Africa is considered a prime example of a country that gave recognition to the transgender community. They once considered this community a taboo community but now it has been dramatically changed and marriage rights are given to all the communities irrespective of their gender. The constitutional court of South Africa stated that the relationships are much more than procreation and the love between them cannot be determined by the sex of the parties. 

In 2006, they passed a law solemnizing the union of same-sex couples. Some countries like Saudi Arabia still do not recognize transgender rights. Saudi law follows strict Muslim ideology that considers homosexuality immoral and severe punishment is given to homosexual people. India must also incorporate the right of marriage in the statuary law. There must not be only marriage rights but there must be provisions for adoption, divorce, inheritance, etc. Transgender couples must be provided with the legal right to adopt children.

CONCLUSION

Transgenders face a lot of challenges in society be it physical, political, economic, or social, there is no measure of the magnitude of their problem. These people faced some kind of harassment for their sexual identity. There is also less awareness among transgender people about the fundamental rights vested upon them. The current law for transgenders is inadequate as they need more amendments so that they can live a dignified life. Law is dynamic, it needs constant change so the concept of marriage must be changed; marriage is not for the procreation of children it is much more than that.  The transgender community must not be discriminated against the society and they are also an equal part of this society. They need a dignified and happy life with laws protecting their well-being.

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REFERENCES

1. SC, Civil Writ Petition No. 400 Of 2012.
2. SC, Criminal Writ Petition No.76 Of 2016.
3. Wp(Md)No.4125 /19,3220/19.
4. SC, Civil Writ Petition No 231 Of 2010.

This article is written by Sree Lekshmi B J, a third-year law student of Sastra University, Thanjavur.

Corporate Personality

A Corporate Personality also known as an ‘Artificial Juristic Person’ or simply as a legal entity, is an entity, body, or a group of members recognized by law to confer it with rights, duties, and obligations for its proper governance. It is a separate legal entity from its members, i.e., the entity conferred with such legal personality is not liable for the actions of its members, due to the veil of ‘Separate Legal Entity.’ The veil of ‘Separate Legal Entity’ is the separation of the members from the entity. It protects the entity from the actions of the members and vice versa, but when the members of the firm engage in illegal activities like fraud or other illegal activities, the veil is lifted thereby making each member liable for the actions of the other.

A corporation can be identified by comparison to many categories of objects that the law has chosen to personify. Members of a corporation are the people who make up its body. According to Section 34 of the Companies Act, 2013, certain conditions must be met for corporations to have legal personality –

• There should be the existence of a group or body of people united for a certain objective.
• The corporation must have organs through which it operates.

It has its own legal personality and can file and receive lawsuits in its own name. It is perpetual because it does not cease with the passing of any of its individual members. Contrary to natural beings, corporations can only act through their agents. The law specifies the steps to wind up a corporate organization.

Corporate Personality or the corporate veil came from the landmark case of Salomon v. Salomon & Co. Ltd., in 1897, in the United Kingdom’s House of Lords. Salomon transferred his boot-making company, which he had previously managed in single ownership and control, to Salomon & Co. Ltd., a company he and his family founded. Salomon received shares and debentures with a floating charge on the company’s assets as payment for the transfer. Salomon’s claim of recovery against the debentures stood before the claims of unsecured creditors when the company’s operations failed and it entered liquidation, i.e., they would have received nothing from the proceeds of the liquidation. The Court of Appeal declared the corporation to be false or fake and gave their justification by arguing that Salomon had formed it outside the actual intent of the Companies Act, 1862 and that it had operated as Salomon’s agent, who should be liable for any debt incurred because of that agency.

The House of Lords, on appeal, overturned the decision, concluding that the company was properly incorporated and that it has independent legal status, with its own rights and obligations, and that “the motivations of those who participated in the company’s promotion are completely immaterial in addressing what those obligations and rights are.” The Salomon case effectively established the legal fiction of the “corporate veil” between the corporation and its owners/controllers.

The legal fiction of the corporate veil asserts that a corporation has a separate legal identity that is distinct and independent from the identities of its stockholders. As a result, any rights, responsibilities, or liabilities of a corporation are distinct from that of its members, who have “limited liability” and are only accountable for their share of capital. This corporate deception was created to allow groups of people to achieve an economic goal collectively without being personally liable or exposed to hazards. As a result, a business can act independently of its members to hold property, enter contracts, raise loans, make investments, and undertake other rights and obligations. Additionally, it simplifies the legal process because businesses then can sue and be sued in their own names.

Lifting the Corporate Veil

According to the Companies Act of 2013, lifting the corporate veil entails disregarding the fact that a corporation is a distinct legal entity with a corporate personality. Lifting the corporate veil in accordance with the Companies Act of 2013 disregards the distinct identity of the firm and focuses instead on the real members that oversee it. The entire concept of incorporation is built on the concept of a corporate entity, but the company’s distinct personality and legal privileges should only be used for lawful purposes. Individuals will not be permitted to hide below under the umbrella of a separate legal entity or corporate personality when the legal entity of the corporation is being utilized for fraudulent and deceptive purposes. In certain situations, the courts will pierce the corporate veil and use the “lifting or piercing the corporate veil” principle. The court will therefore investigate the corporate entity’s background.

In India, the Corporate Personality came in through the British common law system, when the colonial government introduced common law in India. Since then, many developments have taken place with respect to corporate personality. Through Sections 45, 147, 212, 247, and 542 of the Companies Act, 2013, official recognition has been conferred upon the concept of “lifting the corporate veil”. When the court does not take the corporation into account and instead is preoccupied with the members or management, the corporate veil is said to be lifted. In the following circumstances, the courts have deemed it necessary to overlook a company’s independent personality-

1. Determination of a company’s true nature– In a time of emergency or war, it could be vital to look behind a company’s corporate façade to see if it is an enemy of the state. In such a situation, the courts can review the personalities of those who govern the company’s corporate affairs. In the case of Daimler Co. Ltd. v. Continental Tyre & Rubber Co., a firm was founded in England with the intention of selling tyres made in Germany by a German company; all the company’s shares, except for one, were held by Germans in Germany. A British citizen who served as the company’s secretary held the remaining share. Germans, therefore, held actual control over the English corporation. The business started legal proceedings to reclaim trade debts during World War I. Therefore, the question was about whether the Firm had turned into an enemy corporation because of World War I. The house of lords held that it can take on an enemy character if the people who are de facto in charge of its affairs reside in either enemy nation or, wherever they may dwell, are functioning as agents of foes. It was decided that the corporation was such an enemy firm for trading purposes and therefore the action could not be continued.
2. For Revenue Benefit– As stated in the case of Juggilal Kamlapat v. Commissioner of Income Tax, the court has the authority to disregard a corporate entity if it is utilized for tax evasion or to dodge the tax obligation. The assessee in this case was a wealthy individual who earned sizable dividend and interest income. He established four private firms and agreed that each would act like an agent for a certain amount of investment. The corporation returned the money to him as fictitious loans even though the income received was recorded in the company’s books. The assessee founded the firm solely and simply to avoid paying super-tax, according to the court, and the assessee was the only shareholder.
3. For Fraud or Misconduct– The courts will not uphold the company’s independent existence if it was established to violate the law, cheat creditors, or escape legal duties. The court in the case of P.N.B. Finance Ltd. v. Shital Prasad Jain stated the court, whenever it deems it necessary, may use its powers to use the principle of lifting the corporate veil to prevent a company use the corporate entity of a firm to engage in fraud or when the core values of the corporate personality have been disregarded by the members of a firm.
4. State-owned Firms– Sometimes a firm loses its uniqueness to serve its principal and may be viewed as a trustee or agent. A film called “MANSOON” was made in India by an American business called F.G. Films Ltd. under the guise of a British firm. The president of the U.S.-based firm that provided the funding for the film’s production owned a controlling stake in this British corporation, which had a capital of £100. The Board of Trade declined to register the movie as a British picture under these circumstances on the grounds that the British firm in this instance just served as the trustee or representative of the U.S.-based firm. The Court agreed with this viewpoint. It was noted in the case of Smith Stone & Knight Ltd. v. Birmingham Corporation that courts find it challenging to go beneath a company’s corporate entity to ascertain if it is truly independent or is being utilized as an agent or trustee. If a holding firm and a subsidiary firm are separate legal entities under ordinary law and there is no agency agreement between the two businesses, then neither can be claimed to be the other’s agent. The connection of agency should be sufficiently demonstrated, as it was in the case of the current judgment if one corporation is held accountable as a primary for the actions of another company.
5. Punish criminals in the quasi-criminal case against the firm– The courts can lift the veil of corporate personality in Quasi-criminal cases to punish actual persons who have violated laws, by analyzing the members behind an organization.
6. Preventing the Process of Law abuse– The lifting of the corporate veil doctrine can also be utilized to stop judicial process abuse. Accordingly, the Court stated in the case of Bijay Kumar Agarwal v. Ratanlal Bagaria & Others that although the principle of lifting the corporate veil will be available in statutes like the Companies Act and other financial and taxing statutes, etc., one cannot rule out the appropriateness of the principle elsewhere because the situations are going to fall under the following groups; The following factors must be taken into consideration:

(a) the applicable statutory or some other laws;

(b) the goal that is being pursued;

(c) the contested conduct;

(d) the presence of a public interest aspect; and

(e) the impact on potentially affected parties.

Therefore, it follows logically that concept of lifting the corporate veil or a principle like it cannot be disregarded as a tool of the judiciary in resolving the disagreement between two parties. As a result, no specific act can claim exclusive rights to the concept of “Lifting of Corporate Veil” or a principal equivalent thereto. The judiciary or the Court may use it to stop the misuse of rule of law.

Conclusion

The doctrine or principle of corporate personhood or personality, also called an ‘Artificial Juristic Person’, was created by law to confer certain rights, duties, and obligations upon a group of people who conduct their business. It was done for the good governance of the entities these people were forming. To check for any discrepancies or misuse of the corporate veil, the courts introduced the doctrine of lifting the corporate veil, to check for the actions of the members. The courts can order the corporate veil to be lifted on various decisions including a firm being controlled by foreign enemies. Hence, we can say that the corporate personality is a real personality as the entities or groups who are conferred by these rights can operate their business with safety as well as not be liable for the collective action of other members unless the action taken is illegal or fraudulent. An entity after being conferred a corporate veil shall not be liable for the actions of its members unless such actions taken are illegal, fraud, or others, when the courts order the corporate vein to be lister.

References:

1. Salomon v. Saolomon Co. & Ltd. UKHL, 1 AC, 22.
2. Daimler & Co. v. Continental Tire and Rubber Company, UKHL 845, 2 AC 307.
3. Guggilal Kampatlal v. Commissioner of Income Tax, 1970 AIR 529.
4. P.N.B. Finance Ltd. v. Shital Prasad Jain, 19 (1981) DLT 368.
5. Smith Stone & Knight Ltd. v. Birmingham Corporation,  [1939] 4 All ER 116 (KB).
6.  Bijay Kumar Agarwal v. Ratanlal Bagaria & Others, AIR 1999 Cal 106.

This article is written by Namay Khanna, a 3^rd year BBA LLB (Hons.) student at Symbiosis Law School, Pune.