Tag: #UnionofIndia

Legal Take on Gender Stereotypes in Indian Society

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S.noContents
1.Introduction
2.The deep-rooted gender stereotypes and their legal consequences
3.Landmark Cases
4.Legal and Media Reactions to Gender Stereotyping. 
5.Legal Interventions
6.Workplace Gender Bias: Legal Options and the Situation Today
7.Conclusion

Introduction: Examining Gender Stereotypes in Indian Society

Deeply embedded in all communities, gender stereotypes frequently uphold social norms that specify anticipated behaviours, roles, and characteristics depending on a person’s perceived gender. In India, a nation rich in variety and cultural tradition, gender stereotypes have long affected the lives and opportunities of millions of individuals. This article examines the negative effects gender stereotypes have on Indian society as well as the initiatives taken to combat them.

The historical records and cultural perspectives have perpetuated gender stereotypes for a long time. As a result, they promote unequal power dynamics and prejudiced attitudes. These prejudices frequently limit the potential of people and uphold gender norms that favour one gender over the other. Such practices not only contravene the equality values stated in the Indian Constitution, but they also inhibit the development of a society that is inclusive.

This article emphasises the importance of the legal system in changing cultural beliefs by highlighting important court decisions that have contested pervasive gender stereotypes1. It also looks at the legal measures put in place to control such representations as well as how media portrayals continue to reinforce these stereotypes2. The article also addresses initiatives in workplaces where gender discrimination still exists as well as in educational institutions, where the foundations of these biases frequently take hold3.

Dismantling deeply embedded gender stereotypes calls for a multifaceted strategy as we navigate the complex web of legal frameworks, societal dynamics, and cultural perspectives. This article seeks to add to the ongoing discussion about changing the legal system to promote a more equal and impartial society for all people, regardless of gender, by examining legal changes, significant cases, and current difficulties.

The deep-rooted gender stereotypes and their legal consequences

Deep-seated gender stereotypes still have a significant impact on legal issues and inequalities in society, casting a wide shadow over social institutions. These stereotypes frequently take the form of presumptions about traditional gender roles and talents, which has an impact on people’s access to opportunities, care, and resources. Therefore, these skewed viewpoints go against the equality values stated in the Indian Constitution and impede the development of a just and inclusive society.

The historic case National Legal Services Authority v. Union of India (2014)4 emphasised the need for laws to recognise and defend the rights of transgender people while also highlighting how difficult it is to combat gender stereotypes in the context of the law. Additionally, the 2013 passage of the Gender Sensitization and Sexual Harassment of Women in the Workplace Act5 emphasised the legal commitment to fostering impartial and safe workplaces. Legal changes that reframe societal standards are necessary to combat these preconceptions, creating an environment where the law can be a powerful weapon for eliminating ingrained gender biases.

Legal Conflicts Against Gender Stereotyping: Landmark Cases.

In the continuous battle against deeply embedded gender stereotypes in Indian society, landmark judicial decisions have become significant battlegrounds. These instances not only show the discriminatory effects of such preconceptions but also demonstrate how the judicial system has the ability to question and change social norms.

National Legal Services Authority v. Union of India (2014)6 is a landmark case that recognised the rights of transgender people and the need to combat stereotyping. A landmark framework to combat workplace sexual harassment was established by the Supreme Court’s involvement in Vishakha v. State of Rajasthan (1997)7, which recognised the need for safe and impartial workplaces free from gender-based discrimination. These examples show how the judiciary has actively interfered to combat the persistence of gender biases, defying conventional wisdom.

Society confronts the damaging effects of gender stereotypes by delving into these incidents. These court cases raise people’s awareness and promote discussions that advance society. They show that eradicating long-held preconceptions necessitates both society’s joint efforts and the judicial system’s authoritative position.

Legal and Media Reactions to Gender Stereotyping. 

The media has a significant impact on how society perceives things, but it also frequently reinforces negative gender stereotypes that impede the advancement of gender equality. This influence has a double-edged effect, reflecting and strengthening existing prejudices. To buck this trend, however, legal responses are starting to emerge.

The National Legal Services Authority v. Union of India (2014)8 case brought attention to the media’s influence on public opinion and the need for regulation to stop the spread of damaging stereotypes. In order to meet the need to confront gender biases rather than perpetuate them, the legislative framework places a strong emphasis on the need for responsible media portrayal. By controlling media content, society makes progress towards eradicating entrenched stereotypes and promoting gender equality.

These legal actions serve as a reminder of the media’s significant influence on society’s views as well as its capacity to accentuate good change. Not only must media representations be changed, but legal measures that will assure their implementation must also be acknowledged in order to effectively combat gender stereotypes.

Legal Interventions: How Educational Institutions Can Drive Change

While educational institutions are important for breaking down gender stereotypes, they can also unintentionally reinforce prejudice. Legal actions are crucial in converting these settings into places that support inclusion and gender equality. Legal actions to combat gender stereotypes and promote diversity have been taken against educational institutions, which play a significant role in forming cultural attitudes. Anuj Garg v. Hotel Association of India9 is one of these important cases in which the Supreme Court emphasised that educational institutions must uphold gender equality and ensure a setting free from prejudice and stereotypes. This case supports the requirement for institutions to stop discriminatory behaviour.

The Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013, also broadens its application to educational institutions and requires a proactive strategy to combat gender-based discrimination. The value of education in influencing society’s perceptions and achieving equality is reaffirmed by these legal actions.

Workplace Gender Bias: Legal Options and the Situation Today

Strong legal remedies that change with the times are needed to address workplace gender bias. By focusing on equal compensation for equal work, a significant case—Air India v. Nergesh Meerza, (1981)10—expressed the judiciary’s position against gender discrimination. The precedent set by this decision served as the foundation for later legal systems.

A key piece of legislation that demands harassment-free workplaces and provides remedies for preventing it is the Gender Sensitization and Sexual Harassment of Women in the Workplace Act, 2013, which was passed in 2013. In terms of recognising and eradicating gender stereotypes in the workplace, this 2013 law is a positive step.

M.C. Mehta v. Union of India, (2004)11, another significant case, demonstrates the judiciary’s dedication to eradicating gender-based discrimination. Even though it wasn’t specifically about the workplace, this decision demonstrated the Supreme Court’s commitment to environmental justice and gender equality, showing how the two legal fields interact and affect gender bias.

Despite these legislative developments, the labour environment today is nevertheless complicated. There are still gender pay gaps, a shortage of women in senior positions, and covert biases. Legal remedies have set the stage, but ongoing efforts from groups, people, and governments are necessary to create a truly equal working environment.

Conclusion: Using the law to eliminate gender stereotypes.

In conclusion, India’s legal system has greatly changed to address the deeply ingrained gender stereotypes that support inequality and prejudice. Through significant decisions like National Legal Services Authority v. Union of India (2014) and Vishakha v. State of Rajasthan (1997), the judiciary has emphasised its responsibility to combat these prejudices and promote a more equal society.

The legislative instruments created to redefine educational institutions as hubs of inclusivity and gender sensitivity are best illustrated by legislation like the Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013, and the Anuj Garg v. Hotel Association of India (2008) case. The Sexual Harassment of Women at Workplace Act, 2013, and the Air India v. Nergesh Meerza (1981) case further highlights the struggle against workplace discrimination.

These legal avenues, linked to developing societal knowledge, highlight how crucial it is to destroy gender stereotypes. A more just and inclusive future is made possible by the Indian judicial system’s dedication to maintaining constitutional ideals and advancing equality.

As we proceed on this road, it becomes increasingly obvious how important it is for institutions, society, and legal systems to work together continuously. India is moving closer to a future in which gender stereotypes are a thing of the past by persistently questioning conventions and pushing for change.

Endnotes:

  1. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
  2. Vishakha v. State of Rajasthan, (1997) 6 SCC 241.
  3. Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013.
  4. Ibid
  5. Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013.
  6. Ibid
  7. Vishakha v. State of Rajasthan, (1997) 6 SCC 241.
  8. Ibid
  9. Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
  10. Air India v. Nergesh Meerza, (1981) 4 SCC 335.
  11. M.C. Mehta v. Union of India, (2004) 12 SCC 118.

This article is authored by Srishti Singh, a pass-out student at O P Jindal Global University, Sonipat

Laws Ensuring Cybersecurity in India

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INTRODUCTION

Computers seem to have made our life easier as they could be used for several purposes like education, payment of various bills, source of entertainment, and access to surplus information of the global world among many others. What we often ignore is the threat it poses to whoever has access to it in the advanced form of crime known as ‘Cyber Crime’. Cybercrime is all about the use of a computer where either a computer is used to commit a crime or a crime has been committed by targeting a computer. In order to prevent such computer crimes, we now need a computer-based law called ‘Cyber Law’. Cyber laws protect computer networks against other computer networks by laying down rules, regulations, and guidelines regarding Cybercrimes.

CYBERCRIME

Cybercrime is an illegal invasion of information stored by an individual, corporations, and governments. Such invasion may not take place physically; the offender and victim may never be in contact with each other but what they invade is a personal and corporate digital body. The world’s first cybercrime was conducted in the year 1834 French Telegraph System when thieves hacked into the system of the French telegraph and succeeded in stealing financial market information. Since then, many cyber-crimes have been committed like Morris Code Worm, Malicious Code, Phishing, DNS Attack, BotNets, Bitcoin Wallet, and Android hack. Governments of many countries have started working together to stop such crimes.

TYPES OF CYBERCRIME

A. AGAINST INDIVIDUALS

a. Email Spoofing: The message appears to have been received from somewhere other than the actual source.

b. Spamming: Same message sent to millions of addresses in the hope to receive a response.

c. Cyber Defamation: Publishing of false information on cyberspace to harm the reputation of the person concerned.

d. Phishing: Stealing information by identifying himself/herself as the individual whose identity is stolen.

B. AGAINST PROPERTY

a. Software piracy: Copying of software illegally

b. Copyright infringement: Using any text, picture, music, or book that is under someone else right. 

C. AGAINST ORGANISATION

a. DOS Attack: The offender floods the server with numerous traffic so that the files cannot be accessed by the rightful owner.

b. Email Bombing: Infinite number of emails is sent to an email address to flood the service to which the email address belongs.  

D. AGAINST SOCIETY

a. Forgery: Where false currency, signatures and documents are produced.

b. Web Jacking: Fake websites are created to access the information of another.  

WHY CYBER CRIME?

  1. EASY ACCESS: Lack of security and complex technology about which cybercriminals are well aware leads to breaches of data and much important information.
  2. LESS USAGE OF MEMORY: Computers are prone to store a large amount of data in small spaces making it easier to be accessed by cybercriminals.
  3. COMPLEXITY:  Programmes run under, millions of codes to which a layman is unaware and cybercriminals take advantage of this.
  4. IGNORANCE: Human beings unaware of the computer world tend to ignore many factors related to the security of data which may lead to an illegal invasion of an uninvited guest.
  5. DESTRUCTION OF EVIDENCE: Cyber criminals are used to committing the same crime over the year again and again which leads to efficiency in their way of data leads us that there through evidence of them breaking in the first place.

CYBERLAW

Cyber Law plays an important role to control crimes committed through computer networking and concerns all aspects involving technology have cyber laws about it.

In India, cyber laws origin can be traced in—

Information Technology Act 2000

Act based on United Nations Model Law on Electronic Commerce 1996.

The act gives:

  1. E-Mail is valid and legal for communication.
  2. Digital signatures are given legal status.
  3. Digital certificates to new companies.
  4. Government can issue e notices.
  5. Communication between companies and the government can be done through an online network.
  6. Addressing grievances of the general public through an online portal.
  7. Ensuring security to digital data.

Shreya Singhal v. Union of India1 legal status of Section 66A of IT Act, 2002 was challenged before the honourable Supreme Court. In the instant case, two women were arrested after posting objectionable comments due to the complete shutdown of Mumbai on the death of a political leader, in retorting they question the constitutionality of Section 66A of the said act. Whereas, the court held that Section 66A is legally valid as the statement given by an individual may be annoying even if not affecting reputation, and does not violate article 14 of the Indian constitution as there is intelligible differentia between speech by cyberspace and other forms of speech.

Avnish Bajaj v. State (NCT) of Delhi2 in this case CEO of the website Bazee.com was arrested on the ground of broadcasting cyber pornography but was soon released as he was supposed to be nowhere involved in the said offence and shreds of evidence which were collected are directed towards some others who used the service of the website for sharing the cyber pornography.

INDIAN PENAL CODE, 1860

In India the Penalties of some offences are also mentioned in other acts depending upon the damage it may cause to the victim therefore offences like obscene material or sexually exploiting of children transferred electronically through the system of networks, acts of voyeurism, stalking, cheating, theft through electronic devices are all punishable offences under IPC.

State of Tamil Nadu v. Suhas Katti3 the accused in the instant case was a friend of the victim and was eager to marry her but the victim declined and got married [i]to someone else and later got divorced. Therefore, the accused coaxed the victim once again only to get rejected. Then accused made a fake account of Id on email by the victim’s name and posted obscene and defamatory information about the victim resulting in his arrest. Later, was charged with 2 years of rigorous imprisonment and a year of simple imprisonment along with a fine.

CBI v. Arif Azim4 through this case India got its very first cybercrime conviction someone named Barbara Campa logged into a website through which someone from a foreign country can purchase products to be delivered in India. The purchase of a Sony Colour TV with the wireless telephone was made under the same Id. Later, The credit card agency claims that the owner of the card through which payment was done had not done any purchase. CBI investigated the case and found that Arif Azim to whom the delivery was made worked at a call centre somehow got the details of Barbara Campa whose card was used for purchase. Arif Azim being a youth and first-time offender was released on probation for a year.

COMPANIES ACT 2013

The act specifies the technical requirements for a company and gives the government the power to punish anyone who doesn’t complement the technical requirements. Over time the effectiveness of these laws is advancing, giving guidelines for companies and their management to abide by.

IMPORTANCE OF CYBER LAW

Cyber laws are very important in the era of computers and advanced technology. It helps small-scale industries work effectively so that their productivity doesn’t get harmed, and allows the company to surf the internet without any barrier. Data recorded would be preserved and due to penalties, the capable intruder may not do so.

Presently, the Central government has no plan to form any organisation to deal with such matters but the government did make laws that are efficient enough. The government presented the National Cyber Security Council 2013 with the ministry of IT and Electronics aiming at the prevention of cyber threats, minimizing the damage done by cybercrime, and protecting the structure and data of computers. Ministry of home affairs passed a scheme aiming to prevent cyber crimes against children and women.

India is at 23rd rank out of 183 countries on the Global Cybersecurity Index of the UN. Further, the government aims at making it in the top ten of the list in the coming year.

CYBERSECURITY IN INDIA

Cybersecurity is the protection of the systems of networks by a firm or an individual for the sake of the protection of data in their system. Cybersecurity of one must be strong enough to fight against the illegal invasion by someone with the intention of misusing the data. With the advancement in technology, there are numerous ways in which one can invade your personal space due to these systems of the network must be protected effectively and efficiently.

To handle the problem of cybercrime—

  • Using strong passwords.
  • Protect your data with enough strong encryption.
  • Protection of your personal information.
  • Keep your systems updated.
  • Usage of antivirus programs.

CONCLUSION

Nowadays, cybercriminals are harmful to both developed and developing countries, therefore they should work together to fight against cybercrime. Budapest Convention is the only multilateral treaty signed internationally in 2001 by various countries which came into existence in 2004. It provides guidelines to countries for the creation of a system that fights against cybercrime. In 2017, a Russian Resolution was put before United Nations that aims at sharing data among countries to prevent cybercrime. India states that sharing data with foreign countries goes against the National sovereignty of India and Budapest convention was drafted without the presence of India therefore it stands neutral.

Citations:

  1. AIR 2015 SC 1523
  2. 2008 DRJ 721: (2008) 150 DRT 769
  3. C No. 4680 of 2004
  4. 2013

This article is written by Simran Gulia, a BA LLB student from Maharaja Agrasen Institute of Management.

CRIMINALISATION OF POLITICS IN INDIA: A CRITIC

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INTRODUCTION

India is one of the largest democracies in the world and in this country we follow the concept of the universal adult franchise which means a person above 18 years of age has a right to vote irrespective of their caste, colour, creed, religion, or gender. We elect our representative by giving a vote but what if we have to choose our representative among the persons with severe criminal records. In India, nowadays criminalization of politics becomes very common which means a person participating in an election is having a criminal record. This is the biggest irony out here where the ‘lawbreakers become the lawmakers’. This disrupts the roots of democracy where it is difficult to become even a peon with criminal records. On the other hand, people become ministers and represent the country with criminal records.

The number of politicians with criminal records is increasing day by day, which is a serious concern for the public. The data was provided by the Association of Democratic reform [ADR] reports in which it was stated that the elected Lok Sabha candidates in the year 2019 out of the 43% had criminal charges against them which is a nearly 26% increase concerning the elections of 2014.

The report by the ADR in collaboration with the national eye watch in which it was published that in the year 2009, 543 members were elected for Lok Sabha elections out of which 162 (30%) of them had criminal charges and 76 i.e 14% had severe criminal charges against them like murder, rape, kidnapping, etc. Also, in the 2014 Lok Sabha elections, 539 candidates were elected out of which 233 (43%) had criminal charges against them and 159 i.e 29% had serious criminal charges against them.

LAWS IN INDIA AGAINST THE CRIMINALISATION OF POLITICS

Some articles in our Indian constitution are against the criminalization of politics and those articles are

  • ARTICLE 327
    Article 327 of the Indian constitution gives the right to the parliament to make provisions on the subject matter related to elections for either house of the parliament or for the legislature of a state.1
  • ARTICLE 102
    Article 102 of the Indian constitution deals with the disqualification of members from the elections of either house of the parliament on certain grounds which are mentioned under this article.2
  • ARTICLE 191
    Article 191 of the Indian constitution also deals with the disqualification of members from the election but from the legislative assembly or legislative council of the state if they fall under the category mentioned under the article.3

EFFECTS OF CRIMINALISATION OF POLITICS

  • AGAINST THE FREE AND FAIR ELECTIONS PRINCIPLE
    The candidates often use their muscle and money power which means they have the ability to finance their own elections and largely due to public image they try to gain votes. This demeans the principle of free and fair election as it limits the choice of electing a deserving candidate.
  • AFFECTING GOOD GOVERNANCE
    The main issue is that lawbreakers become lawmakers, which undermines the democratic process’ ability to offer decent government. The structure of India’s state institutions and the quality of its elected representatives are reflected in these undesirable democratic tendencies.
  • AFFECTING UPRIGHTNESS AMONG PUBLIC SERVANTS
    Corruption caused during elections due to the circulation of money during and after elections causes disruption in the working of public servants and thus, results in increasing corruption.
  • CAUSES SOCIAL DISHARMONY
    Electing representatives who have a criminal record creates a bad precedent for the youth and also causes social disharmony and violence in society. This demeans the meaning of democracy in the eyes of the general public.

REASONS FOR CRIMINALISATION OF POLITICS

  • LACK OF POLITICAL WILL
    Political parties don’t show any will or interest in curbing the criminalization of politics. Until now, efforts made towards this issue were made by the supreme court and the election commission of India. However, parliament must revise the Representation of the People (RPA) Act 19514, which governs the disqualification of candidates who have been charged with serious crimes and have been found guilty in court.
  • LACK OF ENFORCEMENT
    Making strict laws and regulations or passing judgment will not affect much until and unless implemented properly.
  • NARROW SELF INTEREST
    Sometimes general public may focus on caste or religion criteria for casting vote and they may not be interested in checking the history or criminal record of the candidate. So, publishing criminal reports of the candidates is not enough to curb the criminalization of politics.
  • USE OF MUSCLE AND MONEY POWER
    Candidates gain votes due to their muscle power and money power, despite having serious criminal records they use their identity and finance their election to gain votes. Furthermore, when all contesting candidates have criminal backgrounds, voters are sometimes left with no options.

CASE LAWS

UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.
The association for democratic reforms filed a petition in the Delhi high court for the recommendations on how to make elections fairer, and transparent. The law commission produced some recommendations which are that the candidates should disclose their criminal history, educational qualifications, financial details, and other personal information on their websites. After this, the union of India challenged the petition in the supreme court of India that the high court voters did not have a right to such information. The court held that the right to know is a derived right from the right to freedom of expression and speech. Because such rights include the right to have opinions and collect information in order to be appropriately educated in formulating and distributing those opinions throughout the election process, the public has a right to know about candidates running for election. The Court elaborated on this argument by stating that a good democracy strives for an “aware citizenry,” and that any kind of misinformation or lack of information will result in a “uniformed citizenry,” rendering democracy a charade.5

PEOPLE’S UNION OF CIVIL LIBERTIES [PUCL] V. UNION OF INDIA
The people’s union of civil liberties [PUCL] challenged the validity of section 338 of the representation of people’s act, 1951 which says that a candidate is not allowed to disclose any personal information. The PUCL contended that it was a violation of Article 19(1)(a). the apex court held that the candidates should provide information about themselves to the voters. The basic information provided by the candidates can affect the decision of the voters. Furthermore, freedom of expression encompasses not just verbal and written communication but also voting. The expression of opinion through the final act of casting a ballot is part of the fundamental right of freedom of speech and expression under Article 19(1), even though the right to vote is not a fundamental right in and of itself. The apex court concluded that section 33B of the representation of people act, 1951 was unconstitutional.6

LILY THOMAS VS UNION OF INDIA
In this case, a writ petition was filed by the Lily Thomas and an advocate Satya Narain Shukla before the apex court for the purpose of challenging section 8(4) of the Representation of the people’s act which safeguards the convicted politicians from any kind of election disqualification based on pending appeals against their conviction in the appellate court. This petition was not allowed for 9 years and later, in July 2013 the supreme court finally passed a verdict in which it was held that the MP and MLA whether they are elected or not elected would be disqualified if they have criminal allegations against them by the trial court and the saving clause under section 8(4) will not be applicable.7

PUBLIC INTEREST FOUNDATION V. UNION OF INDIA
In this case, in the year 2011, the petition was filed by the BJP leader Ashwini Upadhyay and the NGO public interest foundation before the apex court to seek directions regarding the criminalization of politics and debarring them to contesting elections. The issue was whether the court can put any restriction on membership of parliament beyond article 102(a) to (d) and parliament’s legislation under Article 102(e). the court held that the debarring candidate to contest the election solely on the basis that they have a criminal record is wrong. The court directed them to fill out the form circulated by the election commission and the form must contain all the information. The candidate has to notify the party regarding criminal proceedings if he or she has against them while buying a ticket of a specific party. The political party has to update their website and to put regarding any criminal proceedings are pending against them and also make them publish in the newspapers and also to make huge publicity on electronic media.8

RECENT DECISION

The supreme court of India passed a judgment related to the criminalization of politics recently in February 2020 in which it was held that the political party has to update their websites regarding criminal history against the candidates and such information has to be published in even local and national newspaper. In October 2020, Bihar was the first election that followed the supreme court guidelines. This was done to preserve the purity of elections in the country and to provide voters with a fair choice to choose.

CONCLUSION

Till today what has been done regarding curbing the criminalization of politics has been done by the supreme court and the election commission. The parliament has to show some interest to make changes in the representation of people’s acts. The alone judiciary will not be enough effective in dealing with this issue.

In conclusion, the information regarding criminal history, financial authority, and educational qualifications of the candidates should be made available to the voters. So, that they can make the right choice and the elections conducted could be fair and transparent and the voters were given fair choice to choose candidates from them. Though information should be provided to the voters and it is important also but there should be a thin line between information provided to the voters and the rights of the candidates.

References:

  1. The Indian constitution, 1950, art.327
  2. The Indian constitution, 1950, art. 102
  3. The Indian constitution, 1950, art. 191
  4. The Representation of people act, 1951.
  5. Union of India v. Association for democratic reforms and anr, (2002) 5 SCC 294.
  6. People’s union of civil liberties V. Union of India, [WP (C) NO. 196/2001]
  7. Lily Thomas v. Union of India, [WP (C) NO. 231/2005]
  8. Public interest foundation V. Union of India, [WP (C) NO. 536 OF 2011]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

LEGAL FRAMEWORK ON HUMAN TRAFFICKING

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INTRODUCTION

Human trafficking is the type of modern-day slavery in which a person is sold or used forcefully for the point of labor or commercial sex act. This is all that happens to intend to earn money. Human trafficking is not just a heinous crime against society but is a sin for our society. It has no boundaries for anyone irrespective of sex, gender, caste, or race anyone can be a victim of human trafficking but the most vulnerable ones are women and children. Children being innocent and getting easily influenced by others became victims of sexual acts. Due to the overpopulation and lack of job opportunities, many women from poor families are forced to get indulged in this profession and in some cases, a close family member becomes the hoes and sells them for such work.

According to the survey of the United Nations Office for drugs and crime [UNODC], it was found that the victim of human trafficking were 51% women, 28% children, and 21% men. Majorly women were abused by sexual violence which is 51%, 28% for children, and 21% for men. There are 43% of victims who are domestically within the national borders have been trafficked, it is shocking to know that the traffickers are not only men but it also constitutes 37% of women and 63% of men.

Some articles in the constitution are related to human trafficking.

ARTICLE 23
Article 23 talks about the prohibition of human trafficking and forced labor. Forced labor means less than minimum wage is paid. Any trafficking in human beings and beggars is prohibited and punishable in accordance with the law. In this article, the state is not prevented from commanding compulsory services for public purposes. The state shall not discriminate based on sex, color, caste, race, or any other. This article not only protects the state but also private citizens.1

ARTICLE 21
Article 21 is a fundamental right under part 3 of the Indian constitution, which talks about the right to life and personal liberties. It is one of the most essential articles in the Indian constitution. The supreme court of India mentioned it as the ‘heart of fundamental rights ‘. It states that no person shall be deprived of life and liberty except as per the procedure established by law. Everyone is entitled to live with full dignity by birth.2

ARTICLE 51 A [E]
Article 51 A [e] is a fundamental duty to promote Peace, Harmony, and a sense of unity amongst the people of India cut across linguistic, religious, and regional basis, to repudiate practices that can be insulting to women.3

LAWS RELATED TO HUMAN TRAFFICKING

INDIAN PENAL CODE, 1860

  • SECTION 366A
    If any person induces any minor to go with him to any other place with the intention of seducing her or doing illicit activities he or she will be punishable with the imprisonment of 10 years or fine or both.4
  • SECTION 366B
    Whoever imports a girl from any other country under the age twenty one with the intent to force or seduce her for intercourse with another person then, a person can be liable for imprisonment of 10 years and a fine can also be imposed.5
  • SECTION 374
    This section deals with unlawfully forcing someone to labor against their will or desire. Such a person can be punished with imprisonment which can be extended to 1 year or fine or both.6
  • SECTION 370
    Whomever imports, exports, removes, buys, sells, or disposes of any person as a slave, or accepts, receives, or detains any person as a slave against his will, will be punished by imprisonment of either kind for a duration up to seven years, as well as a fine.7

THE IMMORAL TRAFFIC [PREVENTION] ACT, 1956

This act was passed by the parliament of India in 1956 and the main objective or purpose of this act is to prevent commercial sex or immoral traffic among women and girls. This act covers the entire country. This act defines a brothel as a “house or any portion of the house, room or any portion of any room, conveyance or portion of any conveyance, and place or portion of any place.” And prostitution is “the sexual exploitation or abuse of persons for commercial purposes or consideration in money or any other kind.” In this act, if any person runs a brothel or aid in such activities then he or she will be punishable with imprisonment for one year which can be extended to 3 years, and a fine of rupees 2000 can also be imposed. If any tenant knowing allows them to use the property for such use then he or she can be imprisoned for two years and a fine of rupees 2000 can also be imposed on them.

THE ANTI TRAFFICKING BILL, 2021

This bill focuses on the prevention of human trafficking, providing rehabilitation cure compensation to the victims, and providing stringent punishments for the traffickers. The early bill of 2018 was never introduced in the Lok Sabha. The 2021 bill is different from the previous bill as it also extends outside India. In this bill, the national investigation agency will also be set up. This will also include transgenders along with women and children in the definition of a victim. The central government will also set up a national anti-trafficking committee and many committees will be set up at state and district levels for the better implementation of rules and regulations.

CASE LAWS

PEOPLE’S UNION FOR DEMOCRATIC RIGHTS VS UNION OF INDIA
In this case, the people’s union of democratic rights filed a writ petition before the supreme court of India under Article 32 of the Indian constitution for the violation of fundamental rights and certain rights for laborers.8 People union of democratic rights is an organization set up to make a report on the exploitation of living conditions of laborers under contractors. In this case, the court defined forced labor under article 23, forced labor basically means employing labor and providing them wages which is less than the minimum wage rate. In this case, the court held that forced labor is a violation of the fundamental right of article 23 and the person can file a writ petition under Article 32 for the violation of their fundamental rights.9

LAXMI KANT PANDEY VS UNION OF INDIA
In this case, a writ petition was filed by Laxmi Kant Pandey regarding the malpractices in adopting children from foreign parents. This case brings to highlight the need for having rules and regulations regarding intercountry adoptions. The children go to another country and get neglected by their adopted parents, making a toxic and unhealthy environment for the children and resulting in sexual exploitation. To proving protection to the intercountry adopted children a comprehensive framework was formed. In this it was decided that the international adoptions would follow the regulations of the guardians and wards act, 1860 and the provisions of articles 15[3], 24, and 39 along with the united nations declaration on the rights of the child. It was made mandatory for foreigners to be sponsored by the licensed agencies of their country.10

GAURAV JAIN VS UNION OF INDIA
In this case, the public interest litigation was filed before the supreme court by the advocate to set up a distinct education system for the children of prostitutes and get them educated so that they didn’t have to live undesirable and the life full of misery. The court held that having separate schools for the children of prostitutes will isolate them and will be against the well-being of the children and society in general. The supreme court set up a committee consisting of advocates and social workers to look into the matter and find solutions. The court held that the prostitutes are not offenders but they are the victim of unfavorable socio-economic conditions and to set up juvenile homes for the rehabilitation and the safety of children.11

CONCLUSION

There are many provisions related to human trafficking which are both domestically and globally recognized but still, there are numerous cases of human trafficking in our country. Human trafficking violated fundamental rights and constitutional rights and human rights of the people just for the sake of earning monetary benefits. Women and children are the victims of human trafficking people take advantage of the innocent behavior of the children and get them involved in sexual exploitation. In a country where there are fewer jobs for more people applying they are left unemployed and for the need for money women are forced to take up prostitution. Making laws and provisions is not enough this is an issue of great concern and it is needed to be seen from a socio-economic perspective also. The government should provide them with jobs so that they can live with dignity and comfort. Awareness related to human trafficking should be spread in schools among students. High-quality education should be promoted in government schools and colleges. This is a grave crime and needed to be lookup at in creating a safe and healthy environment for children and women to live in.

References:

  1. The Indian constitution, 1950, art.23
  2. The Indian constitution,1950, Art 21
  3. Indian constitution, 1950,Art 51A[E]
  4. Indian Penal Code, 1860, section 366 A
  5. Indian penal code, 1860, Section 366B
  6. Indian penal code, 1860 section 374
  7. Indian penal code, 1860 section 370
  8. Indian constitution,1950,Art.32
  9. People union of democratic rights vs union of India, [1982 AIR 1473]
  10. Laxmi Kant Pandey vs Union of India, [[1984 AIR 469]
  11. Gaurav Jain vs Union of India, [{1997} 8 SCC 114]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

INDIAN FEDERALISM: ISSUES AND CHALLENGES

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INTRODUCTION

The word ‘federalism’ is derived from the Latin word ‘foedus’ which means ‘covenant or treaty. Federalism refers to the distribution of powers between the state and the central government. Three lists are provided by the seventh schedule of our Indian constitution and the three lists are union lists, state lists, and the concurrent list. The central government deals with the issues mentioned under the union list such as defense, trade and commerce, citizenship, insurance, banking, highways, railways, higher education, navigation and shipping, and many more. The state government deals with the issue given under the state lists such as agriculture, pilgrimages within India, prisons, state court fees, public health and sanitation, and the last list is a concurrent list which consists of issues on which both the central government and the state government can exercise jurisdiction such as contempt of court, evidence, protection of wild animals and bird, labor welfare, stamp duties, food, administration of justice, etc. if there is a conflict between the central government and the state government then, the decision of the central government will supersede the decision of the state government.

PRINCIPLES OF FEDERALISM

SEPARATION OF POWERS
The power is divided into three branches: legislative, executive, and judiciary. These three organs of the government are independent of each other. These branches are well-known examples of the tripartite system in the united states. The main purpose of this separation of power is to prevent the concentration of power and autocracy.

CHECKS AND BALANCES
Checks and balances are important to prevent the concentration of power and violation of the separation of power. It is required for the proper functioning of the three organs of the government. Some of the examples of checks and balances are judicial review, basic doctrine structure of the Indian constitution, etc.

KEY FEATURES OF THE FEDERALISM UNDER THE INDIAN CONSTITUTION

DIVISION OF POWER
Division of power is the essential feature of federalism so that the power is not concentrated in the hands of the central government. In this, the power flows from the central government to the state government and the local government i.e panchayat.

SUPREMACY OF THE INDIAN CONSTITUTION
Supremacy of the Indian constitution means that the powers of the executive, judiciary, and the legislative are mentioned in the Indian constitution and they are bound by the constitution hence, no one is above the constitution. This feature gives strength to the basic structure doctrine of the Indian constitution which was given by the Keshvananda Bharti vs the State of Kerala1.

WRITTEN CONSTITUTION
A written constitution is necessary to constitute a country as a federal nation. As it is difficult to distribute the powers orally among the center and the state government. Written constitution helps to maintain the supremacy of the Indian constitution and provides clarity.

RIGID CONSTITUTION
It is important to have rigidity in the constitution to maintain the supremacy of the constitution.

JUDICIARY
There can be a dispute between the center and the state and the judiciary provides the proper mechanism to solve the dispute between them and the decision of the judiciary is binding upon all of them.

  • ARTICLE 131
    According to this article, the supreme court has original jurisdiction to hear the disputes between the center and the state, two or more states, etc.2
  • ARTICLE 262
    This article focuses on the issue of water and valley disputes between states. This parliament Is allowed to make laws on the distribution of water or control of river valleys and can even bar the supreme court to hear disputes related to water or valley disputes.3
  • ARTICLE 263
    Article 263 is based on the issue of the “establishment of the inter-state council”. In this article, the president can ask to establish a council on the charge of interest of the public or to resolve disputes between them. The duty of these councils is to advise and inquire the states if a dispute arises between them, make a recommendation for the better functioning of the policy, and discuss the subjects which are common to both the state and the union.4

BICAMERAL LEGISLATION
Like Canada, India has also bicameral legislation. India also has two houses upper house [Rajya Sabha] and the Lower house [Lok Sabha] and a bill have to be passed by both the houses of the parliament. In India even states also have bicameral legislation such states are Karnataka, Maharashtra, Uttar Pradesh, Bihar, Telangana, and Andhra Pradesh. They have an upper house [Vidhan sabha] and a lower house [Vidhan Parsihad].

QUASI FEDERALISM

Quasi federalism means a form of government that has features of both the federal government and the unitary government. For example India and Canada. But the major control and authority lie with the central government. India is a quasi-federal country in which the states have the power to make laws under list 2 of the seventh schedule of the Indian constitution and the central government has jurisdiction on the matters mentioned in the first list of the seventh schedule of the Indian constitution. The state government and the central government both have the powers to make laws on the matter listed under the third list of the seventh schedule of the Indian constitution. If the dispute arises between the center and the state then the opinion of the central government will prevail.

In India, emergencies can be imposed under articles 352, 356, and 360 of the Indian constitution. During an emergency center government retains all the power and the state government has no autonomy during an emergency. This way federalism loses its luster.

ISSUES AND CHALLENGES FACED BY THE INDIAN FEDERALISM

REGIONALISM
As center focuses more on bigger states than the smaller states and states work according to the democratic system. Then, the conflict can arise between them and they demand to be separated from the union.

ABSENCE OF FISCAL FREEDOM
Fiscal freedom basically means the distribution of financial and tax-related power between the center and the state government. It is necessary for the development of the nation. Though the main power lies in the hands of the center and also they have a finance commission whose work is to decide the state’s share in the center’s revenue.

OFFICE OF THE GOVERNOR
Governor is the head of the state and is appointed by the president of India under Article 155 of the Indian constitution. The decision of the president can overrule the decision of the governors appointed by the president.

INTEGRATED SERVICES
India has integrated services of the judiciary, audits, elections, and many more. The judiciary system of India consists of the supreme, the high court at the state level, and district courts. Supreme courts decisions are bound on the high court and the high court doesn’t have jurisdiction to entertain cases related to disputes between the states. The process of election is the same at both the center and the state level. At the center, it is conducted by the election commission and at the state level it is conducted by the chief electoral officer [CEO] but they are under the supervision of the election commission.

DIFFERENT RELIGION
India is a diverse country and has people who belong to many religions but India is a secular state and the word secular was added in the preamble under the 42nd amendment act which means India will not have any religion or will not promote any religion. This can lead to a conflict between the two religions and then makes federalism weak.

CASE LAWS

MANEKA GANDHI VS UNION OF INDIA
In the year 1978, the verdict passed under this law is that any law made by the legislature is considered to be ultra vires if it violates or infringes any of the fundamental rights. The fundamental rights can only be changed by the constitution, hence this is a check on both the executive branch and the parliament and the state legislatures. During times of emergency article 19 of the Indian constitution is taken away as during the times of emergency our country follows a unitary government. Therefore India is a quasi-federal country.5

STATE OF WEST BENGAL VS UNION OF INDIA
The exercise of sovereign rights by Indian states was the central issue in this case. The Parliament’s legislative competence to implement a statute requiring the Union to acquire land and other properties vested in or owned by the state, as well as the sovereign authority of states as separate entities, were also investigated. The Supreme Court of India ruled that the Indian Constitution did not contain an absolute federalism provision.6

Article 13 of the Indian Constitution will therefore become a non-issue, and it may be overlooked because even regular legislation will be exempt from judicial examination because they were passed on the strength of a constitutional amendment that is not subject to challenge.7

CONCLUSION

Federalism is the distribution of power from the central government to the state government and the local government. The main objective of this is to prevent autocracy. India is quasi federalism country which means it has the features of federalism but the main authority lies with the central government. No doubt there is a lack of balance between the center and the state government.

References:

  1. Kesavananada Bharti vs state of Kerala, [1973 SC 1461]
  2. Constitution of India, 1950 Art 131
  3. Constitution of India, 1950 Art 262
  4. Constitution of India, 1950, Art 263
  5. Maneka Gandhi Vs Union of India, [AIR 567, 1978 SCR[2] 621]
  6. State of West Bengal vs union of India, [AIR 1987 Cal 226]
  7. Constitution of India, 1950 Art 13

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

Regulation of IBC Laws in India

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INTRODUCTION

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

INSOLVENCY & BANKRUPTCY CODE, 2013

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

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

FUNCTIONS & PROVISIONS OF IBC, 2016

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

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

RELATION OF NCLT WITH IBC

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

PROCESS OF INSOLVENCY RESOLUTION

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

CASE LAWS – IBC

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

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

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

CONCLUDING OBSERVATIONS

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

References:

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

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