#lawstudent – Page 71

The Personal Data Protection Bill, 2019 was introduced in the Parliament on December 11, 2019, and is based on the draft law presented by the Ministry of Electronics and Information Technology, by a nine-member committee of experts led by Justice B.N. Srikrishna in July 2018. A significant Supreme Court judgment to the Bill is the K.S. Puttaswamy vs. Union of India, wherein a nine-judge bench upheld the importance of the right to privacy as guaranteed under Article 21 of the Indian Constitution. The Personal Data Protection Bill, 2019 aims to protect the privacy of individuals concerning their personal data and regulates the relationship between individuals and entities that process their personal data. At the same time, it aims to create a resilient digital economy by ensuring innovation through digital governance. Key provisions of the Bill are ‘Data localization and individual consent would be required for the processing of personal data. Data Protection Officer to be appointed by the Significant Data Fiduciary, and instituting grievance redressal mechanisms to address complaints by individuals.

Key provisions of the Bill

Applicability: The processing of data to be done within the territory of India by either the government, any individual in India or any foreign company having the data of people in India.
Data Fiduciary: Data fiduciaries are bound to have a transparent way of processing data, make sure the data is secured with the necessary safeguards, the data processed should have a lawful purpose, notice is supposed to be given to the individual whose data is being processed and the consent of the individual should be taken for the processing of data.
Consent: There are cases where the consent of the individual is not taken for the data processing. If the data is processed for any legal proceedings, by the government for the benefit of the individual, reasonable purposes.
Data Principal: The data principal has the right to know the information about the data fiduciary, right to erasure of data, make corrections in the data, restrict the data or remove the data (except the sensitive data)
Data Protection Authority: The Data Authority makes sure that the data is not being misused and the processing and usage of the data is in compliance with the provisions of the Bill.
Transfer of Data: Sensitive personal data can be transferred outside the territory of India with the consent of the individual. Whereas the critical personal data cannot be transferred outside the territory of India.
Exemptions: The Government has the right to remove any agency given in the provisions of the Bill, for the security and integrity of the country.
Penalties: Penalties up to five crores for violations.

Comparison to International Conventions

Comparing the provisions of the European Union’s General Data Protection Regulation (GDPR), Brazil’s General Data Protection Law and India’s Personal Data Protection Bill (PDPB).
The GDPR definition of Personal Data is specific to information used to identify an individual whereas the PDPB definition of personal data is broader including profiling and interpretation of the data with any other information is in accordance with it.
The GDPR ensures the basis for processing, whereas the PDPB does not provide a necessary basis for the processing of data.
The requirements for consent under PDPB are more flexible when compared to the GDPR, where there are certain contractual necessities to be fulfilled.
In cases where the users withdraw their consent of their data, it is not specified in the new 2019 bill whether the consent would be asked as the Bill fails to address such issues. Whereas GDPR has provisions to re obtain user consent in the transition plan.
There are over 10 lawful bases for processing the sensitive data under the GDPR, whereas the PDPB does not have such detailed provisions.
The PDPB allows the individual to ask the data fiduciaries to delete their data with them, but this does not include the personal data (name, email address, home address and phone number). Whereas, GDPR gives the right to the individual to ask to delete all data from the data fiduciaries.
The Bill does not give the individual a solid right on the ownership of their data, whereas Brazil’s General Data Protection gives assured ownership to the individuals on their personal data.

Criticism

Even though the copy of the data is within the territory of India, the encryption keys can still be not in the reach of the national agencies.
In every provision that gives the government power over the data, the term ‘national security’ or ‘reasonable use’ is used which is not defined in the Bill and is very vague.
Even though the Bill aims for transparency, the Right to Information Act cannot be used to know the processing of the data by the government.
No clear provisions on the implementation of the Bill.
No solid ownership right is given to the data principal over their data.
No obligations on the data fiduciaries to notify the affected individuals in case of data breach.

Advantages

Data Localization can help in investigations in law enforcement agencies.
Cyber-attacks can be kept on check.
Fake news, or wrongful propagandas that is a threat to national security can be kept in check.
Increase Data Sovereignty in the country.
Data localization can help in increasing tax on the internet bodies in the country.

Suggestions

Although this bill has some loopholes or flaws that need further consideration, such as not properly attending to the concern regarding the right to privacy, ambiguity about the functioning of DPA, etc. If the government really wants this bill to be successful, then you

need to relax your guidelines on cross-border data transfer, the operation of the DPA in the actual sense of the word to make it independent,
to include retired judges of the Supreme Court or the Supreme Court and persons with experience in the field of data protection in the DPA.
To give the individuals full ownership over their personal data, give proper clarification on the provisions and implementation of the Bill,
to re obtain the consent from the user and to give RTI Act precedence in circumstances of breach or conflict.
Government should give lawful and reasonable exemptions to its national security agencies such as the Central Bureau of Investigation (CBI), Research and Analysis Wing (RAW), Intelligence Bureau etc. so that they can use personal and non-personal data for detection of criminals and prevention of any cognizable offence.

The article has been written by Hiranmayi Rajeev, a 2nd-year law student at Alliance University Bangalore.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith, Jaipur.

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The caste system is a hierarchical system that divides society into different groups of individuals. According to the Hindu system, these groups are called Varnas. The first or the superior Varna is the Brahmins, who perform rituals at the temple and are considered the most educated and respected. The second Varna is the Kshatriyas, who are warriors. The third Varna is the Vishay’s, who are traders or businessmen. The fourth Varna is the Shudras, who are the working class and are considered very low. Before, there was a fifth group, who were called the ‘untouchables.’ Even though untouchability is removed in society, those individuals are now referred to as Dalits.

This system of caste has been criticized as the upper caste suppresses the lower caste. To eradicate this issue, the Indian Constitution banned the practice of discrimination based on one’s caste and also provided a reservation system, which reserves a certain number of seats in education and job opportunities for the individuals of the Scheduled Tribes, Scheduled castes, and the OBC’s.

India has been a country that is very sensitive to topics like caste and religion. Even though laws have been prevailing to eradicate caste discrimination, even now, in the 21st century, case discrimination can be seen in our society. Dalits are still considered low status in society and are not treated well. At times of disasters, Dalits are given no preference in providing safety measures or relief. Dalits also face police brutality, many of which are not even registered according to the National Campaign on Dalit Human Rights (NCDHR). In the current context of COVID-19, Dalits are assigned to cremate the bodies of individuals who died due to the COVID-19. In such situations as well, some individuals from the upper caste refuse to agree to cremate their family member’s body as the rituals are done by a Dalit. These incidents highlight the discrimination that the Dalit face.

Now, let us look into ‘Dalit Lives Matter’(DLM). The DLM protest was compared to the US protest of Black Lives Matter (which was started after the incident of George Floyd, a black man who died due to police brutality). But unlike racial discrimination, caste discrimination in India is multi-layered. The DLM started in 2020 after the gang rape case of a 19-year-old Dalit girl from the state of UP. The girl was gang-raped by four men and even the police did not take any emergency actions on the same. The girl’s dead body was cremated by the police without the permission of her parents and family, without giving a chance for them to see her before the rituals. This incident shows how caste and gender discrimination and violence still prevails in India. There was various other death that happened over the years, almost all of them left without justice.

The upper caste is well known for their superior position in society and takes advantage of the same by suppressing the lower caste. But will these Dalits find a way out when they are not educated about their rights, or the ones that try to voice out are being shunned by officials like the police? There are so many cases that happen in rural India that go unregistered and unattended. It is high that the state officials take action against caste discrimination. Nearly a century ago, BR Ambedkar was able to bring in rights for the untouchables because he stood against caste discrimination. Hence, the ruling party or the state officials need to stand against caste discrimination to eradicate such discrimination from society.

But only movements and protests are also not enough. The Dalit community has been living in the shade for years together now, the injustice that happens to them is something that is normalized that they do not find a way out of this loop. Hence to break this loop, it is important to educate the individuals of the Dalit community on their rights.

Now, let us apply the principle of Article 15 to this. Article 15 of the Indian Constitution states that the ‘state shall not discriminate any individual based on their religion, place of birth, race, and caste. The state is given such power so that it uses the same for the upliftment of the lower groups of the society and given them an equal place in the society similar to the privileged groups. Hence, this Article can be applied to the current topic of discussion, caste discrimination. This article is an addition to the principle of Article 14, which states that every individual should be treated equally under the law, that is fair and justifiable to all individuals and to remove any kind of discrimination. It gives fair treatment between the equals and unequal.

These Articles were made under the Constitution because, since the time period of pre-independence, the minority community has been shunned by the upper communities. The State was given the power to make laws to eradicate any such discrimination. Under Article 15, there are Acts like the Scheduled Caste and Scheduled Tribes Prevention Act, 1989, and Caste Disabilities Removal Act, 1850. Anyone who violates the provisions of these Acts can be held liable and given punishment.

Therefore, these laws should be applied in the matter of Dalit people’s rights and eradicate caste discrimination. New Acts with more strict policies should be initiated by the government that also hold the officials like the police, accountable for their actions on caste discrimination.

The article has been written by Hiranmayi Rajeev, a 2nd-year law student at Alliance University Bangalore.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith, Jaipur.

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United Nations Commission On International Trade Law: History

UNCITRAL which in full stands for United Nations Commission on International Trade Law is a body established by the United Nations Assembly on the 17^th December 1966. The UNCITRAL headquarters are in Vienna (Austria). The purpose of the abovementioned commission is to promote the progressive harmonization and unification of international trade law governed by conventions and other instruments. That is, in a case where there is a dispute in relation to the international sale of goods, there are rules and laws enacted by the said commission which tend to resolve any arising dispute between contracting states. This is made possible by passing of instruments such as conventions and models laws that govern the formation of international sale of goods.

Members/Structure Of The Commission

The Commission is composed of sixty members. The discretion to select the member states lies within the United Nations General Assembly. The membership takes the duration of a maximum of six years with the membership expiring every three years. The membership ensures representation of the world’s geographic regions and principal economic and legal systems. There are 14 member states from Africa, 14 from the Asia-Pacific region, 10 from Latin-America and the Caribbean, 8 from the Eastern Europe and 14 from Western Europe and Others.

How The Commission Functions

The commission works in 6 UN languages, namely; Arabic, Chinese, English, French, Russian and Spanish. The decisions made by the Commission are made on a consensual basis. That is, for a decision to be passed by it, there has to be consent made by the participants on the seating. The participants include member states, observer state and non- and inter-governmental organizations.

The participants have a mandate to finalize and or adopt the drafts referred to by the working groups of the commission. The working groups are divided into six with each having its own obligations. The first working group focuses on micro, small and medium sized enterprises. Secondly there is a working group whose mandate is to settle disputes. There is also an ISDS Reform working group. The fourth working group is based on electronic commerce. The fifth working group works on insolvency law and the last one on security interests respectively.

UNCITRAL On Dispute Settlement

Amongst its mandates, the UNCITRAL is established with the purpose of settling disputes that arise between states during trade. The commission adopts arbitration and conciliation as a method of its dispute resolution. This commission has enacted laws that govern international trade thus providing statutes that are referred to when disputes arise between trading states. These statutes are:

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention passed in 1958. According to the objectives stated in the Convention, the legislators recognize the growing importance of international arbitration as a means of settling international commercial disputes. This is made possible by the fact that it seeks to provide common legislative standards for the recognition of arbitration agreements and court recognition and enforcement of foreign and non-domestic arbitral awards.
UNCITRAL Arbitration Rules enacted in 1976: according to Article 1 of the rules, the rules apply where parties in a trade agreement consent to the application of such rules in a case of a dispute. The rules govern the arbitration process to be followed when there is an arbitral proceeding between parties.
UNCITRAL Conciliation Rules which has been in force since 1980: It provides a comprehensive set of procedural rules upon which parties may agree for the conduct of the arbitral proceedings arising out of their commercial relationship. They cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and the role of conciliators and the general conduct of proceedings.
UNCITRAL Model Law on International Commercial Arbitration (1958): this set of laws assist contracting states reform and modernize their laws or agreements on arbitral procedure such that they take into consideration the particular features and needs of international commercial arbitration.
UNCITRAL NOTES ON ORGANISING ARBITRAL PROCEEDINGS: this aims at assisting arbitration practitioners with the issues associated with the arbitral proceedings. The notes provide a guide for practitioners providing for amongst others; confidentiality, transparency, documentary evidence and the seat of arbitration.
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002): This is designed with the aim of helping states in reforming and modernizing their laws on mediation procedure.
RECOMMENDATIONS TO ASSIST ARBITRAL INSTITUTIONS AND OTHER INTERESTED BODIES WITH REGARD TO ARBITRATION (2012)
UNCITRAL RULES ON TRANSPARENCY IN TREATY-BASED INVESTOR STATE-ARBITRATION (2013)

Although the list of the enacted legislations to solve arising disputes between contracting parties is not exhaustive, the common aim or objectives of the instruments is to provide guidelines, laws, rules and regulations that govern such an agreement. The said parties agree that they will be governed by UNCITRAL for the instruments to apply.

The article is written by Pulane Kholoanyane from the National University of Lesotho.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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Case Number

CRIMINAL APPEAL NO.271 OF 2011

Equivalent Citation

(2011) 3 SCC 650

Bench

Altamas Kabir
Cyriac Joseph

Decided on

31 January 2011

Respondents

(R1) Manoj Bhimrao Wankhade
(R2) Ramabai, Appellant’s mother-in-law
(R3) Appellant’s sister-in-law

Relevant Act/ Section

Section 2(q) of The Protection of Women from Domestic Violence Act, 2005
Section 498-A of India Penal Code

Brief Facts and Procedural History

Although the main body of Section 2(q) expressly states that a respondent is a “adult male person,” the proviso broadens the scope of the proceedings by allowing an aggrieved wife or female in a relationship in the nature of marriage to file a complaint against a relative of her husband/male partner. This refutes the claim that the legislation was written with the intention of excluding women. The appeal was granted, with the Trial Courts directed to consider R2 and R3 as respondents in the case.

Issues before the Court

Do females fall under the definition of “respondents” in the Domestic Violence Act’s Section 2(q)?
Are females excluded from prosecution under the Domestic Violence Act?

Facts of the Case

The appellant lived with R1, R2, and R3 for over a year following her marriage in 2005, during which time her marriage was disrupted. She reported her husband to the police under section 498-A IPC For attacking her. She also filed a complaint against all three respondents. The First-Class Judicial Magistrate approved it, directing R1 to pay on a monthly basis maintenance. All respondents were also barred from evicting the appellant from her matrimonial home. Criminal appeals and applications brought before the Sessions Judge by an aggrieved R1. The appeals to the Supreme Court and the High Court were both dismissed.
R2 and R3 went before the First-Class Magistrate, but their request was denied. They filed an appeal, arguing that women cannot be named respondents in domestic violence cases. The Court agreed and overturned the order, allowing appellant to be evicted from her marriage home, which was solely owned by R2. As a result, it was not a “shared house.” The Court, on the other hand, ordered R1 to furnish separate accommodations or make additional payments for it.
The appellant’s appeal in Sessions Court was dismissed based on the determination that “females” are not included among “respondents.” The HC took a similar stance, striking R2 and R3’s names from the proceedings and ordering the appellant to evacuate the matrimonial home. As a result, this appeal has been made.

Decision of the Court

Although the main body of Section 2(q) expressly states that a respondent is a “adult male person,” the proviso broadens the scope of the proceedings by allowing an aggrieved wife or female in a relationship in the nature of marriage to file a complaint against a relative of her husband/male partner. This refutes the claim that the legislation was written with the intention of excluding women. The appeal was granted, with the Trial Courts directed to consider R2 and R3 as respondents in the case.

The case analysis has been done by Shrey Hasija.

The case analysis has been edited by Shubham Yadav, pursuing B.com LL.B.(4th Year) from Banasthali Vidyapith.

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“A market without consumers will be a night sky without the stars and moon.”

The Concept Of Consumer Protection

The consumer movement started in developed countries almost a century ago. An American businessman was once quoted saying, “God created masses of mankind to be exploited. I exploit them. I will do his will.” This, though may not be the approach of every business person, is by and large true and hence proves the need for Consumer protection. Consumer protection guidelines or consumer protection laws came up as an answer to the malignant exploitation which the consumers faced at the hands of sellers and businessmen.

Previously it was the buyer’s duty to carefully examine goods for any defects or deficiencies before buying them. This was a time when the maxim “Caveat Emptor” was followed, meaning “let the buyer be aware.” However, gradually it was noticed that since there was no way by which a consumer could know or identify any inherent defect in a product (due to reasons such as lack of knowledge), they were being taken undue advantage of by the sellers. This resulted in the consumer movement. Protests and campaigns worldwide finally resulted in the shift from “Caveat Emptor” to “Caveat Venditor,” meaning, “let the seller be aware. Thus the obligation slowly shifted from the buyers to the sellers.

Consumer Protection In India

The Government had enacted various legislations for protection of the interest of the consumers after independence including, The Prevention of Food Adulteration Act 1954, The Standard of Weights and Measures Act 1976, The Bureau of Indian Standards Act 1986, The Monopolistic Restrictive and Unfair Trade Practices Act, 1969. However, India still lacked comprehensive legislation benefiting the interests of the consumers. Consumer Protection Act, 1986 was the first step towards safeguarding the rights of consumers in India. It guaranteed some fundamental rights to the consumers, which are explained as follows:

RIGHT TO SAFETY

This right confers the consumers with the power to insist on the quality of goods before buying them. They have the right to be protected against the marketing of hazardous goods and services. Consumers must buy products marked with ISI, AGMARK.

RIGHT TO BE INFORMED

Consumers have a right to be informed about the quality, quantity, standard, potency, and price of the goods as a means of protection from unfair trade practices.

RIGHT TO CHOOSE

Access to a variety of goods and services at a competitive price also is a right of the consumers. In the case of monopolies, the consumers must be ensured of a good quality of product at a fair price and must be protected from any unfair advantages which the seller might try to take.

RIGHT TO BE HEARD

The consumers have a right to voice their grievances at consumer forums and receive due compensation for any damages incurred.

RIGHT TO SEEK REDRESSAL

The rights to a fair settlement in cases of a genuine grievance and protection against unfair trade practices or exploitation of consumers have also been guaranteed under this Act.

RIGHT TO CONSUMER EDUCATION

To successfully implement the goal of consumer protection, consumers must be made aware of their rights and ways in which they can exercise them effectively. Rural consumers need special attention in this aspect as they face the most exploitation on account of lack of awareness.

The same Act also introduced a three-tier grievance redressal mechanism. Unfortunately, people in India, less aware of their rights as well as remedies, could not utilize the provisions to their full advantage. To correct this problem, the Government has undertaken measures to educate the consumers about their rights. One such popular campaign was ‘Jago Grahak Jago’ in 2005, which aimed at creating awareness on consumer protection.

Throughout the last decade we have seen an evolution in the ways of trade. As online shopping portals became the go-to place for an increasing number of people, the Parliament realized the loophole in the present Consumer Protection Act, 1986, as it did not cover online transactions. The legislature’s objective was to leverage the power of consumer protection, which had previously been limited to products and services under the Consumer Protection Act of 1986, to include complaints and difficulties stemming from the expansion of virtual markets. The legislature, keeping in mind all the new provisions that needed to be added to keep pace with the digital age, scraped the old statute and enacted the Consumer Protection Act, 2019 which included new concepts such as e-commerce, product liability, mediation, and the establishment of a Central Consumer Protection Authority as an executive authority for settlement of all consumer grievances.

E-Commerce And Its Inclusion

Under Consumer Protection Act, 2019, e-commerce has been defined as “means buying or selling of goods or services including digital products over a digital or electronic network” Unlike the previous legislation, it includes all online transactions shielding customers of online shopping portals from getting cheated or online frauds. Liabilities such as maintaining a fair trade practice, reimbursing or compensating consumers in return for products, and correct and accurate advertising of products were placed on e-commerce entities and online sellers. Also, incorporating all e-commerce organizations under the Companies Act, 2013 was made compulsory through this Act.

The new Act has enhanced consumer rights by making e-retailers more accountable and creating a transparent redressal procedure, which has helped customers in making more informed decisions when purchasing products and services. Effective implementation of rigorous restrictions, as well as penalties and punishment, has acted as a catalyst in deterring the producers and retailers from using dishonest and exploitative practices. In addition to this, convenient grievance resolution mechanisms have encouraged more consumers to engage in online transactions and strengthened consumers’ confidence in e-retailers, finally resulting in the development of this sector and an increased flow in profits.

Product Liability Under CONSUMER PROTECTION ACT, 2019

Under Chapter VI of the Consumer Protection Act, 2019, the concept of product liability has been defined. It was not previously included in the 1986 act and is a new addition in order to make the product manufacturers, sellers, and service providers more stringently liable against any defective product sold or poor service delivered. This concept was developed based on the maxim of “Caveat Venditor” Under the following circumstances, and if any harm is suffered by a consumer, they can bring in liability action against the manufacturer or seller:

If a product contains any manufacturing defect or is defective in design
It does not conform to the express warranty
The product does not have sufficient information about the correct method of usage or any warning against any potential harm or injury that could be suffered on account of any incorrect use.
In the case of a service provider, if he was negligent in providing the service, which resulted in an injury to the consumer, or the service delivered was deficient and inadequate, he could be made liable.
A product seller can be made liable in cases where he had a substantial amount of say over designing, manufacturing, packaging, or labeling of the product that caused harm.
If a product seller altered or modified the product while selling it, then also he could be made liable.

One important point to note is that the liability of the product manufacturer is absolute under all circumstances. Even if he claims to have taken substantial care and there was no negligence on his part, he cannot escape his liability. In comparison, there are certain exceptions allowed to product sellers. In cases where at the time of the accident, the product had been altered or misused, the product seller cannot be made liable.

The Supreme Court, in a case, pointed out that in issues relating to Product Liability, the court will adjudge the matters based on the facts and the evidence presented in the court of law.

Mediation Under CONSUMER PROTECTION ACT, 2019

Alternative Dispute Resolution methods have become an increasingly popular method of settling disputes in the corporate sectors. Through the 2019 act, the Government allowed mediation to be used as a process for addressing the grievance of consumers. In the case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd, the Supreme Court ruled that all the matters related to commerce, trade, consumer dispute, or contract could be mediated. It is placed a duty on the State Government to establish mediation cells, the mediating officers of which, while moderating a case, must follow the principles of natural justice.

The guidelines to be followed in the process of mediation were laid down by the Supreme Court in the case of Bijoy Sinha Roy V Biswanath Das & Ors. According to the guidelines, if at any point while hearing the consumer disputes, the officer feels that such an issue can be effectively settled through mediation, then with the consent of both the parties, it can be referred for mediation.

Conclusion

The Consumer Protection Act, 2019, in its true sense, has made it easier for consumers to voice their dissatisfaction with products or services obtained and get remedies for the same. The inclusion of online sale services and the introduction of settlement dispute mechanisms such as mediation have made a positive impact. Also, the undertaking of campaigns to create awareness among consumers has resulted in an informed citizenry resulting in less exploitation of consumers.

The article is written by Debasmita Nandi, a first year law student of CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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Introduction

“We won’t have a society if we destroy the environment.”
Margaret Mead

The best gift that mankind possesses is not the economy, it’s the environment, the gift that mother earth gave, without repentance. Our environment is perhaps the main facet due to which survival is possible on this planet. Also, it is the only thing that makes life reasonable. Without it, we can’t endure even a single day.

India’s Biodiversity & Hotspots

India has an extraordinary abundance of biodiversity in its forests, wetlands and marine regions. It has a wide scope of natural surroundings going from tropical rainforest to snow capped vegetation and from temperate forests to coastal wetlands. India comprises fertile river fields and high plateau and a few significant waterways including the Ganges, Brahmaputra and Indus. India shows an incredible variety in environment, geography and topography henceforth exceptionally wealthy in biodiversity. The Ministry of Environment and Forest Govt. of India (2000) records 47,000 types of plants and 81000 types of animals.

This is about 7% and 6.5% individually of flora & fauna of the world. Around 5000 types of blooming plants have their origin point in India. India is observed to be the pivot of origin of 160 types of harvest plants and 320 types of wild members of cultivated yields. India has 372 mammal species (eighth most in world), 1228 types of birds (eighth in world), and 428 types of reptiles (fifth in world). India has in excess of 50,000 types of insect species including 13000 butterflies and moths.

There are 4 out of 36 biodiversity hotspots of the world situated in India — The Himalayas, the Indo-Burma region, Western Ghats, and the Sundaland. Hotspots will be regions that are very rich in species, have high endemism (species restricted to a specific region), and are under constant danger.

Concept of hotspots of biodiversity was instituted by Norman Myers in 1988. He recognized they needed regions for in situ protection. Certain regions in different parts of the world are known for their mega biodiversity of species. India contributes around 8% of worldwide biodiversity, in spite of the fact that it bears just 2.4 percent of the world’s land space. These regions are especially wealthy in floral riches and endemism, in blossoming plants as well as in reptiles, amphibians, butterflies and mammal species as well.

Classification of a Biodiversity Hotspot

To qualify as a biodiversity hotspot the region must fulfill 2 criteria:

It should have no less than 1,500 vascular plants as endemics — or, in other words, it’s anything but a high level of vegetation discovered no place else in the world. A hotspot is irreplaceable.

It should have 30% or less of its unique normal vegetation. In short, it should be threatened.

Steps taken to safeguard the Indian biodiversity & hotspots by government

The Central Government has legislated the Wildlife (Protection) Act, 1972. The Act, inter alia, imparts the formation of reserved Regions for the safeguarding of wildlife and furthermore imparts punishment for hunting of determined fauna prescribed in the Schedule I to IV thereof. Trade in rare and endangered species ought to be prohibited. National parks and sanctuaries ought to be made for the safeguard of wildlife.

Wetland (Conservation and Management) Rules, 2010 have been outlined for the safeguard of wetlands, in the States.

The Scheme of National plan for Protection of Oceanic Ecosystem additionally gives help to the States to the administration of wetlands incorporating Ramsar sites in the country. Wildlife Crime Control Bureau has been set up for control of illicit trade of wildlife, including endangered species.

Government of India is signatory to Convention on Biological Diversity (CBD). CBD was set up in 1992-93 after the Rio de Janeiro Earth Submit. (i) To preserve the biodiversity. (ii) To utilize the biodiversity and its components but in a reasonable way. (iii) Impartial dispensation of advantages of biodiversity.

Environmental courts & tribunals like National Green Tribunal were set up for the protection of environment & wildlife in India. Schemes & projects like Narmada bachao andolan, project tiger, green India mission, recovery of endangered species etc. were launched for safeguarding the biodiversity & hotspots in India.

Judicial Assistance/Pronouncements

The shortfall of an unmistakable law is moving a back-and-forth between clients of natural assets and administrative bodies. It is presently about time that the judiciary strides in to develop jurisprudence on manageable and even handed administration of biodiversity while protecting the Constitutional principles against arrest, search and seizure.

In the case of Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh, the two judge bench of J. Bhagwati & J. R. Mishra, Seat of Judges PN Bhagwati and Ranganath Mishra, presented the concept of “Sustainable Development”. An NGO named RLEK filed a case against limestone quarrying in the valley in 1987. It was expressed that the lasting resources of humankind are not to be depleted in one age. The natural resources ought to be utilized with imperative consideration and care so ecology and climate may not be influenced in a critical manner.

In case of, Indian Council for Enviro-Legal Action vs. Union of IndiaJ. Reddy held that the monetary expenses of forestalling or curing harm brought about by contamination should lie with the endeavors which cause the contamination by embracing the “Polluter Pays Principle”. The Court put forth a limit for the seaside states to formulate coastal administration designs and restrict industrial or construction within 500 meters of the Elevated Tide Line.

In the case of, Animal Welfare Board of India vs. A. Nagaraj and Ors., the Supreme Court banned Jallikattu & other animal races & fights, alluded that even these carried in the name of culture & tradition but these are illicit acts that the humans perform. Referring to Section 3 & 11 The Court declared these acts illegal & imposed fines under the Prevention of Cruelty to Animals Act, 1960.

TN Godavarman Thirumulpad vs. Union of India and Ors., Supreme Court held & set up a Compensatory Afforestation Funds Management and Planning Authority (CAMPA), to survey the afforestation endeavors, to direct the remuneration who endured because of deforestation, and to speed up exercises for safeguarding of forests.

In the Tarun Bharat Sangh vs. Union of India and Ors., Supreme Court passed the verdict that restricted/banned the mining activities that were taking place in the Sariska Wildlife Sanctuary & proved to be a great source for the protection of Sanctuaries from the mining activities.

Conclusion

As we progressively become clued-up of how significant biodiversity depletion has become, we are gradually making laws and treaties to safeguard these resources. This duty of protection needs the involvement of stakeholders and consumers. Essentially distinguishing species in danger cannot initiate protection. Individuals are to be taught in such a manner. They should preserve biodiversity.

The article is written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th year) from Bnasthali Vidyapith.

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Introduction

Section 148 of the Indian Contract Act, 1872 defines the term Bailment, that upon a contract when one person delivers goods to another for some purpose and when the motive is achieved. That bail was either returned or else disposed of according to the directions discussed earlier in the contract of the person delivering them. Thus the Law of Bailment involves the transfer of possession from one person to another. The title of ownership did not get affected in this case.” bailor” is the one who delivers the goods. And “bailee” is another person to whom goods are delivered.

Essential Elements of the Law of Bailment

Delivery of possession.
Delivery of Goods upon contract.
Delivery of Goods for purpose.

How Bailed goods delivered to the bailee

Section 149 of the Indian Contract Act states that when the bailee made delivery by doing anything which has the effect of putting the possession of the goods of any person authorized to hold them on his behalf. Then, bailment happens between the parties.

Delivery of possession is of two types.

Actual delivery- when goods possession is delivered from the bailor to bailee, then actual delivery happens.
Constructive delivery- physical transfer of goods does not happen here. Goods are remaining with bailor only, but something decided which has the effect of putting them in possession of bailee.

Duty of Bailor

Duty of bailor to disclose faults in goods bailed- Section 150 of contract act, binds the bailor to reveal all the defects of goods bailed which he knows. And if he is not doing so, he will be responsible for damage arising from such faults directly to the bailee.

Duty of Bailee

Duty of reasonable care

Section 151 of the act binds the bailee to take as much care of the goods bailed to him as a prudent man takes care of his goods.
Section 152 states that if the bailee has taken due care, he is not responsible for loss, deterioration, or destruction of goods bailed.

Duty not to make unauthorized use

Section 154 of the provides that the bailee is liable to compensation if he makes any use of the goods bailed that is not according to the conditions of the bailment.

Duty not to mix goods

Section 155 of the act states that if the bailee mixes the bailor’s goods with his goods but with the bailor’s consent, the bailor and bailee shall share an interest in proportion to the mixture produced.
Section 156 states that if the bailee mixes the bailor’s goods with his goods which is separable. Without the bailee’s consent, then the bailee is bound to give the expense of separation and any damage arising from the mixture.
Section 157 holds the bailee liable to pay compensation for the loss of the goods by mixing the bailor’s goods to his goods which cannot be separated and mixed without the bailor’s consent.

Duty to return goods bailed

Section 160 of the act provides bailee duty to return or deliver goods bailed according to the direction of bailor as soon as the time expired for bailment, or the purpose has been accomplished for goods bailed.
Section 161 states that on account of faults of Bailee the goods are not delivered at the proper time, then it is Bailee’s responsibility for any loss or destruction of the goods from that time.

Rights of Bailee

Right of lien – it gives the right to the bailee to retain goods or property until some charges due upon it or services rendered for its improvement to be paid by the bailor.

Two types of lien in bailment-

Particular lien
General lien

Right to sue the wrongdoer

Section 180 of the Act confers the right of the bailee to sue wrongdoers.

Landmark Judgments

Hutton v Car Maintenance Co. – In this case, the plaintiff company maintained the defendant’s car. The defendant does not pay some dues. Then the plaintiff’s company took the car into its possession and claimed a lien for expenses. The court rejected the claim.
Ram Ghulam v Government of Uttar Pradesh – In this case, police recovered some stolen ornaments from the plaintiff. But in the police station, they were again stolen. Plaintiff sued the government for the loss. The court dismissed the case.
Ultzen v Nicolas – In this case, a waiter took the overcoat of the plaintiff and hung it on behind the chairs. After having dinner, the plaintiff found that his overcoat was missing. He sued the owner for the loss of the coat. The owner was held liable.
Shaw &Co.v Simmons & Sons- In this case, the plaintiff consigned books to the defendant, a bookbinder. But the defendant failed to deliver them within a reasonable time. The defendant was held liable for the loss of the books.
Installment Supply (P) Ltd v Union of India – In this case, the court held that the Hire-purchase contract is not merely a bailment. But it has two aspects, bailment and an element of the sale.
Ashby v Tolhurst – In this case, the court held that the main essence of bailment is the transfer of possession of goods.
Jan and Son v A. Cameron – In this case, the plaintiff stayed at the hotel, his article stolen by someone. The court held the Hotelier liable.
Morvi Mercantile Bank Ltd v Union of India – In this case, the court held that Railway receipt delivery would amount to delivery of goods.

Conclusion

The position of bailment in India is clear from section 153 of the Contract Act. The law of bailment specifies the rights, duties, and liabilities of the bailee to avoid disputes between the bailor and the bailee. It forms a very vital part of the Indian Contract Act. Bailment is something people enter daily, even without realizing it. Its development with time has been crucial. Therefore, the laws should be dynamic but should also be rigid at the same time.

The article is written by Megha Patel, a 2^nd –year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.

The article is edited by Shubham Yadav, pursuing B.com LL.B. from Banasthali Vidyapith.

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CASE NUMBER

4 P.C. 419.

EQUIVALENT CITATION

(1872) L.R. 4 P.C. 4.

BENCH

Sir Montague E. Smith.

DECIDED ON

27^th July, 1872.

Brief Facts And Procedural History

In this case, W. N. Watson & Co. borrowed some amount of money from Raja Pratap Chandra Singh, but the company failed to return the money back to Raja. So, the company signed a mortgage deed and an agreement with Raja, according to which the company gave the power of control over business to Raja Pratap Chandra Singh and the right to take benefit from the company’s profit until the due amount is paid. Thereafter, the W. N. Watson Co. entered into a contract with Mollwo, March Company (Plaintiff). The W. N. Watson Co. failed to fulfill the contract with the Mollwo, March & Co. As a result, the Mollwo, March & Co. filed a suit against Raja and W. N. Watson Co. as they thought that Raja is a partner in W. N. Watson Co. as he was taking his share in the profits.

Issues Before The Court

The main issue was whether Raja Pratap Chandra Singh can be considered as a partner or not, as he is sharing the profits of the business?

Ratio Of The Case

In this case, the court said that Mollwo, March Company cannot sue Raja as the real intention of the contract between Raja and W. N. Watson Company was not to become partners but to pay the due amount that the company was unable to pay.

Decision Of The Court

In this case, the court held that Raja cannot be considered as a ‘Partner’ (referring to the guidelines given in Cox v. Hickman case), as the contract which was made between Raja and W. N. Watson Company was not a partnership but the company wanted to pay the debt and hence they gave power and rights to Raja on their business. Therefore, the relation between W. N. Watson Company and Raja is of a debtor and creditor and so that is why, the Mollwo, March Company cannot sue Raja.

The case analysis has been done by Priyanka Choudhary, currently pursuing BA LLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The case analysis has been edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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Introduction

Plea bargaining refers to negotiating an agreement between the prosecution and the accused, according to which the accused would plead guilty for a lesser punishment, or dismissal of other charges, in case there are multiple charges. This is supported by few people because it reduces the burden of the judiciary, by getting a confession from the accused. There are also a few criticisms regarding plea bargaining. The concept of plea bargaining is very common in the United States. There were always provisions in the Criminal Procedural Code for an accused to plead guilty, but not for plea bargaining. The concept of plea bargaining was made as a law, when the Criminal Procedural Code was amended by the Criminal Law (Amendment) Act, 2005, to include these.

Types Of Plea Bargaining:

There are three types of plea bargaining, which are discussed as follow:

Sentence bargaining: – in this type of bargaining, the defendant tries to get a lesser sentence for pleading guilty. It reduces the need to go into trial and gets over quickly when compared to a full trial.
Charge bargaining: – in this type of bargaining, the defendant agrees to plead guilty for a lesser charge, for dismissing a greater charge. It is the most common plea bargaining in criminal cases and it is also known as a plea.
Fact bargaining: – in this type of bargaining, the defendant agrees to certain facts, to prevent other facts from being introduced as a piece of evidence. This is usually not considered in a court, because it is considered to be against the rules of the criminal justice system.

Plea Bargaining In The US:

The concept of plea bargaining is used very commonly in the US, with nearly 90% of the criminal cases preferring plea bargaining instead of jury trials. But in the early times, plea bargaining was considered to be unethical and even sometimes illegal, because sometimes the plea bargaining might not be voluntary, or even a wrongly accused person could accept plea bargaining for a reduced sentence. In 1967, a report by the President’s Commission on Law Enforcement and Administration of Justice explained how widespread plea bargaining is and recommended it to be recognized.

The evolution of plea bargaining in the US can be seen in the following cases, to understand how they became an established and protected procedure. In 1969, in the case of Boykin v. Alabama, the US Supreme Court quashed the conviction of a man, who pleaded guilty to five counts of robbery and received five death sentences. This was because the trial judge did not ensure that the man pleaded guilty voluntarily. At present, the judges ensure that the plea bargaining was done voluntarily by questioning the accused in court. Following this, the US Supreme Court said that it is justifiable to award the accused who pleaded guilty with reduced penalties in the case Brady v. The United States and also said that the accused could also plead guilty even when they feel like they are factually innocent in the case North Carolina v. Alford. In addition, the Supreme Court in the case of Santobello v. New York, ruled that if the prosecutors break any of the conditions of the plea bargaining, then the accused is entitled to be provided with a proper legal remedy. The court also went ahead to say that plea bargaining is not just an essential part of a proceeding but is also highly desirable. Furthermore, the Supreme Court in the case of Bordenkircher v. Hayes held that the prosecutors may threaten the accused to bring additional charges against him, if he refuses to plea bargain, but those charges should be valid.

Plea Bargaining In India:

Like mentioned earlier, the concept of plea bargaining was introduced in the Criminal Procedural Code by The Criminal Law (Amendment) Act, 2005, which introduced chapter, XXIA, in the code, and came into force on July 5, 2006. As per this amendment, plea bargaining will be allowed for cases in which the maximum punishment is imprisonment for seven years; offenses that do not affect the socio-economic condition of the country and also do not include offenses committed against women and children below 14 years of age. Even before this amendment. The Supreme Court looked into the concept of plea bargaining in a few cases like, The State of U.P. v. Chandrika and Kripal Singh v. State of Haryana, in which the court said that neither the Trial Court nor the High Court has the power to overwrite the minimum penalties prescribed by law on the basis of plea bargaining. The Sakharam Bandekar case, in 2007, became the first case in India, where the accused requested plea bargaining for confessing to his crimes. The CBI opposed this by saying that the claims against the defendant were very serious corruption charges. The court took the views of the CBI and rejected the defendant’s plea and convicted him.

The Delhi High Court in the case of Pardeep Gupta v. Statedirected the Trial court to look into the provisions of Chapter XXIA of Criminal Procedure Code, reconsider the plea bargaining application of the accused, and said that it should be considered seriously. The Supreme Court has asked the States to consider plea bargaining to reduce a large number of pending cases before the court. Before the 2005 criminal amendment, the courts did not consider the concept of plea bargaining very positively, even after the amendment, only a very few times the court has looked into plea bargaining as a serious issue. The courts should really consider this as a measure to finish the trial quickly and reduce the pendency of cases before the court.

Criticisms Of Plea Bargaining:

The concept of plea bargaining has a few advantages like the case could be disposed of quickly, and that it is a hassle-free method, but it also has a few criticisms, which would be discussed now. For starters, plea bargaining should be made voluntarily, an accused cannot make a plea bargaining because of coercion, or because of any misrepresentation. If the court doubts that it was made involuntarily, then the court has additional work to check if it was made voluntarily or not. Furthermore, many feel that plea bargaining lets the offenders not get the punishment that they deserve. Finally, few people believe that the innocent accused sometimes agree to plea bargain as they feel like they are stuck and don’t know what to do.

Conclusion:

The concept of plea bargaining is not completely new in India, the courts have from time to time looked into this in certain cases, but most of it did not have a positive impact on it. But, along with time, the need for plea bargaining in India, was felt. But even when a change was brought, by the Legislature in 2005, it was not properly used by the people and the judiciary, too, did not work a lot for its proper implementation. Everything has a positive negative side; it is not right to judge plea bargaining based on its disadvantages alone and the concept of plea bargaining in India is only evolving and it will be improved only with proper and continuous usage. The US is one of the countries which use plea bargaining regularly. The Indian legal system is not yet ready to adopt plea bargaining like the US. But after a few years, India can try to implement it like that. The main reason for the implementation of plea bargaining in India is that India has more than half of the inmates who are under trial and a large number of pending cases before courts.

The article is written by Santhiya V., pursuing BBA LLB (Hons.) at Alliance University.

The article is edited by Shubham Yadav, pursuing B.com LL.B.(4th Year) from Banasthali Vidyapith.

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Introduction to the topic: –

The Supreme Court, also sometimes referred to as the apex court, is the highest Judicial body of India. The motto of the Supreme court of India is ‘where there is Dharma there will be victory’. It is the guardian of the Indian constitution and the rights conferred to the citizens by the Indian constitution. It protects and guards the constitution and keeps a check on compliance of laws with the constitution framed by the Indian parliament to be within the ambit of guidelines provided under the constitution. In Kesavananda Bharati v. the State of Kerala the supreme court laid down the basic structure of the Indian constitution which cannot be compromised or amended in any condition and any law doing so will be unconstitutional.

Technicalities of last deciding justice authority: –

The Supreme Court is the court of last resort. It is the final pedestal of justice however the convict in criminal cases who is granted capital punishment by the supreme court can file a mercy petition to the president of India for pardon or reduce the intensity of punishment to life imprisonment subject to provisions provided under Article 72 of the Indian constitution. The president must make decisions based on the recommendations of the central government. There are many instances where after the supreme court’s decision a mercy plea is filed to the president of India on behalf of a convict, Like in the case of Md. Ajmal Amir Kasab v. the State of Maharashtra (2012) and in Mukesh and Anr State for NCT of Delhi and Ors (2017).

Technically the admission rate of granting mercy is low and usually, the petitions are dismissed by the president so it can be said that the supreme court is the final deciding authority.

Apart from this, many other features make the supreme court the last authority on deciding and doing justice. The Supreme Court is the last court of hearing and no other place the case can be heard thereon. Under the president, only a mercy petition is filed but no hearing of the case takes place; the president acts on the aid and advice of the cabinet. Few mercy petitions are allowed, it is further filtered and very few are granted. As far as the legality of an act goes, the supreme court is the last deciding body on legality, and a mercy petition is a mere consideration of mercy for an act committed.

The Supreme court’s decisions are binding on all the lower courts within its jurisdiction i.e., the territory of India which hints towards its supreme judicial authority exercised by the supreme court. And for these very reasons the supreme court employs seasoned, most experienced judges and the system of the constitutional bench. One can always file for review or curative petition if there is any violation or ignorance on the part of the Supreme court.

Why is the Supreme Court the final pedestal of Justice?

The Supreme Court exercises all applicable laws and remedies present under the law in the country to bring justice to the aggrieved party. And in absence of law or precedent on matters, it applies principles of natural justice to bring justice.

It is committed to bringing justice with utmost fairness between the parties. Judicial decisions are to be measured by their consequences then careful attention needs to be given to the process of accessing and estimating those consequences. There are relatively fewer chances of biases in the decisions given by the judges of the supreme court as they do not decide cases on their own bias and justify it, instead, they decide about the law whether an act is right or wrong.

The Supreme court is chosen as a last resort because a case must be settled at some point in time and should not be disturbed once settled, this is also the basis of precedents (previously decided cases) and stare decisis (stand by the given decision). In Reynolds v. the United States wherein the United States, Supreme court established the principle that while legislative fiat may not control private opinions and believes it may, nonetheless, control actions “in violation of social duties or subversive of good order” further control facilitated by the supreme court.

The Supreme Court being the final pedestal of justice decides justice in the first place and then works on the execution of justice. Which would serve justice among the parties not opposed to public policy. The court doesn’t serve justice based just on the facts put up by parties in front of it but also looks into possible impact decisions might create or what possible impact it will have in the society to maintain the status quo.

Ability to serve justice: –

Justice is subjective, what may be just for one may be destructive for others. An equilibrium cannot be reached to attain justice and beyond that courts also have to decide the impact it will have on the society considering this justice is served and wrong is established.

Civil justice is different from social justice. Aristotle’s commutative justice involves the enforcement of property claims recognized by law. Social justice involves transfers of property interests, through regulation or taxation, utilizing law operating posterior to the formation of property. The one can be converted into other by bending logic and constitutional authority done by Supreme courts.

The theory of redressive justice governs the enforcement of rights by a wronged party against the party which committed the wrong. This is formed based on corrective justice theory by John Gardner which states the type of justice concerning norms of allocating back.

The concept of justice by the Supreme Court can be summarized as granting fair trials leading to justice under the law.

The article is written by Aakarsh Chandranahu, from Alliance School of Law.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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