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This article provides the readers with an insight into the Gains of Hindu Learning Act of 1930 by analyzing the act in detail, pointing out the loopholes, and providing suggestions.

Introduction

Hindu law is known for its existence from ancient sources and scripts written by scholars. These sources have originated centuries back, and the soul of Hindu law lies in these texts which include almost every matter of the current scenario from marriage, divorce, rights, and duties of spouses to property and maintenance. Matters pertaining to property were always debated, even in the contemporary era. The property which is earned, whether it comes under coparcenary or self-acquired property and their definitions of how a property can be classified into either of the categories were always a matter of discussion for an extended period until the Hindu gains of learning act were passed 1930. The Joint Hindu family has its traces in the patriarchal society where Karta was the head of the family and he took all the decisions. There was no room for the self-acquired property. The self-acquired property was legally recognized after this act came into effect. The core meaning of this act signifies all the properties a person earns through his learnings. Learning can be in any educational form. Any property a person earns by the application of his education or by any trade practices or profession is self-acquired property. It is recognized under the gains of learning act that he has the sole right over the property, and no other person even a member of the Joint Hindu family, can have control over it. This article aims to deeply analyze the importance of gains of the Hindu Learning Act 1930 by quoting various relevant judgments and individual property rights.

Historical Backdrop

Coparcenary property is passed on from generation as of amendment passed in the year 2005, both males and females have equal rights over the ancestral property. This makes the individuals have joint possession of the property. The coparcenary property however cannot be disposed of by any of the individuals. One can only dispose of his share of the property. However, as one individual owns the self-acquired property, it can be disposed of by him.

Before 1930, the position of self-acquired property was unknown; therefore, there were many conflicting views. The self-acquired property itself was not recognized under a separate law. The earlier rule was unjust as no person could have self-acquired property because it was of the view that any property earned through the fund of a Joint Hindu family will naturally become a part of the joint Hindu family. It even includes educational funding. Even if an individual’s education was funded by the joint-Hindu family, and he earns property through his efforts and learnings, it would still count as joint property. Subsequently, in the year 1930, to give clarity regarding the partition of the property, the Hindu gains of learning act was passed. The first attempt to pass this legislature was made in the year 1898 in the madras legislature. Sir Bhashyam Iyengar was the one to make this attempt. Nevertheless, it went in vain because of the veto powers of the governor in the year 1901. Later the act came into effect on the year 25^th July 1930.

The main motive behind passing this act was fulfilled by removing the loopholes regarding property distribution and clearing the ambiguous nature of property rights. This act started to realize the efforts and learnings of an individual to earn property. The learnings of the individual are dominant rather than the means of learning. Whether funding to provide learning was through the joint family was less important. On the contrary, this act was not initiated to give property to the individual blindly. A thin line of distinction was drawn between individual rights on property and coparcenary rights. When the coparcener sets up a private firm with the earnings of the joint family, then the share of the organization’s profit must be shared between other coparceners. On the other hand, the salary earned by applying own skills belongs to the coparcener only. This gave clarity to the act. The only property earned through direct funding comes under the family’s rights.

Judicial Position After the Act

In the case, Durvasula Gangadharudu v. Durvasula Narasammah and Ors¹ the matter of discussion was whether the property earned by a lawyer employing his profession comes under self-acquired. The court in this case held that it would depend on the factual circumstances. In most cases, the education or learnings of the lawyer would be funded by the family so that it would be treated as a jointly owned property. This led to not realizing the efforts of the individual to acquire a property. The individual’s consent on whether he wanted to share the property was of no value. This led to holding every member of the joint Hindu family jointly responsible for legal conflicts arising from the property. Moreover, it resulted in undue pressure on children as they naturally become part of the property through coparcenary rights before attaining maturity to understand the consequences and their rights. A property earned by an artist, exhibiting his own talent and skills was still considered joint property. There was no value given to his skills. A property was realized as self-earned only when there was no direct or indirect funding source. In the case, of Laleshman Mayaram v. Jamnabai,² the petitioner was a lawyer by profession and a judge filed a petition for claiming self-acquired property. The family funded only elementary education, and every other achievement was self-earned. So, his acquired property was considered self-acquired. In another case, Amar Nath Gokulchand v. Hukum Chand Nathul Mal.,³ Gokulchand spent 7 years abroad for his education. When he returned, the property he earned was partitioned between the family. This was later challenged. The court held that even though he did his education abroad, there was no proof that he funded the education with self-earned money. The family’s earnings funded it. Therefore, the property is subjected to partition.

In the case, Chandrakant Manilal Shah And Anr., v. Commissioner of Income Tax,⁴ Chandrakant Manila, the Karta in the joint Hindu family along with his son Naresh Manila started a partnership firm. But the partnership was held invalid because no earnings or property or any asset was contributed by the son which is necessary for a partnership. He only contributed skill and labour. Court held the partnership valid, stating the fact that according to the gains of the Hindu Learning act, even skills and learnings to acquire property are recognized under the self-acquired property.

In Balbir Singh Uppal and Anr., v. Gurmeet Singh Uppal and Ors.⁵ The petitioner was residing in Pakistan and owned some ancestral property in Pakistan. But after the partition, he moved to Delhi and started residing in Delhi with his son (defendant). The petitioner gave a share of the joint family property to the son to start his business. The issue was whether the profit earned in the business should be shared with the joint family. The court in this case made a significant observation. It was stated that in matters where the capital of the business is contributed more by the assets of the joint family, then the profit of the business should be shared with the family. But if the learnings of the individual play a more significant role in the business than the capital then it is not necessary to yield the profit. In the present case, as the business was of herbal medicines, the knowledge of the defendant was more important in the business regarding different herbs. The family property was just a supplement in the business for support. Therefore, it was held that the earnings are self-acquired.

Loopholes and Conclusion

One of the major loopholes of the act was that the reasonable amount clause was not added to the Hindu gains of Learning Act, of 1930. The law allows the members of the joint family to use the funds of the family for self-acquiring property through learning. But the proportion in which these funds can be used was not mentioned anywhere. This may result in a disproportion in the distribution of the resources and members might take unfair advantage of it. In the present scenario, the cost of education is also increasing and differs from place to place. This would result in a substantial loss in the family fund. The same concept of reasonable proportion is applied in other fields of Hindu law as well. Where the daughter has the same right as the sons to get a proportional share of the property.

Another important suggestion is when the family fund is used by the member for learning purposes, he should have the moral obligation to repay it in any form to the family. Similar to the right of the son to repay the father’s debts in Hindu law. In the current scenario, more important to determine cases regarding property is to differentiate them based on whether the property is attained through learning. This ignores the fact that learning is gained only through the proper allocation of the family fund. Learnings are something that cannot be measured it is intangible.

Another vital motive behind this right was to improve the status of widows. When the property earned is considered joint property, and after the passing away of the member, it did not provide widows with the status to get a share of the property. This resulted in deteriorating their condition in society and being vulnerable to poverty. To uplift their status, this act was important. The matter of the hour is only to preserve the joint family’s fund. The family and its members should complement each other where funds are proportionally allocated to its members, and in return, the members owe an obligation to the family.

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References

1. Durvasula Gangadharudu v Durvasula Narasammah and Ors, (1872) Mad. H.C. 47
2. Laleshman Mayaram v Jamnabai, (1882) I.L.R. 6 Bom. 225.
3. Amar Nath Gokulchand v Hukum Chand Nathul Mal, 1921 (23) BomLR 671.
4. Chandrakant Manilal Shah and Anr., v Commissioner of Income Tax, [1991] INSC 272.
5. Balbir Singh Uppal and Anr., v Gurmeet Singh Uppal and Ors, SR. NO. 307 I.E CWP 17923 OF 2005.

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

Introduction

As per Places of Worship Act, it is “an Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto”

What guidelines do the 1991 Places of Worship (Special Provisions) Act contain?

In 1991, against the backdrop of the Ram Mandir agitation, the Parliament of the PV Narasimha Rao government passed this law.

• This Act preserves a house of worship’s religious identity as it was on August 15, 1947.
• A religious place of worship, or a portion of a religious place of worship, may not be converted into a place of worship for a different religion or a different denomination of the same religion, according to Section 3 of the Act.
• All appeals, lawsuits, or other procedures about changing a place of worship’s religious character must come to a stop at the effective date of the Act, according to Section 4(2) of the Act. Additionally, no new appeals will be accepted.
• It is crucial to remember that legal action may be taken if the place of worship’s religious nature is changed beyond the deadline of August 15, 1947.
• The Sets of Worship Act also places a positive obligation on the State to preserve all places of worship’s religious character in the manner that it did at the time of independence.

Exceptions

The Ancient Monuments and Archaeological Sites and Remains Act, 1958, governs ancient and historical monuments as well as archaeological sites and remains.

• Any disagreement that has been resolved amicably between the parties, any litigation that has been definitively resolved or dismissed, and any conversion of property that occurred prior to the start of the Act.
• Additionally, the Act does not apply to the Ayodhya temple known as Ram Janmabhoomi-Babri Masjid. This law will take precedence over all other laws now in place.

Efficacy of the Act

• The Places of Worship Act is inextricably linked to a secular state’s duty.
• Equality between all faiths.
• An affirmation of the solemn obligation placed on the State to uphold and defend the equality of all faiths as a fundamental constitutional principle and a component of the Constitution.

The Act’s penalties

• According to Section 6 of the Act, it carries a maximum sentence of three years in prison as well as a fine.
• When someone attempts to conduct an offence or help carry out a crime, they are nonetheless subject to penalty under subsection (1) even though they did not take any steps to actually commit the crime.
• Anything in section 116 of the IPC (45 of 1860) will be punishable with the punishment specified for the offence if anybody aids or conspires to commit an offence under subsection (1).

How does the petition violate the ruling made in Ayodhya?

• The statute was mentioned by the Constitution Bench, which was chaired by former CJI Ranjan Gogoi, in the 2019 Ayodhya judgement, and it was noted that it expresses the secular values of the Constitution and strictly forbids retrogression.
• The statute, according to the court, protects secularism by forbidding changes to a place of worship’s status following Independence.
• “Historical wrongs cannot be righted by the people taking the law into their own hands,” the five-judge Bench warned against additional attempts to alter the character of a house of worship.
• Parliament has explicitly said that in order to preserve the nature of houses of public worship, the past and its wrongs shall not be used as tools to oppress the present and the future.
• The State is addressed by the law just as much as every other American citizen is. Its standards bind all those in charge of running the country’s activities.
• These standards put Article 51A’s Fundamental Duties into practice and as such are mandates that benefit all citizens.
• In contrast to what the Supreme Court stated in the Ayodhya Verdict, the current petition challenges the law on the grounds that it infringes secularism.

Views of the Supreme Court

• The Constitution Bench referred to the statute in the 2019 Ayodhya judgement and stated that it embodies the secular values of the Constitution and forbids retrogression.
• Thus, the legislation is a legislative tool created to safeguard the secular aspects of Indian politics, which are one of the fundamental principles of the Constitution.

Petition concerning Places of Worship Act 1991

• “The Centre has banned remedies against illegal encroachment on places of worship and pilgrimage, and now Hindus, Jains, Buddhists, and Sikhs cannot file a lawsuit or seek a high court under Article 226,” the plea stated. As a result, they won’t be allowed to reinstate their places of worship and pilgrimage, including temple endowments, in accordance with Articles 25 and 26, and the invaders’ illegal barbaric deeds would go on forever.
• Additionally, the petition claimed that the law was against the Constitution’s secularism principle.
• Some contend that “pilgrimage sites” or “burial grounds” are covered by the State List and that the centre was therefore powerless to enact regulations in this area. However, the centre had contended in Entry 97 that it may do so under the residuary power of the union list.

Why is the law under challenge to our cultural practices in the name of secularism?

The first religious parliament was held in Delhi in 1984, with about 558 Hindus in attendance. They planned to launch a national campaign encouraging Hindus to claim the holy sites in Varanasi, Mathura, and Ayodhya. The movement grew in power after the Ram Janma Bhumi-Babri Masjid Conflict in 1990. The Hindu religious groups concentrated on two mosques:

(1) Shahi Idgah Mosque, next to Lord Krishna Temple in Mathura

(2) Gyanvapi Mosque, next to the Kashi Vishwanath Temple in Varanasi, despite the urge to lay claim to over 3000 mosques in the sites indicated above.

The petition was submitted in 1991 on behalf of Swayambhu Jyotirlinga Bhagwan Vishweshwar, the principal deity of the temple, by attorney Vijay Shankar Rastogi. Rastogi asserts in his petition that Maharaja Vikramaditya built the temple there about 2,050 years ago, where the current mosque now stands. He demanded that the Gyanvapi mosque be removed from the area, that Hindus be granted ownership of the entire parcel of property, and that they be granted the ability to practise their religion inside the mosque.

Petition filed for the Gyanvapi Mosque

• A request was made to the Supreme Court by BJP leader and lawyer Ashwini Kumar Upadhyay in opposition to several clauses of the Places of Worship (Special Provisions) Act of 1991.
• The Act is being challenged because it forbids any community from claiming the places of worship of another community. This ban is questioned as being legitimate.
• The Places of Worship Act of 1991, according to a petition, is “arbitrary, unreasonable, and retrospective.”
• Sections of the Act dealing with the bar on legal claims were the subject of the petition, which argued that they violated secularism.
• Additionally, it is claimed that the August 15, 1947 deadline is “arbitrary, unreasonable, and retrospective” and prevents Buddhists, Sikhs, Jains, and Hindus from petitioning the courts to “reclaim” their places of worship.
• It essentially robs people of their ability to use the legal system to seek redress and get justice.
• According to the petition, “fundamentalist barbarous invaders” “invaded” and “encroached” upon such locations.
• The petition claims that the law makes it acceptable for invaders to destroy sites of worship in the past. It is puzzling how the birthplace of Ram could be exempt from the legislation but not Krishna’s.

According to the petition, Sections 2, 3, and 4 of the Act:

• Violates one’s ability to worship, practise, and spread religion (Article 25),
• Right to control, maintain, and dispense with religious and pilgrimage sites (Article 26),
• The right to protect culture (Article 29)
• Antithetical to the State’s obligation to safeguard historic sites and maintain religious cultural heritage under Article 49 (Article 51A).

Conclusion

According to the Act, regardless of its past, every house of public worship that was open on the day of our independence, or 15 August 1947, will maintain its religious character on that day. The filing of lawsuits for such purposes of conversion is prohibited under Section 4, even though Section 3 prohibits the conversion of houses of worship. Thus, the Act’s purpose is evident.

The text of Section 4 of the Act provides a further basis for the dispute; another argument asserts that the clause forbids the right to judicial relief. Given that India has a long history of Muslim conquest and dominance, one key background of this Act is the claim that it discriminates against Hindus, Sikhs, Jains, and Buddhists.

As per the petition:

Hindus would not have received justice if the Ayodhya case had not been resolved. Hindus, Jains, Buddhists, and Sikhs all regularly pay respect to their houses of worship. The ‘Hindu law principle’ is also mentioned in this passage: “Temple property is never lost even if it is enjoyed by strangers for years, and even the King cannot take property away because the deity is an embodiment of God and is a juristic person, represents infinite, the timeless, and cannot be confined to the shackles of time.” Therefore, a thorough reading of the writ petition can give a good indication of the petition’s goals. The petitioner contends that they have a right to have past wrongs corrected, especially now that the nation is independent, and that they are working to redress those wrongs. The petition clearly has religious overtones, and any discussion of the legitimacy of the measure will undoubtedly bring up significant legal issues.

References

1. Places of Worship Act 1991.
2. Places of Worship Act (Special Provision Act) 1991.

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

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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).

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.

INTRODUCTION

The word limitation means a rule or restriction. The limitation law provides a strict time limit in which the aggrieved person can approach the court for justice and after the expiry of a certain period the suit cannot be maintained in the court of law. The Law of Limitation is procedural.  Law of limitation has originated from the legal maxim “Vgilantibus Non-Dormientibus Jura Subveniunt” which means the law assist only vigilant one and not those who sleep over their right. The meaning of this maxim is that people should be vigilant while exercising some rights. Any legal infringement will automatically be invalid if the aggrieved party does not file a case within a stipulated period. There is also another legal maxim named “Interest Reipublicae Ut Sit Finis Litium” which means in the interest of all individuals as a whole the litigation must come to an end. The limitation Act, 1859 was enacted in 1963 and came into force on 1^st January 1964 for the purpose of keeping the limitation principle to suits and other legal proceedings.

ORIGIN OF LAW OF LIMITATION

The doctrine of Limitation was common law in England. As India was also a part of a British colony, the Law of Limitation came into existence in our country. As the courts were established in Bombay, Calcutta, and Madras statutory laws were passed from time to time. In 1859 Limitation Act was passed and it was applicable under the Code of Civil Procedure. It came into operation in 1862. It was replaced in the year 1871 as it added a limitation period to appeal, in filing suits and extinguished the right to land for a specific period. Then it was replaced in the year 1877 when there was extinguishment in rights of moveable property. Then it was again repealed and replaced in the year 190. Then after independence, the Third Law Commission suggested repealing the previous acts and the Limitation Act was passed in 1963 and came into force in 1964.

FEATURES OF LIMITATION ACT, 1963

The main object of the Limitation Act of 1963 is the limitation to litigation and that they should be fixed within a period. It does not mean to destroy or infringe the rights of an aggrieved person but it saves time for the purpose of the general welfare of the public. The major consideration in this limitation is that the right related to property should not be in a state of doubt or uncertainty. The Limitation Act is not to destroy the rights but it is an Act for fixing lifespan for legal remedy.

The Limitation Act contains 32 sections and 137 Articles. The articles are divided into 10 parts which include accounts, contracts, torts, moveable, immoveable property, trust property, etc. There is no same limitation period for all suits and it varies according to classification. The limitation period is also reduced for some cases like a suit by mortgager from 60 to 30 years.  A longer period of 12 years is for the immoveable property suits, a period of 1 to 3 years for torts and suits with no period of limitation scheduled to the Act. A person sentenced to the death penalty by Session or High Court has been given a limit of up to 30 days to file an appeal case. The limitation period applies equally for a certain matter in all personal laws, there is no distinction on basis of any class or race. For filing a suit against foreign ambassadors there must be the consent of the central government so this time of getting consent is excluded in the Limitation Act when filing suit. Sections 12 to 15 deal with the time excluded from the period of computing the limitation period like the time requisite for obtaining a copy of the judgment, the time required for obtaining the copy of the award, etc. The main purpose of this Act is not to drag the case for a long period of time and aims for quick disposal of the cases.

WHETHER THIS ACT IS EXHAUSTIVE?

The Limitation Act is exhaustive as it deals with all the matters. The Act applies only to civil cases except in matters expressly and specifically provided for the purpose. It cannot be extended by analogy. In A.S.Krishnappa Chettiar v. Nahiappa Chettiar¹ case, it was stated that amending statutes relating to suits, and appeals to the courts must be regarded as exhaustive. Courts are not permitted to interpret beyond the provision as it is exhaustive already. There are certain rules for interpretation as the act itself is an exhaustive one. The rules of interpretation are –

1. The court cannot neglect or change the mandatory provisions. Eg if the time framing lapses then a reasonable cause must be given to the court.
2. If there is no specific limitation period then the court can fix a certain limited, reasonable period.
3. If there are two interpretations of a particular statute, then the court doesn’t need to follow strict interpretation.
4. Limitation statutes are given a fair and liberal construction rather than strict ones.

In Ramnath Prasad vs State transport Apellate² case, it was stated that Limitation Act is undoubtedly an exhaustive code. There is nothing in the Limitation Act to justify to the court that once the period of limitation has begun to run, it can be suspended except for the proviso mentioned in Section 9 of the Limitation Act. In Thirumalai Chemicals Ltd vs Union Of India³ it was stated that the statutes of limitation are retrospective as they applied to all legal proceedings that have occurred earlier and it is procedural.

LIMITATION BARS THE REMEDY NOT THE RIGHT

Limitation Act bars the remedy not the right, the plaintiff can prove that the suit is time-barred debt. Law of Limitation is a part of Lexi Fori because the contract is regulated according to the law of the place where the action is instituted. In Rullia Ram Hakim Rai vs S. Fateh Singh S. Sham Sher Singh⁴ case, it was held that the limitation does not stand in between the recovery that is time-barred. The court should dismiss the suit if it is filed beyond the time mentioned in the limitation act where section 3 states that the court will not proceed with the suit if it is time-barred. In Ittyavira Mathai vs Varkey Varkey⁵ case, it was stated that if the court makes an error of law, the error can be corrected in the manner laid down by CPC. If the aggrieved party did not take notice of the error then it is not challenged to nullity. Order 7 Rule 6 CPC states that if a suit is instituted after the limitation period then the person must show on the ground in which such exemption of law can be claimed.

There is no particular stage in which the plea of limitation can be raised. A party to the case can make the plea of limitation even in the 1^st appeal or in the proceeding appeal even though he may not have mentioned the plea of limitation in the written statement. If the period of any suit or appeal expires on the day on which the court is closed (on normal working days if closed) then it is preferred on the day on which the court reopens. The extension of time is given only in certain cases like if the party produces a sufficient cause of delay then the case is taken by the court under section 5 of the Limitation Act. A sufficient cause would be an adequate reason or reasonable ground for the court to believe that the person was prevented from filing the suit. For example, suppose during the limitation period the person was found Covid positive then the person will be prevented from filing the suit so this can be a reasonable cause so that even after the expiry of the limitation period the person can file the suit.

CONCLUSION

The Law of Limitation is said to be an exhaustive one and it has dealt with all civil matters, and if there is no limitation period mentioned for any civil matter then the court can fix a reasonable time for the civil matters. This Act keeps check on the case and makes sure that people are not harassed and the case is also not dragged for a longer period of time. The Act also provides an exception when there is a reasonable cause for the delay within the time prescribed for filing a suit. The court must hear the matter first and decide according whether the case should be taken or not. Law of Limitation plays a major role in a country like India so that people get justice on time. 

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REFERENCES

1. AIR 1964 SC
2. AIR 1957 Pat 117
3. SC; Civil Appeal 3191-3194 of 2011
4. AIR 1962 PH 256
5. AIR 1964 SC 407

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

INTRODUCTION

A person who works in prostitution is referred to as a prostitute or a sex worker. Prostitution is the practice or business where people participate in sexual behavior for payment. Prostitution can take place in a variety of settings, and its legal position varies from country to country as well as from region to region within a country. It can range from being an upheld or unenforced violation to being an uncontrolled or a directed vocation. In the same way that pornography or any other form of sexual entertainment is a component of the sex industry. Brothels are establishments that are solely focused on prostitution. Prostitution laws and conditions are generally changing globally, reflecting divergent judgments. Prostitution is perceived by some as a form of violence or cruelty against women and children that leads to the grave crime of human trafficking.

HISTORY OF PROSTITUTION IN INDIA

According to Indian history, prostitutes in the past were called “Devadasi,” and they gave their entire lives to serving Lord Krishna. Some religious beliefs hold that the Devadasis see the Gods as their spouses and, as a result, are not permitted to marry other human beings. Later referred to as “Nagarvadhu” or the “Brides of the town,” they were requested to perform for and by the wealthy and the aristocracy. According to historical experts, the royal families regarded the Devadasi with respect and deference, prior to British domination. No man, not even the Mughals and Kings, intended to even approach them. However, as the British entered the country, this stopped.

In front of the British commanders, the Devadasis started showcasing their talent, which led to the first one-night stands. The British started summoning these artists for sex, which prepared India for prostitution. The emergence of Devadasi as a prostitution business during the British era led to a decline in temple dances. As time went on under British control, the Indian economy shriveled and the majority of people struggled to make a living. Women then began trading their bodies for cash with the British populace.

Japanese women were captured and sent to India as sex slaves in the late sixteenth and early seventeenth centuries when some regions of India were Portuguese provinces. Another instance of the increased use of women as sex slaves was under the Company Rule in India. For its soldiers, the military constructed whorehouses all over India. Village girls and women were employed by the brothels and officially compensated by the military.

IS PROSTITUTION LEGAL IN INDIA?

When it comes to prostitution, there are three different types of nations.

• Where prostitution is prohibited and against the law, such as in Kenya, Morocco, Afghanistan, etc.
• Where prostitution is permitted with certain limitations and restrictions, such as in India, Canada, France, etc.
• In countries with appropriate legal regulations, such as New Zealand, Australia, Austria, the Netherlands, etc., prostitution is permitted.

One of the most important questions is whether prostitution is permitted in India, and if so, whether prostitutes have any rights.

In India, prostitution is permitted subject to several restrictions. It’s against the law to engage in activities including pimping, child prostitution, service solicitation in public areas, owning a brothel, and pandering. To address the issue of prostitution and trafficking, various state laws have been passed, including the Juvenile Justice (Care and Protection of Children Act) (JJ), 2015, the Indian Penal Code (IPC), 1860, the Prevention of Immoral Traffic Act (PITA), and the Constitution of India, 1950. PITA, formerly known as the Immoral Traffic (Prevention) Act of 1956, was enacted and put into effect after India on May 9, 1950, in New York, ratified the United Nations Declaration for the Suppression of Women Trafficking.

The penalty for operating a brothel is a fine of up to 2,000 rupees and a sentence of one to three years in prison. The punishment for child prostitution is seven years of hard labour, with the possibility of life in jail. According to Section 370A of the IPC, the offender who takes advantage of a youngster who has been trafficked faces a five to seven-year prison sentence. They are entitled to getting the fundament rights of a citizen promised to them by the Constitution.

COURT RULINGS

1.  Budhadev Karmaskar v State of West Bengal – The case dealt with the brutal murder of Chhaya Rani Pal alias Buri, a sex worker who succumbed to grievous injuries after being brutally beaten up by the accused, Budhadev.
2.  Gaurav Jain v Union of India – The Supreme Court, passed a request, coordinating inter alia, the constitution of a council to make a thorough investigation of the issue of prostitution, young girls, and their offspring, and to advance reasonable plans for their salvage and recovery.
3. Manoj Shaw & Manoj Kumar Shaw v State of Bengal – It was observed that sex workers should be treated as victims and not accused. When prostitution was busted, the prostitutes were put behind bars whereas the owner of the bar was merely sent a notice. This didn’t seem fair.

RECENT HIGH COURT JUDGEMENT

Kajal Mukesh Singh & Ors. v. State Of Maharashtra (2021)

‘Prostitution is not an offence; a woman has a right to choose her vocation’

1. A, B, and C, the petitioners
2. The State of Maharashtra is the respondent.
3. The Immoral Trafficking (Prevention) Act of 1956 declared that the petitioners were the victims of the crime of pimping. They are listed in the records as A, B, and C to avoid being identified. Three sex workers filed the petition in an effort to overturn the orders made by the Metropolitan Magistrate Mazgaon and the Additional Sessions Court Dindoshi, both of which supported the prior judgement.

Observation of the High Court: The Court emphasized that the act’s goal is not to outlaw prostitution or prostitutes; rather, what is punished is sexual exploitation, commercial sex, and situations in which someone is running a brothel or enticing someone else. As their fundamental rights are protected by Article III of the Constitution, they too have the freedom to live as they like and to practice their chosen profession. Since the victims are adults and have the same fundamental rights as regular citizens, their permission should have been sought before placing them in a corrective facility.

PROBLEMS OR CHALLENGES FACED BY SEX WORKERS IN INDIA

The sex workers in India face multiple traumas – sexual violence, emotional abuse, and physical assaults from clients. Their living conditions are appalling as well; crowded streets and cramped quarters are negatively impacting their health, which leads to an increase in health-related issues. HIV, STDs, and cervical cancer are on the rise amongst them as little action has been taken to improve their situation. Additionally, they experience crippling prejudice and stigma, which makes it harder for them to defend their health and wellbeing.

There are many reasons why prostitution continues to thrive in society. Ill-treatment by parents, bad relationships, disturbed family culture, social customs, lack of sex education, media image, rape, early marriage, and desertion are just to name a few. The rights of sex workers are in reality non-existent even though they appear just like other citizens on paper. Prostitutes are continuously looked down upon and have no place in society, most of them are exposed to a slew of abuses, and they face harassment from clients as well as their own family members.

LAWS RELATING TO PROSTITUTION IN INDIA

• Section 372 and 373 of the Indian Penal Code 1860 deal with prostitution but it is only restricted to child prostitution.
• Immoral Traffic (Prevention) Act – 1956
• The legislation governing sex work in India is the Immoral Traffic (Prevention) Act, enacted in 1956.
• The legislation penalizes acts such as keeping a brothel, soliciting in a public place, living off the earning of sex work, and living or habitually being in the company of a sex worker.
• Section 366 A, 366 B, 370A, of the IPC deal with punishment for offences of procreation with respect to a minor girl, importation of a girl from abroad for sexual purposes, and exploitation of a trafficked person respectively. Under IPC, laws relating to prostitution are quite limited.

SEX TRAFFICKING IN INDIA

For women and children who are victims of sex trafficking, India serves as a source destination and transit country. The majority of India’s trafficking issues are internal, and the most susceptible groups are those from the most economically and socially disadvantaged socioeconomic strata – those who belong to tribal & other backward communities. According to reports, thousands of unregulated labour placement firms use deceptive employment promises to recruit individuals and children into sex trafficking.

According to experts, sex trafficking affects millions of women and children in India. Traffickers subject women and girls to sex trafficking by making false work promises or setting up fictitious marriages in India or the Gulf states. In addition to typical red-light districts, tiny motels, cars, huts, and private homes are increasingly becoming the places where women and children are subjected to sex trafficking. In India, sex trafficking affects a large number of women and girls, primarily from Nepal and Bangladesh as well as Central Asia, Africa, and Asia, especially the Rohingya and other minority communities from Burma.

PROSTITUTION BEING LEGALISED

1. It will result in sex workers living better lives.
2. Labour rights will be given to sex workers.
3. The authorities will have the information necessary to monitor whether any minors are engaged in prostitution.
4. Forced Prostitution will not exist.
5. Fewer instances of trafficking and rape.
6. Financial empowerment. 
7. Reduction in minor sex workers.

 DEFENSIBLE PROSTITUTION–RELATED OFFENCES 

• Anyone who owns, operates, or aids in operating a brothel will be subject to a fine of up to two thousand rupees as well as a sentence of imprisonment of at least one year and a maximum of three years.

• Anyone who coaxes, buys, or kidnaps a girl with the intent to force her into prostitution faces a minimum sentence of seven years in prison and a maximum of fourteen years in prison as well as a fine of up to 2,000 rupees.

• Anyone caught holding a woman in brothels faces a minimum sentence of seven years in prison and a maximum of 10 years in prison.

• Any person who engages in prostitution within 200 m of a public area, such as a hostel, hospital, temple, etc., faces a sentence of up to three months in prison. When a kid is involved, the crime is punishable by a minimum seven-year sentence that could go up to ten years in prison.

• Anyone caught soliciting prostitutes faces a sentence of up to one year in prison or a fine of Rs. 500 on their first offence, and up to two years in prison on their second offence.

STEPS THAT SHOULD BE TAKEN IN ORDER TO FIGHT WITH PROSTITUTION

• The victims who are still of school-going age should have access to formal education, while adults should have access to non-formal education.
• All rescued victims who are not interested in education should get gender-sensitive, market-driven vocational training from the central and state governments in collaboration with non-governmental organizations.
• Rehabilitation and reintegration of rescued victims is a long-term process, recruitment of a sufficient number of qualified social workers and counselors in government-run institutions and homes, either on their own or in cooperation with non-governmental groups.
• It is important to promote legal literacy and awareness of economic rights, especially for women and adolescent girls.

CONCLUSION

Finally, it may be concluded from the study that it would be foolish to turn blind eye to it and act as though the system and its problems do not exist in a society where prostitution has been a long-standing profession and is still prospering as a business. By offering greater pay, health security, and protection, legalizing sex work will improve the quality of life for sex workers. Additionally, it will be a progressive move on the part of society to get rid of numerous societal ills like child prostitution, rape, sex trafficking. and other things.

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

India is home to a billion people, from various sections of society. People from all social classes are granted the same, equal status as a citizen of India without any prejudice, yet even in the 21st Century, we get to see violence towards women and the LGBTQ community. This research paper focuses on these issues of violence in India, and legislations that are doing their parts to ease those issues.

Domestic Violence in India

Within the Indian subcontinent, women were and still are victims of all forms of exploitation. Criminal, domestic, and social violence are all forms of violence against women. Rape, murder, female foeticide, and kidnapping are examples of criminal violence. Dowry deaths and sexual assault are all examples of domestic violence. Eve-teasing and inheritance rules that favor men are other forms of social violence.

According to the National Crime Records Bureau, 33,356 rape cases were registered across India in 2018. Many of these cases include a rapist who is well-known to the victim. Furthermore, these figures conceal the substantial number of rapes that go unreported by the victim. Violence against women is becoming more difficult to negotiate in the sanctity of marriage as marital rape is not a crime in India, according to the constitution.

Crimes against the LGBTQ+ Community

India ranks 84 out of 203 countries on the list of countries with the most hate crimes against the Pride Community and the LGBTQ+ movement. The daily struggles of having to endure assault and public humiliation at the hands of one’s own family and friends just for being themselves are still on the rise in India as the ranking slipped down two places since 2020. The decriminalization of Article 377 had little to no impact on Indian society since homophobia persists in almost all cultures in India.

We hear all kinds of ‘foul and based’ statements by people about boys being Gay just for wearing clothes that even have a slight ‘feminine’ appearance or blatantly calling girls ‘Lesbians’ or sometimes even slurs for being ‘a little too friendly’ with their friends of the same gender. The Supreme Court can only change laws, not the people’s minds. Due to the unavailability of proper education on understanding the pride community among the Indian masses, many people still consider that even supporting the LGBT let alone being from the LGBT+ community is a mental disease or addiction. This is seen with many parents sending their children who come out to be among the LGBT+ genders, to Drug Addiction Centers or to Conversion Therapy to make them ‘normal’ again.

Cases of teen suicide due to being sent for illegal conversion therapy at drug addiction centers are on a rise. Anjana Hareesh a 21-year-old came out to her family as a queer person. In a Facebook Live video on 13^th March 2020, she claimed that after learning of her admission, her parents were forced to enroll her in a “de-addiction center,” where she received a severe course of medication (which is illegal conversion therapy). The staff there slapped her when she tried to resist. Hareesh was later discovered hanging from a tree at a resort in Goa, exactly two months since posting the video. Gargi Harithakam, Anjana’s friend, claimed that she did not suffer from a drug or alcohol addiction as she was her roommate and a close friend.

Legality & Legal Precedents

The Indian Government has implemented various legislations to prevent and punish those who commit Domestic Violence, as well as laws that complement women’s health. Following are a few of the laws that benefit women in India.

• Protection of Women from Domestic Violence Act, 2005: Domestic violence is defined as any act that causes physical, emotional, sexual, or economic injury to the victim’s life, limb, health, or safety. It is a form of coercion in which one person exerts control over another by threatening the victim, depriving them of their property, physically harming them, and sexually abusing them. The abuser might harm the victim in a variety of ways. Domestic violence, for example, occurs when a woman is starved for three days by her husband.
• In terms of their extended reach and the extent to which they defy heteronormative patriarchal views of family and a woman’s “natural” role within it, the Act’s provisions are undeniably introducing rights into the house. According to the Act, domestic violence now includes violence in all forms of interpersonal relationships, including abuse in a woman’s natal home and partnerships in the “kind of marriage.”
• The Act analyses the frequency of violence against elder women, in addition to child abuse. By allowing women the right to reside in shared households irrespective of who owns the property, the Act expands the scope of the remedy. The Act categorizes males as perpetrators and women as victims, as well as sets a deadline for cases to be addressed.
• If a woman thinks she has been the victim of abuse by the offender or another person, she can file a complaint on her behalf. A child is also legally protected under the Domestic Violence Act. The parent of such a child can petition on behalf of her minor child.
• In the case of Dr. NG Dastane v. Mrs. S Dastane, the Supreme Court decided that the bedrock of a sound marriage is tolerance, adaptability, and respect for one another. In the case of Vinita Saxena v. Pankaj Pandit, the court ruled that each situation is unique and must be judged accordingly. As a result, the proper use and execution of any special legislation are dependent on the judge in question.
• Special laws can get lost in the shuffle of general legislation and end up going off the rails. As a result, it is up to a judge to prioritize the legislative aim as well as victim justice to serve as a deterrent to the perpetrating accused and society.
• From Right to Equality to complete Decriminalization; In the mid-2000’s the LGBT movement took a kickstart in India. Although it was a crime to engage in consensual sexual relationships of any kind other than between a man and a woman, the courts did allow people to voice their opinion in favour of the LGBTQ+ community. In the case of Naz Foundation v. Government of NCT of Delhi, the Delhi High Court stated that Article 14 of the Constitution protects consensual homosexual relationships and behaviour, and that criminalizing it will be a violation of the Right to Equality.
• The Supreme Court in the 2009 Delhi High Court Judgement of Suresh Kumar Kaushal v. Naz Foundation, in 2013 stated that with changing times, laws and society’s thinking change. Pointing to the fact that homosexuality was not accepted a few decades ago but is now widely accepted in many parts of the world, the apex court also stated that prior to the British colonial rule, homosexuality was prevalent in India, which can be seen from the statues, paintings, and murals on ancient temples and structures in India.
• It was not before 2018 that homosexuality was truly and completely decriminalized in India in the case of Navtej Singh Johar v. Union of India.

Government initiatives

1. National Database of Sexual Offenders; This is a database that was influenced by the Department of Justice National Sex Offender Website. Although, the list of the United States is available to be viewed publicly, in India only law enforcement officers can view it. Only law enforcement agencies will have access to the database, which will be kept by the National Crime Records Bureau under the Ministry of Home Affairs.
2. It will contain the names, pictures, home addresses, fingerprints, DNA samples, and PAN and Aadhaar numbers of those who have been found guilty of sexual offences. Based on information gathered from prisons around the nation, the database would include details of both first-time and habitual offenders for more than 4.5 lakh instances.
3. It will only contain information on those who are at least 18 years old. The name will be added to the registry each time a convict’s information is submitted to a jail.
4. State jails will be required to update appeals against convictions, and an accused person can be followed up until an appeal result in an exoneration.
5. One Stop Center Scheme; One Stop Center is a Ministry of Women and Child Development (MWCD) initiative that receives central funding to address the issue of violence against women. It is a part of the National Mission for Women’s Empowerment umbrella programme, which also includes the Indira Gandhi Mattritav Sahyaog Yojana. There will be one-stop centres set up all around the nation to offer comprehensive support and help to women who have experienced violence in both private and public settings under one umbrella.
6. Funding: The Nirbhaya Fund is used to finance the programme, and the state and union territory administrations receive full financial support from the federal government.
7. Auditing: Audits will be carried out as per the Comptroller and Auditor General of India’s standards, and civil society organizations will also conduct social audits.
8. Services: Women’s helplines and one-stop centres will work together to offer the following services: services for emergency response and rescue, providing medical care, aiding females in filing the First Information Report, psychological and counseling services, legal representation, advice, Shelter, a video conferencing system.
9. Privately-Run LGBTQ+ Suicide Helplines; With an increase in teenage LGBTQ+ suicide over the past few years, private organizations have been formed that are providing mental health care to people who identify with the LGBTQ+ community.
10. Organizations like Naz Foundations, Smiling Rainbow are among the few with helplines to care of LGBT issues in India. SAHAAY is among the very few organizations with its own toll-free LGBTQ+ suicide helpline number.
11. Organizations like these assist the upcoming generation to keep fighting instead of giving in to the pressure created by the small-minded people who try to suppress the Right of Equality and Freedom of Expression of homosexuals.

Data Analysis & Interpretation for Domestic Violence

Research conducted by The Wire showed the number of cases made under Section 498A of the Indian Penal Code, often known as ‘Cruelty by Husband or His Relatives,’ by the number of women in lakhs. The said the research was done to interpret the scope of domestic violence among women between 18 and 49 years of age.

When these figures are compared to the percentage of women who have complained about Section 498A of the India Penal Code, we see that domestic violence incidences are under-reported in 14 of the 20 states, or 70%. In Lakshadweep and Nagaland, Section 498A reporting is as low as 0, despite NFHS-5 figures indicating otherwise.

Domestic violence appears to be under-reported the most in Bihar, Karnataka, and Manipur, where the frequency of domestic abuse is around 40% or higher while incidence is less than 8%. Case files in Assam, Andhra Pradesh, Kerala, Telangana, Tripura, and West Bengal are greater than self-reported domestic abuse incidents.

Conclusion

Domestic violence can be controlled, but it will take a longer time to do so because India has extremely dynamic geographical landscapes and cultures, as well as diverse social norms, and connecting to a billion people is more challenging than locating a needle in a haystack. The community should pick ideal spouses that will not only act as role models for those other spouses but also educate other families in society on how to resolve conflicts in a nonviolent and courteous manner. Bringing domestic violence issues into the mainstream and altering social standards that emphasize civil behaviour can assist create an environment that supports behavioural change. On the other hand, the LGBTQ+ issues of violence and discrimination are still at a peak in India.

As stated before, the Supreme Court can only change laws, not people’s minds. Until a mass, national-level, mental block clearing initiative is created to educate the people about the LGBTQ+ community, there is no scope of ending homophobia in India anytime soon. Lessons on human reproduction are introduced in 8^th-grade biology in the Indian Education Boards, introducing chapters on gender identity and sexuality in 8^th grade can be the first step in expanding the scope of LGBT acceptance, as the age bracket of 12-14 is the onset of puberty and are also the stages of advanced development of the teen mind.

References

1. S. Payal, The Wire. Decoding the Decoding the Extent to Which Domestic Violence Is Under-Reported in India. February, 2021. https://thewire.in/women/domestic-violence-india-underreported
2. The Protection of Women from Domestic Violence Act, 2005.
3. Seth P., Decoding the extent to which Domestic Violence is Under-reported in India, The Wire, February 2021, https://thewire.in/women/domestic-violence-india-underreported
4. Dr. NG Dastane v. Mrs. S Dastane, 1975 AIR 1534.
5. Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277.
6. Suresh Kumar Kaushal v. Government of NCT of Delhi, Civil Appeal 10972 of 2013.
7. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
8. Vinita Saxena v. Pankaj Pandit, 17 (2003) DLT 44.

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

Introduction

Social Security is defined as the protection or security that is provided by a community to its members, ensuring that they have proper access to healthcare and a surety of a steady and regular income, especially during unemployment or post-retirement phases. It is classified as a basic human right by the United Nations. It is a benefaction-based system that supports sureties in case of unemployment, health issues, and pensions.

Since the beginning of civilization, humans have faced numerous economic breakdowns due to pandemics, natural disasters, and even unemployment. These breakdowns are a big threat to the economy even in the 21^st century. Through time we have seen that economic breakdowns have been predicted before they occurred, and hence the community as a whole started to create securities in form of food, finances, and even cattle, to be able to provide themselves with the security of a basic rightful living. With the advancement of times, and a formal specification of human rights, kingdoms and governments started to support the social security of their people, for ensuring a rightful living.

Types of Securities

• Traditional- Securities that are provided through friends and relatives, assets, work, or donation-driven charities are traditional securities or sureties.

• Modern- With the advancement in socio-economic status and development of cities, different organizations came up to provide their members with various economic sureties. Organizations, governments, and so on are modern types of security providers.

Beginning of ‘Social Security‘

With the discovery of the Americas, the English colonialists in the early 1600s brought with them their laws to set up a suitable system of governance. These laws were mostly based on providing support for the poor based on the taxes collected. But with the rise in slavery at the same time as they arrived, the lawmakers discriminated against the poor slaves from the poor whites. The slaves were regarded as undeserving of any support. During this era, the support that was provided was done in the most appalling way to discourage people from using it. People who used these services had their assets confiscated, and lost their voting and free movement privileges.

With the end of the American Civil War and after the confederacy surrendered and joined the Union, the then U.S. Government introduced a pension for the disabled Union veterans of the war, widows, and children of the soldiers who died during the war, on the other hand, the Confederate soldiers created and funded their own pension system. The pension for the Union soldiers depended upon the type of disability and their military rank, the lowest pension was $8 per month for a totally disabled private (lowest rank in the military). With the passage of the Dependent and Disability Pension Act in 1890 by the U.S. Congress, the earlier pension system was changed, and the veteran and other eligible people for pension received a lump sum amount of pension for the time between leaving the military and applying for a pension. Therefore, the Civil War Pensions can be classified as the first official Social Security system introduced.

International Labour Convention on Social Security 1952

In 1952, the International Labour Convention, an agency under the United Nations, stipulated the minimum standards of social security that should be provided. It is the only international instrument that supports basic social security support. These nine basic supports are-

1. Medical Care
2. Sickness Benefits
3. Unemployment Benefits
4. Old Age Benefits
5. Employment Injury Benefits
6. Family Benefits
7. Maternity Benefits
8. Invalidism Benefits
9. Survivor’s Benefits.

Social Security in India

The Indian social security system has been developed using the western example and systems that prevailed in modern industries. With the pressure and urges from social reformers, business leaders, and welfare organizations, social security was introduced in India and became the responsibility of the state to provide for the social security of the citizens of the country, as per Article 43 of the Indian Constitution. Numerous schemes and programs prevail through various laws and regulations in India, yet only a smaller section of the Indian masses receive the security provided by the government.

Policy for Social Security in India

• National Provident Funds
• Universal Social Security Schemes
• Employers Liability Schemes
• Insurance based on Resources and Beneficiaries Pooling Risks

Benefits to Workmen in India

1. Pension – In India, there are provisions for provident funds for employees engaged in corporations and are overseen by the Employees’ Provident Fund Organization, established within the Ministry of Labour and Employment. Schemes under the provident fund organization apply to all businesses with over 20 employees, and contribution to these funds is mandatory to be followed by the firms as well as the employees if they make INR 15,000 a month, while it is voluntary if they make more than that amount. Schemes provided under the Employees’ Provident Fund Organizations-

• The Employees’ Provident Fund Scheme, 1952– This is contributed by the employer and the employee. The employer contributes from 1.63% up to 3.67%, whereas the employee contributed from 10% to 12%.
• The Employees’ Pension Scheme, 1955– This is contributed by the employer and the government. The employer contributes 8.33%, whereas the government contributes 1.16%.
• The Employees’ Deposit Linked Insurance Scheme, 1976– Under this scheme, only the employer contributes 0.5%. Neither the employee nor the government contributes any amount. The pensions that are offered are- 1) Pension for Disability or Superannuation, 2) Pension for Military Widows, 3) Pension for Children and 4) Pension for Orphans.

2. Medical Benefit and Insurance – With the lack of universal healthcare in India, i.e., no free healthcare for the Indian masses and to provide the funds to ensure proper medical care to employees and their families; the government implemented the Employees’ State Insurance Act 1948. It also made available monthly cash benefits in phases of sicknesses, pregnancy, and in cases of deaths or injuries to employees in organizations with at least 10 employees. The monthly coverage was extended to all employees that made less than INR 21,000 a month under the Employees’ State Insurance (Central) Amendment Act, 2016. Maternity benefits were also improved under this Act.

3. Benefit for Disability – Employers have been mandated to compensate employees and their families in case of injuries or death at the workplace under the Employees’ Compensation Act, 1923. Seclude I part I and II of the Employees’ Compensation Act provide for injuries that include partial or permanent disablement, while Section III, Part A, B, and C provide for Occupational diseases. Compensation for disabilities suffered due to employment is estimated as below;

• In the case of permanent disability; 60% of the monthly wage is multiplied by the age of the disabled, or an amount of INR 90,000, whichever is more.
• In case of death; 50% of the monthly wage multiplied by the age of the deceased or an amount of INR 80,000, whichever is more.

4. Benefit for Maternity – For women, maternity leave in India is a paid maternity leave that lasts up to 26 weeks for the first two children and 12 weeks for the third child, as enforced through the Maternity Benefit (Amendment) Act, 2017. This Act also provides for maternity leave for women who have adopted a child less than 3 months as well as for mothers who underwent surrogacy. Every woman is entitled to receive the average daily wage during the timespan of the maternity leave and a medical bonus of INR 3,500, as per the maternity Benefit Act, 1961. A 6-week paid maternity leave is also applicable in cases of miscarriage, and a month of paid leave due to medical complications.

5. Gratuity – A corporation with at least 10 employees must support an added 15 days of wages to those employees who have worked for at least 5 years with the firm. It is a cash benefit provided by the firm to the employee as a lump sum. However, payment of gratuity can be refused if the employee has been terminated due to misconduct. The formula to calculate gratuity is (15 X last drawn salary X years of service) ÷ 30.

Conclusion

Social Security is an important instrument in supporting a sustainable life for all people in need of such support, and to feel accepted at the workplace. Irrespective of whether a person is above the poverty line or not, Social Security should be provided to all citizens and eligible non-citizens. It is not a free money handout from the government, it is the social support that provides for the better living standards of people in the community, so there are no disruptions in the peaceful continuance of society. With the legislation brought abroad and in India, the governments have ensured that their people do not suffer or are not being taken advantage of by corporations. Maternity long and paid leave for women and provident fund are some of the policies that have been updated every few years to keep up with the changing thought environment of the people. With such dynamic upliftment, the interest of the employer and the employee are considered equal with the core focus on the joint satisfaction and interest of both.

References

1. Facts on Social Security, International Labour Organization, https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_067588.pdf.
2. Civil War Pensions, Centre for Civil War studies, Virginia Tech https://www.essentialcivilwarcurriculum.com/civil-war-pensions.html.
3. Civil War Pensions and Disability, Ohio State Law Journal Vol 62:109.
4. Employees’ State Insurance Act, 1948.
5. The Workmen Compensation Act, 1923.
6. Social Security (Minimum Standards) Convention, 1952 (No. 102).

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

OVERVIEW

All facets of road transport vehicles are governed under the Motor Vehicles Act¹, an Act of the Indian Parliament. The Act details the legislative requirements for driver and conductor license, vehicle registration, permit-based motor vehicle control, special provisions for state transportation undertakings, traffic law, insurance, liability, offenses, penalties, etc. The Central Motor Vehicles Rules2 was created in 1989 by the Indian government to implement the legislative provisions of the Act. The Motor Vehicle (Fifth Amendment) Act of 2022 implemented the most recent of the Act’s five amendments, which have been made since it went into effect in 1988.

Sections 50 to 57, including Section 93 of the Motor Vehicle (Amendment) Act, 2019 were notified by the Central Government. Insurance of motor vehicles against third-party risks, that were covered under Chapter IX of the Motor Vehicle Act, 1988 has been replaced by Section 51 to 57 of the Motor vehicle (Amendment) Act, 2019. Similar amendments have also been made regarding the filing of claims before the motor accident claims tribunal under sections 163, 166, 168, and 169 of the Motor Vehicles Act 1988. The second schedule of the Motor Vehicle Act, 1988 under Section 163A, which provided for the structural formula for non-fault basis compensation has also been omitted, by Section 93 of the Motor Vehicle (Amendment) Act, 2019.

AMENDMENTS MADE TO THE ACT

• Omissions under Chapter X of the Motor Vehicle Act, 1988- Provisions of interim compensation, that came under no-fault liability, i.e., Sections 140 to 144, are omitted and no other interim compensation has been made available in the motor accident claims.
• Replacement of Chapter XI- Insurance provisions for Motor Vehicles relating to third party risks, i.e., Sections 145 to 164, were replaced with new provisions as under Section 145 to 164D.

NEW PROVISIONS MADE UNDER THE REPLACEMENT OF CHAPTER XI

• Section 149 (1) Designated Officer to be appointed by the Insurance firm within 10 days of an accident- A designated officer shall be appointed within 10 days upon receiving accident information by the insurance firm. The accident information shall be received through an Accident Information Report or by the claimant himself. All claims relating to any such accidents would be settled by the designated officer.
• Section 149 (2) Insurance firm’s settlement offer- As per rules prescribed under the Central Motor Vehicles Rules, the Designated Officer is responsible for making a settlement offer on behalf of the insurance firm within 30 days.
• Section 149 (3) (a) Award of Consent by Claims Tribunal- The Claims Tribunal will pass an award based on the recorded settlement, enforcing the insurance firm to make complete payment of the claim within 30 days of the recording of settlement, if the claimant accepts the offer made by the Designated Officer.
• Section 149 (3) (b) Rejection of Settlement Offer by Claimant- The Claims Tribunal, shall amend the date of hearing, upon a rejection of the settlement offer by the claimant, and shall adjudicate the claims upon merits.
• Section 150 – Satisfaction of Award or Judgement against persons insured under third party risks is the responsibility of the Insuring firm- Irrespective of the fact whether the insurer could avoid, cancel, or may have avoided and canceled the policy in the past, the insurance firm would still be responsible for the payment of the compensation. The insurance premium paid by cheques that were dishonored has become a strong defense for insurance firms, and they may claim that policy’s premium was not received by the firm. Under Section 185, driving under influence has also been added as a defense to be used by Insurance firms.
• Section 156 – Insurance firm cannot refuse a claim after the death of the insured in an accident- Under this new provision, if an insured person dies in an accident, the insurance firm cannot withhold or refuse to give a Motor Accident Claim.
• Section 158 (1) All documents relating to vehicle’s use shall be duly presented by the driver- All documents like the driver’s license, fitness certificate, insurance certificate, vehicle registration, and so on should be presented to the Police Officer by the driver of the vehicle.
• Section 158 (2) All documents relating to the accident to be produced are the owner’s responsibility- All documents as mentioned above, if not presented by the vehicle’s driver, it is hence the owner’s responsibility to present documents to a police officer.
• Section 159 – Accident Information Report to be filed at the Claims Tribunal within three months by the Police Officers- As per the new provisions, the responsibility to file the Accident Information Report within three months of the accident lies with the police officers.
• Section 160 – Furnishing particulars of accidental vehicles to the claimants is the responsibility of the Police Officers and Registering Authority- Upon the payment of all fees prescribed, it is the duty of the Police Officers and Registering Authority to provide information about the accident to the claimant.
• Section 161 – Increase in Hit and Run Compensation- According to the new provisions, the compensation for hit and run claims has been increased from INR 25,000/- to INR 2,00,000/- in cases of death of the claimant, and from INR 25,000/-to INR 50,000/- in cases of injury.
• Section 162 – Golden Hour Scheme– Section 2 (12A) defines Golden Hour as the period of one hour after suffering a life-threatening injury during an accident, during which death is prevented by providing immediate medical care. This provision ensures that the Insurance firms provide cashless treatment of victims of road accidents during the Golden Hour period.
• Section 164 – No-Fault Liability related compensations– Structured formula for no-fault liability compensation, which was provided under Section 163A in the second schedule of the Motor Vehicle Act, 1988, is omitted under Section 93 of the Motor Vehicle Act, 2019. The claimant of such compensations under section 164, cannot claim compensation under Section 166 of the Motor Vehicle Act. The monetary compensation for such claims stands at INR 5,00,000/- in case of claimant’s demise and INR 2,50,000/- in case of life-threatening injury, without proving the driver’s negligence.
• Section 164 (A) Scheme-making powers to grant interim relief- The Central Government shall possess the power to make schemes to grant interim relief to claimants, under Section 164 (A).
• Section 164 (B) Funds for Motor Vehicle Accidents- The central government has the power to form a separate fund for Motor Vehicle Accidents to facilitate mandatory insurance to cover all the roads in the country. The fund may be put in use to provide medical treatment for injured persons in a road accident and in the case of a hit and run the fund is used to reimburse the next of kin of the dead or to the person who suffered life-threatening injuries. The central government can pay compensations to persons out of this fund under Section 164 (B). Rules can be put in place to whom compensation can be paid under section 164 (C)(2)(W). The central government has the authority to decide the maximum amount of liability to be paid to a person under Section 164 (3)(D).
• Section 164C – Rule Making Power of Central Government- The central government can put regulations in place to undertake the provisions of Chapter XI through Section 164C, including the form of Accident Information Report, submitting claims to the tribunal in which manner and time, regulations of making compensatory payments under Section 164(1). Through Section 164A (2), it can recover funds for the scheme and may credit the income source into the Fund for Motor Vehicle Accidents under Section 164B (1).
• Section 166(3) Compensation making limitations- Through this provision, a six-month period of limitation has been introduced since the accident occurred, to apply for the filing of compensation. No period of limitation existed before this provision was introduced.
• Section 166(5) After the demise of the injured, the legal representatives are permitted to continue the claim– The legal representatives of the diseased who was previously injured, are allowed to continue the claim after the demise of the injured, only if the death is related to or has some connection with the injury.
• Section 173(2) If the award of claims is less than INR 1,00,000/ no appeals are permitted- Under this provision, if in a dispute the award of claims is less than INR 1,00,000/-, then there shall be no appeals permitted against the Claim Tribunal’s award as under Section 173(2).

CENTRAL MOTOR VEHICLES (FIFTH AMENDMENT) RULES, 2022

The Central Motor vehicles (Fifth Amendment) Rules, 2022 provide for procedures to investigate and adjudicate Motor Vehicle Claims. These rules came into force on 1^st April, 2022 and regulated the timeframe to complete all investigations and adjudication within six months to one year. All the claimants shall receive their claims within one year of the accident due to this provision. Following are the rules that were formed by the Delhi High Court in the case of Rajesh Tyagi v. Jaibir Singh³ for the speedy settlement of motor vehicle accident claims-

• Form – I i.e., the First Accident Report shall be filed at the Motor Accident Claim Tribunal by the Police Officers within 48 hours of the accident.
• The victims should be made aware of their rights by the police officers within 10 days of the accident under Form II.
• Within 30 days of the accident, the driver of the offending vehicle should submit driver’s Form III to the police officers.
• Within 30 days of the accident, the driver owner of the offending vehicle should submit owner’s Form IV to the police officers.
• Upon the verification of the owner and driver’s forms, the police officers must submit an Interim Accident Report to the Motor Vehicle Accident Claims Tribunal within 50 days of the accident.
• Within 60 days of the accident, the victim must submit the victim’s form VI and VI(A) to the police.
• Within 90 days from the accident, the police must submit the Detailed Accident Report Form VII to the Motor Vehicle Accident Claims Tribunal.
• Within 30 days of the receipt of the Detailed Accident Report, the insurance firm shall verify the victim’s form VI and is then required to submit its findings and offer of settlement before the Motor Vehicle Accident Claims Tribunal.
• The Claims Tribunal will pass a Consent Award within 6 months of the accident, if the insurance firm accepts the liability and submits a fair claim offer.
• If the amount offered by the insurance firm is not fair and is not accepted by the claimant, the Claims Tribunal shall allow arguments from both sides with respect to the compensation quantum and pass an award within 9 months of the accident.
• The Claims Tribunal shall conduct an inquiry that would be completed after 12 months of the accident if the Insurance firm disputed the liability.

CONCLUSION

Hence, with the new provisions in place we get to know that the central government has taken up the responsibility to ensure that the vehicles on the Indian roads are insured, and the centre may allocate funds to individuals for the reimbursement of damages suffered by victims of hit and run cases, using the Motor Vehicle Accident Fund. We can also see that steps have been taken to increase the compensatory amounts in case of injury and deaths, the reason behind which may be to facilitate the legal representatives and the next of kin in much better ways. We can also infer that in case of long-lasting disputes, the central government can provide interim relief to victims. Therefore, we can conclude by inferring that the new amendments that have been brought into place have been done so to better facilitate the motor vehicle damage claims, the results of which have started to be seen already.

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CITATIONS

1. The Motor Vehicles Act 1988, available at https://legislative.gov.in/sites/default/files/A1988-59.pdf
2. Central Motor Vehicle Rules 1989, available at https://morth.nic.in/central-motor-vehicles-rules-1989-1
3. Rajesh Tyagi v. Jasbir Singh, IV (2010) ACC 859.

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

Data security is one of the most overwhelming errands for itself and info-sec experts. Every year, organizations of all sizes spend a sizable part of their IT security financial plans safeguarding their associations from programmers’ goal of accessing information through beast force, taking advantage of weaknesses, or social designing. All through this guide are joined that will assist you with more deeply studying the difficulties connected with getting touchy information, guaranteeing consistency with government and industry commands, and keeping up with client security. Alongside the difficulties, you’ll track down guidance on the most proficient method to tackle them.

Aarogya Setu is a versatile application created by the Government of India which interfaces the different fundamental wellbeing administrations with individuals of India. The application is assuming a critical part in our consolidated battle against COVID-19 and presently, has developed as the National Health application to serve individuals of India excellently. The application has concocted an instinctive User Interface and extensive highlights like ABHA (Health ID) creation, disclosure, and connecting of wellbeing records to empower longitudinal computerized wellbeing records, Simplified Consent Management for sharing these records, and a Seamless Search element to find Nearby Hospitals, Labs and Blood Banks.

Aarogya Setu, a COVID-19 following Indian application created by the National Informatics Center under the Ministry of Electronics and Information Technology, was sent off on 2 April 2020. This application is intended to monitor every one of its clients whether they are experiencing the Corona infection illness or have been in ongoing contact with any such individual. The application targets expanding the drives of the Government of India, especially the Health Department in proactively contacting and educating the clients regarding the application concerning the dangers, practices to stay away from them, and significant warnings relating to the regulation of COVID-19. It likewise interfaces fundamental well-being administrations with the resident to battle against COVID-19.

On 14 April, Prime Minister Narendra Modi addressed the entire country to download the App. This App utilizes the telephone’s Bluetooth and GPS framework to keep a record of the well-being status, everything being equal. These records are put away till the client tests positive or pronounces side effects through a self-evaluation study by the application. The information gathered by the application is extensively partitioned into 4 areas segment information (name, portable number, age, orientation, and so forth), contact information (like the general distance between people), self-evaluation information (client’s reaction to the review by Aarogya Setu) and area information (geological area of contact with different clients), altogether known as reaction information.

WORKING ON THE APP

After introducing the application, it gets going with requesting verification joined by the client’s versatile number, trailed by security and protection notice about subtleties which the application will gather. The application demands admittance to the gadget’s Bluetooth and GPS and afterward start the self-evaluation review for certain extremely fundamental inquiries like name, age, orientation, country, side effect agenda (for hack, fever, diabetes, lung sickness, coronary illness, and so on), nations went in most recent 30 days and expert subtleties (medical services laborers/conveyance labor force/police/policing/drug specialist/supermarket specialist/drug specialist/industry laborers). Then, at that point, the dashboard of the application includes the gamble level box illuminating whether the individual is under okay or high gamble class.

DATA COLLECTED AND MANNER OF COLLECTION

(a) When you register on the App, the accompanying data is gathered from you and put away safely on a server worked and oversaw by the Government of India (Server) – (I) name; (ii) telephone number; (iii) age; (iv) sex; (v) calling; and (vi) nations visited over the most recent 30 days. This data will be put away on the Server and a special computerized id (DiD) will be pushed to your App. The DiD will from that point be utilized to distinguish you in all resulting App-related exchanges and will be related to any information or data transferred from the App to the Server. At enrollment, your area subtleties are likewise caught and transferred to the Server.

(b) When two enlisted clients come surprisingly close to one another, their Apps will consequently trade DiDs and record the time and GPS area at which the contact occurred. The data that is gathered from your App will be safely put away on the cell phone of the other enrolled client and won’t be opened by such another client. On the occasion such other enrolled client tests positive for COVID-19, this data will be safely transferred from his/her cell phone and put away on the Server.

(c) Each time you complete a self-evaluation test the App will gather your area information and transfer it alongside the consequences of your self-appraisal and your DiD to the Server.

(d) The App constantly gathers your area information and stores safely on your cell phone, a record of the relative multitude of spots you have been at brief stretches. This data might be transferred to the Server alongside your DiD, (i) assuming you test positive for COVID-19; or potentially (ii) assuming your self-proclaimed side effects demonstrate that you are probably going to be tainted with COVID-19.

(e) If you have tried positive for COVID-19 or on the other hand assume a high probability of you is being tainted, you have the choice to press the Report button on the App which will permit you to either demand a test or report that you have tried positive for COVID-19. The back-end server investigates the bluetooth contacts transferred by enrolled clients who have tried positive for COVID-19. Assuming you have interacted with such people, in light of the contacts transferred from their cell phones your gamble level will be fittingly refreshed. At your only choice, you can likewise get more refined contact following outcomes by squeezing the Report button/Upload information button and consenting to transfer contact information from your cell phone to the Server. On such occasion the information gathered under Clauses 1(b) and (d) and safely put away on your gadget will be transferred to the Server with your assent. At the point when you press the Report button/Upload information button or potentially consent to transfer your information to refine contact following outcomes, the information gathered under Clauses 1(b) and (d) and safely put away on your gadget will be transferred to the Server with your assent.

(f) The App will gather the name, age, orientation, telephone number, address, and ID Proof data of the client, with the end goal of enrollment for COVID-19 inoculation. The enlistment for COVID-19 immunization is discretionary and the information will be gathered with the client’s assent, assuming the client selects enrollment with Coronavirus inoculation through Aarogyasetu App.

(g) The App will work with the confirmation of the User character through the Aadhaar Number of the client with the end goal of enlistment for COVID-19 immunization. The Aadhaar number will not be put away by Aarogyasetu App.

(h) The App will work with the download and reserving of COVID-19 immunization endorsement and COVID-19 inoculation enrollment slip/receipt, through verification of the recipient’s versatile number and recipient ID. For working with this download, the application will require media access consent on the client’s gadget.

CONVENTION BY GOVERNMENT

The convention for the COVID-19 following application was given by the Ministry of Electronics and Information resting rules for sharing the information of Aarogya Setu clients with government organizations and outsiders also. This then brought about the discussion of the protection of the information shared on the application. As indicated by the convention, the reaction information might be shared where it is “stringently important to figure out or carry out suitable wellbeing reaction straightforwardly”.

The information might reach the application’s designer i.e., National Informatics Center, Health Ministry, branches of state/UT/neighborhood government, National Disaster Management Authority, general wellbeing organizations of focus, and state and nearby bodies. The convention additionally sets out that the information been shared will stay for 180 days and afterward naturally erased after the period. This convention will be in force just for a half year from the date of issue.

BARRIERS FOR ADOPTION

For Aarogya Setu to be powerful, the application should be introduced on however many telephones as would be prudent, and clients should routinely refresh their wellbeing status so local area communications can be delineated. The improvement group expressed that no less than half of the populace ought to in a perfect world have the application introduced on their telephones, however, this edge might differ among metropolitan and provincial regions. The tele-thickness in India is extremely slanted in the metropolitan regions when contrasted with the country’s hinterlands. In this way, while it very well may be simpler to raise a ruckus around town limits in huge metropolitan urban communities, it will be undeniably more challenging to guarantee inclusion in provincial regions subsequently reducing the viability of the application in recognizing cases in the medium term as the pandemic spread expansions in country regions.

The Karnataka high court has likewise limited the Center and the National Informatics Center from sharing information of clients who got through the application without their agreement because of a request documented by protection dissident Anivar Aravind.

“At first sight, we hold that there is no educated assent regarding clients of Aarogya Setu application taken for sharing of reaction information as given in the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020, as there is no reference to the expressed convention in the terms of purpose and security strategy accessible on the application,” a division seat of Chief Justice Abhay Sreenivas Oka and Justice Viswajith Shetty said.

The court, notwithstanding, declined to remain the utilization of the application or utilization of information of the clients previously gathered through it. During the pendency of the request, the solicitor had looked for a heading from the court to limit the Center from continuing with the application and with the information gathered, in any way, whether the assortment of information from the individuals from people, in general, is expressed to be deliberate or compulsory.

PRIVACY ISSUES

The Aarogya Setu application is like the contact following application created by Google and Apple and depends on Bluetooth innovation. In any case, not at all like Apple and Google, it additionally gathers GPS area information. Once introduced, the application first gathers the accompanying segment information from clients: name, orientation, age, calling, travel history and phone number. These subtleties are then hashed to a special gadget ID and transferred to a focal information base. Regardless, the server will be on Amazon Web Services and then, at that point, moved to a NIC server. The application requires Bluetooth and GPS to be turned on constantly and takes administrator access to the Bluetooth settings. Administrator access to gadgets is a security risk as the application can take a lot of information than required.

At the point when two gadgets come into nearness, they trade these IDs with one another. Specialists call attention to the fact that the application utilizes pseudo-static ID rather than the more security safeguarding dynamic pseudo ID similar to Singapore’s contact following application. The area and Bluetooth gadget communication records are put away locally on the telephone, however, when a client begins enlisting side effects of COVID-19, the framework will transfer this information to the local server. Their gadget cooperations are then followed and outlined to show bunches or on the other hand assuming that there are COVID-19 positive patients close by. Authorities say that 15,000 individuals’ area and Bluetooth information has been transferred to the local server.

Additionally, there is no regulation insight regarding the insurance of the web-based protection of Indians, making the clients of the Aarogya Setu application acknowledge the security strategy given by the public authority. There ought to be more straightforwardness in regards to the internal working of the application, particularly when it is advanced by the public authority itself and requests individual subtleties of the resident of the country.

CONCLUSION

The pandemic is a general well-being crisis and individual privileges should be tempered with public reason and everyone’s benefit. Notwithstanding, the Indian government will in general view residents’ information as a characteristic asset to be taken advantage of and adapted. It turns out to be more critical than Aarogya Setu fix its concerns of prohibition for viable wellbeing observing as opposed to building more capabilities. There is a requirement for the public authority to show the viability of the application to fabricate trust among residents and bleeding edge well-being laborers.

REFERENCES

1. Aarogya Setu: Conflicts, https://www.orfonline.org/expert-speak/aarogya-setu-app-many-conflicts-67442/ ( last accessed on 17 July, 2022).
2. Data Governance Policy and the Road Ahead, https://www.barandbench.com/columns/data-governance-policy-and-the-road-ahead ( last accessed on 17 July, 2022).
3. Aarogya Setu and Data Privacy, https://thewire.in/law/karnataka-high-court-aarogya-setu-data-privacy ( last accessed on 17 July, 2022).

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC , HOSHIARPUR.