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The Code on Wages, 2019

The parliament on 8th August 2019 passed the Code of Wages bill 2019. Unlike the previous act, this Code will also apply to the unorganized sector of labour which constitutes 90% of the labour force. This bill is the first of four bills to be introduced in the Lok Sabha which are related to the welfare of the labour force.

The subject of labour falls in the concurrent list hence it falls in the jurisdiction of both the central and the state government. This bill aims to universalize the provisions of minimum wages and timely payment of wages for all employees in the country irrespective of their profession.

The Code of Wages, 2019

The bill is called a ‘code’ because it consolidates and replaces four previous acts and subsumes into a single code and will determine various issues related to the wages of employees. The bill was first introduced in the Lok Sabha in 2017 but lapsed at the end due to the dissolution of the 16th Lok Sabha and was reintroduced in 2019.

The four laws that the code replaced are the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Payment of Bonus Act, 1965, and the Equal Remuneration Act, 1976. These laws had become obsolete and were not serving its purpose hence the Code of Wages was introduced instead to introduce laws related to wages, bonus, minimum wage amount etc.

The code will be applicable all over the country. It contains 9 chapters and 69 sections.

A few features of the bill are:

  • New Definitions: Since it is integrating different legislations under one umbrella, it has widened the scope of terms like employer and employee. Forthwith it will include employees of both the organized and unorganized sector.

The term “employee” now includes persons hired to do any kind of work skilled, unskilled manual, operational, managerial, technical or clerical. It also includes government employees but has excluded apprentices and members of the armed forces.

The words “worker” and “employee” have a different meaning as per this act. Workers also include working journalists and sales promotion employees

The term “establishment” has been defined as ‘any place where any industry, trade, business, manufacture or occupation is carried on.’ It also includes government establishments.

Most importantly the term wages have been defined to include “all remuneration whether by way of salaries, allowances or otherwise” via money or other forms of payment with respect to his work. It comprises three types of pay i.e. basic pay, dearness allowance and retaining allowance. Previous labour laws included a total of 12 different definitions for wages thus integrating and forming one precise definition will reduce unnecessary litigation expenses and confusion.

Chapter 1 has also included a list of provisions such as housing accommodation, contributions by the employer to the employee’s retirement fee, bonus payable under law, overtime compensation, sum pay to cover any special work expenses etc. that will not be included in the definition of wages.

Discrimination due to gender: For the first time the code also addressed the issue of gender discrimination. Section 3 prohibits discrimination amongst employees with respect to wages, recruitment for the same work or work of similar nature and in the conditions of employment except for cases where women are prohibited from working by-law under any law for the time being in force.

  • Minimum wages: The International Labour Organization defines minimum wage as “the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by collective agreement or an individual contract”.

Chapter 2 seeks to universalize minimum wages for all employees irrespective of their profession or the wage ceiling. A concept called floor wage has been introduced by the bill. The central government will fix a floor rate of wages for different regions. This will be with respect to the geographical area and minimum living standards of the workers, and a national minimum wage will be prescribed accordingly.

 The union government will set minimum wages for certain employees like train and mines and delegates the state government to set minimum wages for all other employments for their respective regions and this wage rate cannot be lesser than floor wage.

The bill asks the appropriate government to fix minimum wage per the employee’s skills and the place of employment but the wage cannot be lesser than the national minimum wage.

 Although, if the minimum wage was already higher than the newly prescribed minimum wages, then the previous provision will retain, i.e. the government cannot reduce the minimum wages. These wages will also be revised/ reviewed every five years by the appropriate government. In case an employee works overtime he will be paid by the hour and his overtime charges should not be less than twice the normal wage rate. India is a founding member of the International Labour Organization (ILO) and this provision attempts to adhere to its minimum wage policy.

  • Payment of wages: The employer may set wages on a daily, weekly, quarterly or monthly basis. Wage period cannot exceed a month. The employer has to stick to one method and have to comply with the deadlines provided in Section 17 for each of the scenarios. For monthly wages, the settlement period has been reduced to the 7th day of the next month instead of the 10th day.

Wages can be paid by various methods such as cash, cheque, depositing in the bank account of the employee or by electronic mode. This provision is a welcome inclusion as the previous Payment of wages act was very vague and insufficient in this area as in this era of gig economy majority labourers are not paid on a monthly basis

The threshold period for applying for minimum wages, bonus and other forms of compensations has also increased to 3 years. Also, the restriction as per the Payment of Wages Act, Notification No. S.O. 2806 (E) which allowed only employees who were paid less than 24000 per month to file applications has also been seemingly removed. Hence Chapter 3 of the code, payment of wages is applicable to all types of employees.

 In case the employee is removed, dismissed, retrenched, resigns or becomes unemployed due to closure of an establishment, the wages are required to be paid within two working days. The earlier Act did not provide for any specific timelines for resignation cases.

Thus, through this Chapter, the code wants to ensure that employers are more responsible and more efficient with their payments.

Wages may be deducted only on specific grounds such as fines, absence from duty, recovering advances previously given by the employer etc. but this cannot exceed 50% of his total wage.

  • Payment of bonus: Payment of bonus: Chapter 4 of the code is applicable to all establishments who had a minimum of 20 workers employed on any day of the accounting year and they will have to adhere to it in subsequent years even if the number of employees reduces.

Section 26 mentions who is eligible for a bonus as per this act.

All employees who have worked a minimum of 30 working days and their monthly salary does not exceed a specific amount per month will be entitled to an annual bonus. This should be at least 8.33% of his wages or Rs 100 whichever one is higher and can exceed a maximum of 20% of his annual wages. The employer also has to share a part of his gross profits to his employees in proportion to the employees’ annual wages.

However, employees who have been dismissed on sexual harassment charges will not be eligible for receiving a bonus.

  • Other provisions: The bill also provides for an appellate authority for speedier dispute resolution. The central and state governments will form central and state advisory boards respectively constituting employers’ employees and a few independent persons. This should address the various issues faced by the sector. Various penalties have also increased in light of the rampant malpractices in the industry. Punishments will be for a maximum of 3 months Rs. 10000 depending on the nature of the offence

Conclusion

The act provides a lot of benefits for around 50 crore workers in the country and increases legal protection from 40% to 100% of the workforce the minimum wage provisions would ensure their Right to Sustenance and also help in the growth of the economy by increasing purchasing power. By covering all employees in the payment of wages section would help resolve a lot of conflict regarding the terms and conditions of payments. Lastly, merging the previous bills into one code will help resolve a lot of confusion regarding interpretations of various terms.

Frequently Asked Questions

Who will determine the minimum wage for employees?

The centre will release a national minimum wage which will act as a floor. States will have to determine the minimum wages of their respective regions after considering various factors. However, it cannot be lesser than the national minimum wage.

What are the provisions for overtime?

An employee will be paid hourly for overtime and the pay will be at least double of the normal wage.

What is the time limit for paying wages?

Wages can be paid daily, weekly, quarterly or monthly. The period cannot exceed a month. There are specific time limits for each type.

  • Daily workers have to be paid at the end of the shift.
  • Weekly on the last working day
  • Fortnight workers have to be paid before the end of the second day after the end of the fortnight;
  • For Monthly it has to be the seventh day of the next month

Who is entitled to the bonus provisions mentioned in Chapter 4?

Section 26 mentions who is eligible for the bonus as per this act

All employees who have worked a minimum of 30 working days and their monthly salary does not exceed Rs. 21000 per month are eligible. This should be at least 8.33% of his wages or Rs 100 whichever one is higher

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje

 

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Jammu and Kashmir Reorganisation Act, 2019

From 31st Oct 2019, This Act came into force with full effect along with a new reconstruction of the state J&K divided into two Union Territories

(1) Jammu and Kashmir and

(2) Ladakh.

Where UT J&K is permitted to have a Legislative Assembly but Ladakh.

Again, Ladakh is granted to have Kargil, Leh and the remaining territories are handed over to the Union Territories J&K.

This Bill comprises 103 Clauses, by amendment of some relevant central or state laws (i.e106 central and 7 state laws) also by repealing 153 state laws and Governor’s Acts.

From the appointed day, the Governor of the existing state of J&K shall be appointed as the Lieutenant Governor for both the UTs till the tenure is determined by the President of India.

History

Since 1947 post Independence there has been a dispute regarding a part of the Indian Administered State J&K a Larger Region between India, Pakistan and China to acquire.

By Forming this Act, 2019 it is made to reconstitute the region into Two Union Territories.

One of them is now UT J&K and the other one is UT Ladakh. This Bill was introduced by the Home Minister Shri Amit Shah in the Rajya Sabha on 6th Aug 2019 and it received the assent of the President on 09 Aug 2019.

What the Bill provides and what are the changes made in it?

There are several changes have been made in the existing Indian Constitution Act and various sections are taken into the Bill to make the Act more strengthened and effective.

The Act mainly focuses upon the following Sections such as:-

a. Legislative Assembly and the House of People

  • Construction and Abolishment
  • Conditions of electing members
  • Power and Duties of L.A

b. Chief Minister

c. Lieutenant Governor

d. Selection Commission

e. High Court

Legislative Assembly

Section 2 (g) defines the Legislative Assembly as an assembly established for the Union Territory of Jammu & Kashmir.

From the appointed day there shall be allocated 5 seats to the House of People out of which 4 will be for J&K and 1 for Ladakh. According to section 11 Delimitation of Parliamentary Constituencies Order 1976has been amended for J&K and the conduct of election to the house of people by the election commission shall be done as per the specification amended in the 1976 order under this Act according to section 11.

As per section 14(4) of this Act, 24 seats shall remain vacant in the house of the Legislative Assembly and shall not be considered as the total membership of the assembly until the areas of the UT of J&K under the occupation of Pakistan ceases to be so occupied. And subsection (7) of 14 prescribes about the seats to be reserved for the SC and ST in the house of People, which will be decided upon the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes and Scheduled Tribes in the Union territory of Jammu and Kashmir, in respect of which seats are so reserved, bears to the total population of the Union territory of Jammu and Kashmir.

  • The Lieutenant Governor of the successor U.T J&K can elect 2 members to the L.A to represent the women in the Assembly.
  • Tenure of this House is 5 years unless dissolved earlier. In case of Emergency declared it shall run for 1 year and it cannot exceed for more than 6 months.
  • The meeting of the Legislative Assembly is summoned by the Lieutenant Governor.
  • The House chooses its Speaker and Deputy Speaker on its own and lays down the condition to cease the office for them respectively.

Any decision taken in the Legislative Assembly is based upon the majority of votes of the members present and voting but not of the speaker, the vote of the Speaker is required only when a case of an equality of votes arises.

Section 30 says, there shall be freedom of speech in the House of Legislative Assembly, and no person shall be liable for everything said or vote given by him in respect of the publication by or under the authority of such assembly.

Section 36, explains when a Bill or amendment cannot be introduced in the Assembly without the recommendation of Lieutenant Governor as under when a Bill is on the stage of

  • Imposition, abolition, remission, alteration or regulation of any tax.
  • The amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of the Union territory.
  • The appropriation of money out of the Consolidated Fund of the Union territory.
  • The declaration of any expenditure to be expenditure charged on the Consolidated Fund of the Union territory or the increase of the amount of any such expenditure.
  • The receipt of money on account of the Consolidated Fund of the Union territory or the public account of the Union territory or the custody or issue of such money or the audit of the account of the Union territory.

Lieutenant Governor 

“Lieutenant Governor” means the Administrator of the Union territory appointed by the President under article 239 of the Indian Constitution. On and from the appointed day, the Governor of the existing State of Jammu and Kashmir shall be the Lieutenant Governor for the Union territory of Jammu and Kashmir and of Ladakh for such period as may be determined by the President. And the Lieutenant Governor has the power to Prorogue and Dissolve the House when he thinks fit. The Legislative Assembly can be summoned by the Lieutenant Governor especially also by addressing the causes of summoning.

Section 53 Says,

The Lieutenant Governor shall, in the exercise of his functions, act in his discretion in a matter:

(i) Which falls outside the purview of the powers conferred on the Legislative Assembly; or

(ii) In which he is required by or under any law to act in his discretion or to exercise any judicial functions.

(iii) Related to All India Services and Anti-Corruption Bureau.

Section 55 provides,

The Lieutenant Governor shall make rules on the advice of the Council of Ministers—

(i) for the allocation of business to the Ministers, and

(ii) for the more convenient transaction of business with the Ministers including the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.

Again Section 58 explains the provisions for the UT Ladakh, as under

  • Under Article 239 a Lieutenant Governor shall be appointed in the said UT will be administered by the President until when he thinks fit.
  • The President may make regulations for the peace, progress and good government of the Union territory of Ladakh under article 240 of the Constitution of India.
  • The Lieutenant Governor shall be assisted by the advisor(s) to be appointed by the Central Government.

Chief Minister (Section 54 & 56)

In this Act, 2019 Section 54 and 56 explains the appointment of Chief Minister and other ministers of the council to the Legislative Assembly in the UT J&K as under.

The CM is appointed by the Lieutenant Governor of the UT and the other ministers are also appointed by the L.G but on the advice of C.M. The council of ministers collectively responsible to the Legislative Assembly as they hold the office during the pleasure of the Lieutenant Governor. Before entering into the office the Lieutenant Governor administers every minister oaths of office and of secrecy according to the Fourth schedule again who remains absent for six consecutive months shall cease to be a member or minister of Legislative Assembly at the expiration of that period. The salaries and allowance are set to be determined by the Legislative Assembly and until the Legislative Assembly so determines, shall be determined by the Lieutenant Governor.

Selection Commission (Section 60 & 61)

“Election Commission” means the Election Commission appointed by the President under article 324 of the Constitution of India.

Section 60 describes the power and duties the Selection commission renders as under,

It can increase the number of seats from 107 to 114 and delimitation of the constituencies can also be done by the Selection Commission in the manner provided below-

  • The seats to be reserved for SC and ST in the Legislative Assembly.
  • The adjustment of boundaries and description of the extent of the parliamentary constituencies in each Union territory that may be necessary or expedient.
  • For the assembly constituencies of the UTs in case divided the commission can change the number of seats reserved for SC and ST accordingly with regard to the following provisions, such as –
  • All the constituencies shall be single-member constituencies.
  • All the constituencies shall be geographically compact.
  • Constituencies in which seats are reserved for the Scheduled Castes and the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total population is the largest.

Further, it says the Selection Commission to assist itself in the performance of its function selects 4 members from Legislative Assembly and 4 Members from House of the People of the U.T J&K as prescribed by the Central Govt. of India but none of them is allowed to sign or vote any decision of the Election Commission.

Section 61 says, that the Election Commission, may by notification 

  • Correct any printing mistakes in any order made under section 60 or any error arising therein from inadvertent slip or omission; and
  • Also, it can amend in case of any changes required to be made of any name or boundaries of any territory when it feels necessary or expedient.

High Court (Section75 to 78)

The High Court of the existed state J&K shall be the common HC for both the Union Territories J&K and Ladakh. So are the Judges of it shall be the Judges of the Common High Court. And the allowances & Salaries of the Judges determined on the basis of population ratio of both the territories as these expenditures are allocated to the same.

Conclusion

After the amendment of the first schedule in the Indian Constitution, there are several changes brought into abolishment as well as amendment such as,-

  • Entry 15 is deleted from the first schedule.
  • Another point inserted under the heading “The Union Territories” entries regarding the new formation of the UTs J&K and Ladakh.

According to section 79, the Lieutenant Governor shall appoint a person who is qualified to be appointed as a judge of HC to be an Advocate-General for the Union territory of Jammu and Kashmir.

Frequently Asked Questions

1. Which Criminal Code is applicable in J&K Pre and Post Reorganisation Act, 2019?

Before the Reorganisation Act due to the Article 370, the Criminal Code applicable in Jammu and Kashmir was Ranbir Penal Code, which later changed when the bill passed to scrap the provisions of Article 370 of the Indian Constitution and imposed all the Central Acts including IPC and Cr.Pc under section 96 in the UTs.

2. Along with Article 370 is there any other Article of the Indian Constitution Act that has been scrapped with respect for J&K?

Article 35-A of the Indian Constitution has also been removed by the ruling Party along with Article 370. Article 35-A used to prescribe in the constitution of India ‘who are the permanent residents of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarship, and public aid.

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje

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Vizag Tragedy: Did we learn anything from Bhopal Gas Leak?

This Essay is submitted by –

  • Anushka Ukrani; Law graduate, Campus Law Centre, Delhi University.

On 7th May at around 2:30 am, the gas leak incident took place at LG Polymers plant at Gopalapatnam near Visakhapatnam, Tamil Nadu. The incident bears a stark resemblance to the Bhopal gas leak of 1984 and forces us to look back. Thus, this article attempts to do two things- first, analyze the Bhopal gas leak case in detail and secondly, compare it with the actions so far taken by authorities in the Vizag case.

Bhopal Gas Leak

On the night of 2nd December 1984, 3787 people died and 574366 were injured in Bhopal due to the spillage of Methyl Isocyanate (MIC) from Union Carbide India Ltd’s (UCIL’s) pesticide factory. Since it was the first such industrial disaster in India, there was a lack of a framework to deal with such a crisis. Soon after the incident, Bhopal Gas Leak Act, 1986 was passed which empowered the government to represent the victims in legal proceedings and make settlement on their behalf. This act was enacted based on the doctrine of necessity to ensure that all the victims got proper representation. But it violated the principles of natural justice, in the sense that the lower courts had held the company, the state government and the central government responsible for the tragic accident. This act meant that the government got to play both plaintiff and the defendant in the same proceeding hence leading to a conflict between the principles of natural justice and the doctrine of necessity.

Initially, the lawsuit was filed in the US, as the Indian government believed that Indian courts were not equipped to handle such a claim. However, the litigation was later on transferred to Indian courts in 1987 in the direction of judge Keenan. The Indian government had initially claimed US$ 3.3 billion while litigating in the New York courts, however, it ended up eventually settling for a meager US$ 470 million on behalf of the victims. This settlement was upheld by the Supreme Court. The Supreme Court had set up two separate committees for monitoring the functioning of the medical system set up for victims and another to advise on what needed to be done for the betterment of the victims. The State Government also set up a department. However, all that these committees ended up doing was shifting the blame. It became very difficult as a result to hold anyone institution accountable for cleaning of the site. As a result, the question as to whose responsibility it is to decontaminate the site still exists.

Also on the criminal side, the victims were largely let down as even though in Warren Anderson was charged with culpable homicide not amounting to murder, however, he failed to appear at his court hearing and was declared a fugitive. Unsuccessful attempts were made by the Indian government over the years to extradite him. He eventually died in 2005 at the age of 92 before conviction. In 2010 seven employees of UCIL were convicted however the charges were diluted and they were convicted of criminal negligence and sentenced to 2 years imprisonment. However, they were released on bail shortly after the verdict. In this way, we failed the victims both on the Civil as well as Criminal front.

So, in conclusion, the institutional response to the Bhopal gas leak is largely disappointing. However, it did manage to provide a framework and context for how future such incidents should be handled.

Vizag Tragedy and intake from past incident:

The gas leak took place on 7th  May and the national green tribunal took sun moto cognizance of the accident: “In Re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh”. In its order dated 8th May 2020 it stated that “Leakage of hazardous gas at such a scale adversely affecting public health and environment, clearly attracts the principle of ‘Strict Liability’ against the enterprise engaged in a hazardous or inherently dangerous industry.” It also constituted a 5 member committee to look into the accident, its impact on the environment, and make recommendations regarding compensation to victims. It also ordered LG Polymers to deposit Rs. 50 crores with the DM, Vishakhapatnam. It was also observed that the gas leak had occurred as a consequence of non-compliance of manufacture, storage and import of Hazardous Chemical Rules, 1989.

Now the problem is that NGT has applied the principle of strict liability here. The principle of strict liability was developed in Ryland vs. Fletcher (1868). It laid down that if a person brings onto his land and keeps any hazardous substance which is likely to cause injury if it escapes, then in case it does escape the person will be liable irrespective of the fact that there is no mens rea on his part or that he had taken all reasonable precautions to prevent its escape. However, there are three defenses available to the defendant:

  • Act of God
  • Consent of the plaintiff
  • Fault/negligence on part of the plaintiff

Thus, if the defendant can prove any of the above then he can escape liability. Hence, this principle may not be suited to the challenges posed by technological and industrial advancements of the present day as has been held in MC Mehta vs. Union of India (1987) or more popularly known as the Oleum Gas Leak case. In the case, PN Bhagwati J. evolved the principle of absolute liability which is ‘stricter than strict liability’. It was held:

an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken

The court refused to recognize the exceptions given in strict liability since when the industry engages in hazardous activities it is presumed that the permission given to it is subject to the fact that it compensates in case of an accident. The Supreme Court evolved this doctrine keeping in mind the technological advancement that had taken place since Ryland vs. Fletcher.

The fact is that the world has changed a lot. Foreign companies coming to India and setting up their operations here, do mean significant economic growth, however, at the same time, they also pose a huge risk to the people and the environment. This risk needs to be taken into account. If in the present case the principle of strict liability is applied it will inevitably give the defendants a chance to escape liability by claiming one of the defenses.

On 7th May, the Andhra Pradesh High Court also took suo moto cognizance of the incident and directed the state government to seize the plant and ensure that no one should be allowed to enter the premises. Also, they restricted the Directors of the Company from leaving the country without the leave of the court and directed them to surrender their passports to the court. It also noted that various committees had been appointed in this matter by the NGT, central government, and state government which can be a cause of grievance. It thus directed the various committees to appraise the court on their findings. All these directions do reflect a change in Indian jurisprudence since Bhopal Gas Leak. It feels like a step in the right direction, especially the restriction on traveling abroad, in the sense that it can help avoid extradition related problems similar to the ones that arose in Bhopal Gas Leak case.

Subsequently, LG Polymers had filed a review petition in NGT, stating that it did not have jurisdiction to take suo moto cognizance of the accident once cognizance had been taken by the High Court. However, this was dismissed by NGT on 3rd June and it was held that the tribunal has the power to institute proceedings against environmental law defaulter, and therefore the order dated 8th May is legal. It said that such power was necessary to ensure that justice is not denied to people in remote locations. The company had pleaded that it will face inconvenience in dealing with multiple proceedings. This plea was rejected as it is “absurd and untenable in the face of clear and absolute liability of the company for the loss of life, public health, and the environment by its hazardous activities in violation of the law.” It was also observed that the company had been operating without Environmental Clearance which is a clear violation of Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. The liability of the company is thus strict and absolute. And the burden of proving that it isn’t liable is on the company.

Conclusion:

The Vizag gas leak will in a lot of ways to be a test to see how the principle of absolute liability has evolved. It the coming months the importance of economic development will have to be weighed against environment protection and it will require balancing which the courts and the government failed to do in Bhopal Gas Leak. In conclusion, whether or not we have learned anything from our past is a question that is yet to be answered and it is a question that needs to be answered affirmatively.

Approved & Published – Sakshi Raje

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The impacts of Social Media on law

I think there should be regulations on social media to the degree that it negatively affects the public good

Elon Musk

As a 90s kid, I have witnessed the technological as well as cultural shifts that came with the invention of WWW (world wide web). In the mid-90s message forums online transformed into online forums. It was easy and it was accessible to all. Within the 7 years of its conception, we were introduced to the first social media site Six Degrees. And it was just the beginning.

Our ability to communicate through language and gestures gave us humans a distinct evolutionary advantage than other species. We, humans, are social beings, and we need social interaction. Words bonded us. Our linguistic ability was one of our momentous accomplishments. However, how we communicate between ourselves has gone through changes with the ever-changing times. It has been a long-lasting peregrination that started from the earliest cavemen to the earliest civilization until this very era of globalization & modernization; it is striding on. The only difference is those cavemen used to paint symbols on their cave walls, we use emojis. Technology has simplified our lives. And it has also changed the way we communicate these days. Hashtags, Memes, Acronyms, Posts, Likes, Comments, Shares, Tweets, Mentions are just we stay ‘in touch’ with each other and with the entire world.

These days when someone mentions social media, we visualize sites like Facebook, Twitter, Instagram, Snapchat, Whatsapp, etc. Some of you may not even remember a world without social media, which is hysterical and amusing. To be candid it’s also difficult to imagine a world without social media. In this day and age, these social media sites are not just sites where you upload your favorite selfies and memes but it has become a powerful weapon. A weapon if used rightly can bring people together; give voice to the masses who remain unheard; bring down corrupt dictatorship, like the one we witnessed during 2011, in Egypt, where hundreds of thousands of protestors gathered in Tahrir Square, which later unseated the president, Hosni Mubarak. These protestors used ‘Facebook to schedule the protests, Twitter to coordinate and Youtube to tell the world’. But there’s always two sides to a coin. Sometimes people also use social media for cyberbullying, spreading fake news, trolling, catfishing and privacy abuse. But the most sinister and blood-curdling usage of social media is done by terror groups. Al- Qaeda is one of such groups which uses social media extensively. Islamic State in Iraq & Syria or ISIS is another such group that uses social media as a medium to threaten the masses by posting videos of beheadings.

More than 1.5 million pieces of content (web links, news stories, blog posts, notes, photos, etc.) are shared on Facebook daily. Social media has overtaken porn as the #1 activity on the Web. 1 out of 8 couples married in the U.S. last year met via social media. It took the Radio 38 years to reach 50 million users, the Television took 13 years & the Internet took 4 years to gain 50 million users. But facebook added 100 million users in less than 9 months. If Facebook were a country it would be the 4th largest country, ranking itself after China, India, and the United States. Companies are using LinkedIn as their primary tool to find employees. It is clear that social media isn’t a fad. It’s a fundamental shift in the way we communicate. 

Changing Times:

It would be asinine to ignore how social media impacts society as a whole. The power of social media has instigated various social changes. Its fierce presence has been recognized in the legal environment as well. Law and social change go hand in hand. Law is both independent and interdependent on the social system. The changes in a particular society can be studied by studying the law, and by studying the law one can understand the changes in that particular society. Ergo law is the reflection of the will and wish of society.

India has one of the highest numbers of internet users and the highest social media presence in the current scenario and this will only keep on increasing. These days almost everyone owns a smartphone which comes with a package of preinstalled social media and other apps. With just a few clicks and your online profile is created. One does not need to submit any kind of ID proof or any kind of document. Sounds very convenient, right? It’s due to this convenience that it has been often misused. With great and new increase in technology, emerges a great and new kind of crime, called Cyber Crime. Cyberstalking and online harassment is a very quotidian occurrence in the world of social media. The veil of anonymity gives these perpetrators a false sense of security. In this techno-savvy day and age where an individual is heavily dependent on this highly digitalized world of e-commerce, e-business, e-governance, e-procurement and emails, laws related to cyber crime was the need of the hour. Information Technology Act, 2000 was one of the first steps India took to address various offences related to cyber crime. IT Act 2000, incorporated not just any and all conceivable cyber crimes against a person, but also included cyber crime against government and property. It also encompassed laws relating to not only cyber crimes but intellectual property, data protection and privacy. 

Offences such as cyber stalking, impersonating, identity theft, violation of privacy, publishing obscene or sexually explicit material including that of a child (a person who has not completed 18 years) are recognised as Cybercrime against a person, and are punishable under Information Technology Act 2000. 

Serious offenses like cyber terrorism which is considered as Cybercrime against the government is punishable with imprisonment for life. This act also acknowledged computer vandalism, siphoning of funds from financial institutions, stealing data, and copyright as offenses. These offenses are Cybercrime against the property.

Cybercrimes such as credit card fraud, hacking, virus attacks, online banking fraud, pornography are becoming run of the mill events. 

According to National Crime Records Bureau or NCRB, which released the statistics late on Monday,30th,March 2020, “During 2017, 56.0% of cyber-crime cases registered were for the motive of fraud (12,213 out of 21,796 cases) followed by sexual exploitation with 6.7% (1,460 cases) and causing disrepute with 4.6% (1,002 cases).”

The cases of cybercrime in India have clearly doubled. In 2014, 2015 and 2016, India recorded 9,622, 11,592 and 12,317 cases of cybercrime respectively.[1]

Admissibility of Social Media as Evidence

Absence of evidence is not evidence of absence

-Carl Segan

According to Lochard’s principle of forensics which states that the perpetrator of a crime will bring something into the crime scene and leave with something from it. This principle is also applicable to cybercrime. Like fingerprints in a crime scene, social media can provide an irrefutable trail that investigation agencies can use to trace the crime. But we need to understand that like any other evidence, these sites can provide not only tangible evidence of criminal or civil disobedience. In criminal cases, law enforcement looks for the presence of the crime itself or corroborating evidence of a crime. On the contrary, a civil investigation pertains more to finding evidence that supports a claim. Regardless, social media evidence is considered a form of digital evidence, which for all the intents and purposes, is a relatively new aspect in the field of investigations.

A crime primarily has four key components- mental state or men’s rea, conduct or actus reus, concurrence, and causation. And to prove that one has committed a crime the prosecution needs evidence. The burden of proof mostly lies on the prosecution (except in a few exceptional cases). In the eyes of law, a person is innocent until proven guilty. The guilt must be proven beyond a reasonable doubt. Evidence becomes an instrument to satisfy the court, to prove or disprove a disputed fact between the parties involved in litigation. There are various forms of evidence. Other than the traditional forms of evidence like physical, testimonial, circumstantial, etc, electronic evidence has been accepted recently and is considered as documentary evidence. Section 3 of the Indian Evidence Act,1872, recognizes electronic records as evidence.

In its rawest form, social media can be considered a form of evidence, but unlike traditional criminal evidence, social media takes on the unique form of electronic or digital evidence.  By definition, electronic or digital evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. Such form evidence, especially that of social media, tends to be more capacious, more difficult to destroy, easily modified, easily duplicated, potentially more expressive, and more readily available than traditional forms of evidence. But before accepting digital evidence it is mandatory to determine its relevance, veracity, and authenticity by the court and to establish that whether the fact is hearsay or a copy is preferred to the original.

In 2017, Haryana Court recognized whatsapp chats as evidence to convict 3 law students of rape. The 3 former students of OP Jindal Global University were held guilty for blackmailing and raping a student of the same university for two years. ASJ Sunita Gover said that the messages proved that the victim was forced to keep sharing nude pictures with the culprits. The court considered the chats as documentary evidence supporting the victim’s statement.[2]

However, in another incident, Justice Sanjeev Sachdeva observed while hearing the petition for registering the FIR connection with an alleged suicide note claimed to be of Arunachal chief minister Kalikho Pul, “A WhatsApp post does not qualify as legal evidence, especially when neither the original nor a copy of the original document is produced.”[3] Such a form of evidence needs corroboration.

Our judicial system is to a great extent based on the British Legal System. The modifications that the Indian judicial system has experienced, the United Kingdom underwent similar transformations. Social media and other electronic forms of communication is such a formidable force that cannot be ignored by any judicial system or any nation. Emails are admitted as documentary evidence in the United Kingdom. The Code of Practice for Legal Admissibility and Evidential Weight of Information Stored Electronically provides a framework to determine the reliability of such electronic forms of evidence. 

In a 2018 case of Forse v Secarma, whatsapp messages furnished the evidence which guaranteed the success of Secarma at the very interim injunction stage of the trial.[4] 

The powerful impact of social media is well recognized in the U.S. legal environment. Alteration of privacy settings, deactivating social media accounts, deleting any content all these falls under the unlawful destruction of evidence. The federal law known as the Stored Communications Act (SCA) states that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Law enforcement and government entities that have good faith are prime exceptions. Privacy rights are overruled when social media contradicts injury claims.

In Romano V. Steelcase Inc. 2010, a famous personal injury case, the Supreme Court of New York recognized electronic discovery or e-discovery, issued discovery orders granting the defendants access to her the plaintiff’s facebook and myspace account, including all the deleted pages and information. Justice Jeffrey Spinner rejected the plaintiff’s argument that the production of such information would violate her right to privacy.

Zimmerman vs. Weis Markets, Inc. another personal injury case from 2011, where the judge ruled in the favor of the defendant and permitted discovery and access to the plaintiff’s Facebook and myspace accounts, to refute the claim of the plaintiff, that he suffered permanent injury to his health and wellness. 

Judge Michael Corriero explains “the prohibition against using illegally, essentially solely, to law enforcement. It doesn’t apply to another civilian.”

An attorney has ethical responsibilities when searching on social media platforms and collecting content to be used as evidence as well as any attempt to tamper with such content like deleting is considered unethical.

The social media revolution has truly changed the face of the investigation. And Facebook and Twitter have become one of the most underrated sources for law enforcement. According to a 2012 study conducted by LexisNexis, four out of five officers used social media for investigative purposes from a total of 1,221 law enforcement professionals surveyed. Of the agencies surveyed, 82% of local and municipal law enforcement agencies utilized social media for investigative purposes, with only 71% of state agencies utilizing social media for the same purposes. Additionally, 86% of cities under 50,000 people utilized social media in some respect, while only 78% of cities over 100,000 people used social media in the same capacity.

A growing number of people joining social media every day makes it an efficient tool for law enforcement to monitor activities of any suspect. 

The undeniable and strong presence of technology has been acknowledged by various courts in various forms. The courts are not hesitating to use social or digital media in innovative ways.

In the same year of 2017, the Rohini Civil Court in Delhi accepted Whatsapp blue double-ticks as receipt proof. Senior civil judge Sidharth Mathur accepted the printout as proof that notice had been read by the recipients, and concluded that defendants had acquired the knowledge of the scheduled hearing. [5]

In another incident Justice Rajiv Sahai Endlaw, while hearing a case filed by Tata Sons, allowed the plaintiff to serve the summons on one of the defendants through Whatsapp, email, and text message. The three defendants were served at their respective addresses, but as the summon could not be completed at his address the Delhi High Court allowed this move. [6]

The infamous 2g case was one of the first instances where the court considered summons via email as a valid summons.[7]

However, very recently in 2018, Special Judge of Patiala House Courts, New Delhi dismissed the application of a complainant who sought the usage of email and Whatsapp for serving a summons. The Court rejected the application saying that the court system does not have the facility to affect the service through electronic mode. (Bhim Rathke vs Mr. R.K. Sharma)[8]. Hence it can be said that it only in exceptional circumstances where the court allows service of summons via any electronic medium. 

Determining authenticity:

In India, law enforcement identifies a suspect and then asks platforms to supply information about them. For example, WhatsApp requires a Mutual Legal Assistance Treaty request or letter rogatory to compel the disclosure of the contents of an account. WhatsApp will take steps to preserve account records in connection with official criminal investigations for 90 days pending the receipt of the formal legal process. One can also expeditiously submit formal preservation requests via the WhatsApp Law Enforcement Online Request System. In responding to a matter involving imminent harm to a child or risk of death or serious physical injury to any person and requiring disclosure of information without delay, a law enforcement official may submit a request via the WhatsApp Law Enforcement Online Request System.[9]

Whatsapp strictly refuses to review or respond to requests submitted by non-law enforcement officials. Whatsapp also does not retain data for law enforcement purposes unless they receive a valid preservation request before a user has deleted that content from their service. Because WhatsApp does not store messages once they are delivered or transaction logs of such delivered messages. According to them, Undelivered messages are deleted from their servers after 30 days.

The evidentiary value of an electronic record totally depends upon its quality. Provisions regarding dealing with the evidentiary value of the electronic records are discussed in the Indian Evidence Act, 1872. Discussions on the authenticity and admissibility of documentary evidence in the form of an electronic record and its standards at par with the conventional form of documents are dealt with in the Indian Evidence Act. The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872.

Section 65-B of Indian Evidence Act lays down the conditions and procedure of proof of an electronic record in a court of law. Section 65B is important as it recognizes that the original primary evidence of electronic records cannot be expected to be brought before the court and even if it is, the same being in binary form the same cannot be understood by the court.  The net effect of Section 65B is that the output in the form of a printout or data copied on CD/DVD etc produced by the computer is rendered admissible in the court, provided certain conditions are met. This is the import of Section 65B(1). The output of an electronic record, in order to be admissible in a court of law, has to be filed along with a certificate u/s 65B(4) of the Evidence Act. Such a certificate has to be issued by a person occupying a responsible position with respect to the computer from which the data is produced. The certificate has to certify the conditions laid down in S. 65B(2) relating to the integrity of data and computer system; the manner of production of the output of electronic record, identity, and particulars of device used including the original device. The entire idea behind the certificate is to ensure, once again, the integrity of source, the authenticity of data, so that the court can place reliance on it. This is important since electronic data is more prone to tampering and alteration.  (In Kundan Singh Vs. The State 2015, the court stated that a certificate u/s 65B can be filed even thereafter, and need not be filed alongside)[10]

The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.

The four conditions referred to above are:

(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.

(2) During such a period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.

(3) Throughout the material part of such a period, the computer must have been operating properly. In case the computer was not properly operating during such a period, it must be shown that this did not affect the electronic record or the accuracy of the contents.

(4) The information contained in the electronic record should be such as reproduced or is derived from such information fed into the computer in the ordinary course of such activities.

Electronically stored information was treated as a document in India before 2000, secondary evidence of these electronic ‘documents’ was added through printed reproductions or transcripts, and the authenticity was certified. The signatory would identify the signature in court and be open to cross-examination by meeting the conditions of both sections 63 and 65 of the Evidence Act. When the creation and storage of electronic information grew more complex, the law had to change more substantially. By the Information Technology Act, 2000 new definitions are given to the words “data”, “electronic record”, and “computer”.

  • New Section 22A has been inserted into the Indian Evidence Act, to provide for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question.
  • Section 59 of the Evidence Act is amended by the IT Act to exclude electronic records and inserted section 65A and section 65B, instead of submitting electronic records to the test of secondary evidence as contained in sections 63 and 65.
  • Section 65A has given the right to prove the contents of electronic records in accordance with the provisions of section 65B. Section 65A of the Evidence Act is for electronic records just as section 61 does is for documentary evidence.
  • Section 65A is a special law that stands apart from the documentary evidence procedure in sections 63 and 65. Any probative information stored or transmitted in digital form is digital evidence or electronic evidence.

Under Indian Law S.69 and 69B of the Information Technology Act, 2000 lays down the provision for investigation of certain crimes that require search upon order by the competent authority. The powers of search and seizure are also laid down under several other rules, such as rule 3(9) of the Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011. This allows access to information from intermediaries by a simply written order by “any agency or person who is lawfully authorized for investigative, protective, cybersecurity or intelligence activity”. Under rule 6 of the draft Reasonable Security Practices Rules, 2011 framed under Section 43A of the Information Technology Act, where any government agency may, for the prevention, detection, investigation, prosecution, and punishment of offenses can obtain any personal data from an intermediate “body corporate” which stores such data.

Conclusion:

The rules framed for investigation of digital evidence are sort of regressive and do not inspire much confidence when it comes to safeguarding privacy. Digital evidence has proved to be a crucial role in the conviction or acquittal of a suspect in recent years. It’s not just the Indian Judiciary but nations worldwide acknowledge the presence and power of Social Media.

For example, In the United States, the US Federal Rules of Evidence is the legal measuring stick for any form of electronic evidence, including social media evidence. The Federal Rules of Evidence covers both civil and criminal evidence with some rules applying directly to one or the other. One of the provisions that can be directly applied to the capture and collection of online social media evidence is that of Rule 1001, which refers to the contents of writings, recordings, and photographs. This rules generally require the original or reliable duplicate of any “writing, recording or photograph” when the content of that evidence is given legal significance by substantive law (such as a copyrighted picture posted to a social media site) or by the parties themselves (such as using a video recording posted to a social media site of a particular crime). This is commonly referred to as the “Best Evidence Rule” which in short limits the admissibility of evidence to merely the best that the nature of the case will allow. To exemplify, it can be implied that an original online posting of a particular Facebook profile can essentially be altered by the owner of the profile at any given time, thus an effective screen capture of such evidence would suffice as the “best evidence” in place of the original. Although there is really no de facto standard as to how social media artifacts should be captured legally, there are a few cases that provide precedence into how such sites can be captured.

In Barnes v. CUS Nashville, 2010[11], in which the Magistrate judge offered to create a pseudo-Facebook account if two witnesses were willing to accept the magistrate judge as a “friend” on Facebook solely for the purpose of reviewing photographs and related comments in camera-aka in the chamber. After reviewing and disseminating to the parties any relevant information, the magistrate judge would close the Facebook account and issue a ruling.

There are also issues of legality that must be considered when capturing content that lies behind measures of protection such as passwords or privacy settings that prohibit access to the general public.

Many Facebook users do not show or broadcast their pages to the general public, but rather only to particular friends that they choose to. 

Investigation for any kind of digital evidence is a different ball game. Unlike traditional investigation, the investigator has no control over Social Media and the Law. This can be a legal red-flag from the perspective that just like traditional evidence, social media evidence must be collected in a controlled and proper forensic manner. This difficulty is further complicated by the nonavailability and lack of court-validated digital forensic tools that are available for the collection and analysis of social media evidence.

Approved & Published – Sakshi Raje

Reference

[1]https://www.livemint.com/companies/news/cyber-crime-cases-in-india-almost-doubled-in-2017-11571735243602.html

[2] https://www.hindustantimes.com/india-news/whatsapp-chats-land-three-law-students-of-sonepat-varsity-in-prison-for-rape/story-ZyQBR1vqqjoBoReQT2coMJ.html

[3] https://www.gadgetsnow.com/tech-news/whatsapp-messages-cannot-be-treated-as-evidence-delhi-hc/articleshow/59643849.cms

[4]https://www.casemine.com/judgement/uk/5c8f2dbe2c94e027efb18617

[5]https://www.huffingtonpost.in/2017/05/18/court-accepts-the-blue-tick-of-whatsapp-as-proof-of-receiving-th_a_22096513/

[6] https://www.hindustantimes.com/delhi/delhi-hc-allows-service-of-summons-via-whatsapp-email-text-message/story-0Une6kRAI9T9AYPZp9TjbJ.html

[7]https://www.hindustantimes.com/delhi/summons-through-sms-e-mail-valid-2g-case-court/story-A1iBVVGJVvOWChnu0vnQGI.html

[8] https://indiankanoon.org/doc/186269913/

[9] WhatsApp Law Enforcement Online Request System

[10] https://indiankanoon.org/doc/10902800/

[11]https://blog.ericgoldman.org/archives/2010/06/judge_offers_to.htm

Categories
Editorial

Israel-Palestine Conflict

This Essay is submitted by –

  • Kartikey Srivastava, 4th semester law student, Dr. Ram Manohar Lohiya National Law University, Lucknow.

Abstract

To be specific the conflict between the two states has started since the creation of Israel in 1948, however, the conflict is mainly based on religion/ethnicity. The conflict between the ethnic/religious groups dates back to more than 3000 years ago.

The article sheds some light on the history of the conflict emerging ever since between the two states, Israel & Palestine and it also enunciates the contemporary context for both the states with respect to India. The article will mainly emphasize on the history of the emergence of the Israel-Palestine dispute.

Introduction

Jerusalem, the epicenter of the 3 religions in the world which constitutes more than fifty percent of the earth’s population is the place where it all started. The two states here in conflict i.e. Israel and Palestine were not ready to even recognize each other. The dispute among inhabitants of this place dates back from around 3000 years ago. The fight was among the Jews, the Arabs, and the Christians. 

History of Arab Palestine Dispute

After the fall of the Ottoman Empire in the late 19th century, Zionism began to emerge all over Europe. Zionism was a nationalist movement of Jews where they aimed to form a nationalist state as Jews at that time were getting persecuted almost all over the globe. Palestine was the ancient homeland of Jews and Jerusalem was of their religious importance. The migration of Jews was at zenith during the time of First world war mostly because of the Balfour Declaration which was given by Sir Arthur Balfour which stated that the British will give Jews their national home i.e. Palestine after the war ends. But the British formed a secret agreement named ‘Sykes-Picot’ where they promised many different countries to be given to their allies. They kept Palestine for themselves but it was also promised to the Arabs.

After the end of the First World War, the British Mandate came into force and the population of Jews in Palestine raised to 30 percent as compared to 3 percent which was during the ottoman empire. Jews started forming their settlements i.e. they forced the local Arab Palestinians out of their land by buying the neighboring land. These Jewish settlements spread all over Palestine.

In 1936, Arabs of Palestine revolted against the British mandate and the British suppressed them with the help of Jewish militias. To satisfy the Arabs too the British capped the number of Jewish migrants entering the state yearly.  This was not welcomed by the Jewish militias and they turned against the British Mandate.

The Holocaust came with World war 2 where the Jews were killed by the Nazis. The estimate of the casualties of Jews was approximately 4.2 million.

Creation of Israel

After the end of the Second world war, the British left the Palestine dispute in the hands of United Nations, the state of Israel came into existence as it was made a Jewish state and Palestine was given to Arabs. However, the city of Jerusalem was put under International control as it was equally important to Jews as well as Arabs.

Arab-Israel War 1948-49

As soon as Israel came into existence all the neighboring Arab states (Jordan, Syria, Egypt, and Iraq) attacked the newly formed Israel, but Israel marched towards all of them and it annexed the neighboring lands including the territory of Palestine. Gaza Strip came under the control of Egypt and the West Bank under Jordan. At this time Israel possessed much more land than it was promised to it by the United Nations.

Six-Day War 1967

Israel annexed Golan Heights, West Bank and Gaza Strip from Syria, Jordan and Egypt respectively and defeated them with a great margin. Israel even managed to conquer the Sinai Peninsula which was initially Egypt’s territory.

Yom Kippur War 1973

Syria and Egypt attacked Israel intending to recapture their territories. This resulted in the signing of the Camp David Accords in 1978 by Egypt and Israel where the Sinai peninsula was returned to Egypt and in return Egypt gave recognition to Israel as a country, Egypt being the first Arab country to do so.

Israel Palestine Dispute

After the formation of the Palestine Liberation Organization (PLO) in 1964, the war for independent Palestine was led by them.

1st Intifada (1987-93)

‘Intifada’ means rebellion or uprising in Arabic. There were protests and boycotts by PLO. Violence caused in this cost the lives of 100 Jews and 1000 Palestinians. The major thing which happened during this was the emergence of a new organization in the Gaza Strip named ‘HAMAS’ which was more nationalistic and extremist in approach as compared to PLO.

The main distinction between PLO and HAMAS was that PLO wanted a peaceful agreement between Israel and Palestine and would later recognize Israel as a nation whereas according to HAMAS, Israel, a Jewish state had no right to exist.

Oslo Accords 1993

A peace agreement signed between Israel and PLO which was mediated by the USA. The agreement’s mentioned the following things majorly: –

  • Recognition of State of Israel by PLO.
  • Recognition of PLO as representative of Palestinians by Israel and not a terrorist organization.
  • Governance of West Bank and Gaza to be given to Palestinian National Authority.

The main objective of this peace agreement was to hold the situation for the next 5 years. But after 5 years, in 2000 when Camp David II i.e. the talks failed. It gave to rise of Second Intifada.

2nd Intifada (2000-05)

This was more violent than the first intifada which was accompanied by bus bombings and various other terrorist attacks which led to the loss of lives of 1000 Jews and 3200 Palestinians.

The Aftermath of the 2nd Intifada

There was a rightward shift in Israel’s politics as those political parties which claimed to remove Palestine from the world’s map started gaining popularity in comparison to those who wanted peace between the two states. Israeli forces were withdrawn from Gaza Strip as they knew that Gaza would never join Israel. Elections were held after this in Gaza in which HAMAS won, and after a conflict with ‘Fatah’ (a PLO affiliated party), HAMAS removed them completely from Gaza.

HAMAS after coming into power started launching rockets over the civilian areas of Israel and thus violating the Geneva Convention. The reply given by Israel to this was blockading Gaza. This meant that no one can enter and exit Gaza without permission from Israel. There were three wars between Gaza and Israel which led to the deterioration of Gaza’s condition to the very extent.

Major Issues between Israel Palestine’s Peace

Status of Jerusalem

Both religions have historical religious importance to this city. Israel claims Jerusalem as their capital whereas the whole world considers Tel Aviv as its capital.

Palestinian Refugees

5 million Palestinian refugees are staying in the neighboring countries. Israel itself has a population of 8 million and let the huge number of refugees on Israeli land will surely be a threat to its security.

Israeli Settlements

Israel had encouraged its people to settle in the west bank and they are provided security and cheaper rates.

Gaza’s Blockade

The blockade of Gaza by Israel has a major impact on the overall situation of Gaza. It has become one of the poorest countries in the world.

India’s relations

India has good connections with both the countries as the United Nations has urged India several times and even sent the delegation to mediate between Israel and Palestine. Our Prime Minister has visited both these countries as the first-ever Indian prime minister who visited these countries and thus making the diplomatic relations stronger.

Palestine 

Even the President of Palestine requested Prime Minister Modi to help resolve their issue ongoing for 3000 years. To which our Prime Minister assured him that one day Palestine will be a free, Independent State. In 1974 India became the first non-Arab country to recognize PLO as the sole and legitimate representative of Palestinian people. In 1988 India was also one of the first countries to recognize Palestine as a state. In 2011 India voted for Palestine to become a full member of UNESCO. India even voted in favor of the resolution titled “The right of Palestinian people to self-determination” in the United Nations.

Israel

India is the largest arms buyer from Israel, and last year India signed the biggest deal in the history of Israel which was close to 2 billion dollars. The visit of Israeli Prime Minister Netanyahu also marked the 25 years of establishment of diplomatic ties between the two countries. The Teen Murti Chowk in central Delhi was renamed as Teen murti-Haifa after the Israeli city Haifa. Israel has also helped India during the Kargil war.

In the light of the COVID-19 pandemic situation, India also sent five-tonne cargo via airplane to Israel which mainly consisted of a drug named  ‘Hydroxychloroquine’ which is usually an anti-malarial drug but it has been anticipated that it is the best possible cure for coronavirus. Several countries have been experimenting to find the cure of coronavirus through this drug and the current prime minister of Israel, Mr. Benjamin Netanyahu also thanked the Indian counterpart on behalf of all citizens of Israel for this essential drug.

Conclusion

The possible solution acknowledged by the experts and various political personalities across the globe is the “Two-State Solution”. Where both states have to acknowledge each other’s existence and their legitimacy. The facts belonging to both the states are somewhat true and both of the states should achieve common ground. For Example, as Jewish were persecuted all across the globe, there is a need for a Jewish state, but as the Palestinians are staying in Palestine so why should they leave their homeland on which their ancestors are living. So claims from both the countries hold water, and the two-nation should negotiate and come forward to sign a  peace agreement and this can likely happen if India pitches itself in as a mediator and make the leaders of the two-state talk to each other on the table rather than continuing an ongoing war from ages. The extremist approach from the side should be cut off loose as it just hampers the situation like the HAMAS which denies the existence of Israel should not come into the picture but the organization like PLO which wants two peaceful states should be put in a major role. Eventually, the world hopes to see the two peaceful neighboring states named Israel and Palestine.

Approved & Published – Sakshi Raje

Categories
Editorial

Force Majeure: the defense for non-performance of obligations in contracts

Force Majeure is an emerging new concept in Indian laws, specifically during this pandemic period in the business world. Where COVID-19 has a devastating impact on human lives across the world, it also shows its devastating impact on the businesses where its operations and consequently contractual obligations are revised to assess its impact. The word which now is being most heard in contractual context today is the “Force Majeure” and its applicability in the contracts.

What is Force Majeure?

Force Majeure is basically a contractual clause according to which the parties to the contract have the right to remove the contractual liability for the non-performanence of contract in situations which are natural or unavoidable circumstances because of which the parties are prevented from the performance of their contractual obligation.

The term “Force Majeure” is a French term that refers to “greater force”. It is derived from the concept of Act of God, that is, wherein the event of any uncontrollable natural forces neither of the party will be held liable, however, force majeure clause also includes human actions like war, terrorism, acts of government, plagues or epidemics. Nevertheless, this concept of law differs from the concept of Pacta Sunt Servanda which means the agreements must be kept, which is the basic concept of every contractual whether it be civil or international law.

As defined in the Oxford Dictionary, it is an unexpected circumstance, such as war, that can be used as an excuse when they prevent somebody from doing something that is written in a contract. Therefore, where the party fails in the performance of any of their agreement neither of the party would be liable if it is beyond the reasonable control or the circumstances is such that it affects the performance of any its obligation or it could not be reasonably be foreseen but it is also to be noted that such clause won’t be applicable as an excuse for failure or delay resulting from general economic conditions or any other condition. This clause of Force Majeure, although have got no reference under Indian statutes, some relevancy can be found under Section 32 of Indian Contract Act, 1872, according to which, wherein certain contracts are completed on the fulfillment of obligation commonly known as a contingent contract, and if any uncertain future event occurs leaving the contractual obligation to be unenforced then under these circumstances the contract becomes void.  

The parties seeking defense under such clause needs to show that:

  • That the force majeure event was the result of delayed or inability to perform obligation;
  • All the possible and reasonable steps were taken to avoid or mitigate the consequence of the event;
  • Non-performance of obligation was due to unavoidable circumstances.

Therefore force majeure clause is a kind of contractual clause which can be applied only on the specific circumstance when fulfilled for such application to the contract and the consequence if such event occurs, which is a necessary condition and such occurrence should be beyond the control of parties and all attempts so far being made have failed to fulfill the obligation of the contract is needed to be proven. And if such conditions and the events so far specified in the contract is fulfilled then, under those circumstances, the parties would be relieved from performing their obligations so far being undertaken till such force majeure event continues.

Moreover, if the language of the clause so desires the parties may be required to issue a notice for the occurrence of such event the incapacity or delay in the performance of obligation due to the occurrence of the event, also some of the contracts even permits for the termination of the contract if the event continues for a long period.    

What is the Frustration of Contract?

The frustration of the contract refers to the termination of a contractual obligation by the parties without the fault on either side of the party. Therefore, in the event where the performance of the contract becomes impossible due to any unforeseen or unenforceable occurrence of the event with no party at fault, under such circumstances the contract becomes frustrated and the Doctrine of Frustration comes into play. The frustration of contract thereby results in relives the parties from the performance of obligation and liabilities due to such non-performance. Hence the happening of an event outside the scope of contract making it impossible to perform is known as the frustration of contract.

Since the Force Majeure is not the general law and is just creature of contract which has its application if specified in the contract, and therefore if there is no force majeure clause in the agreement affected parties will have to opt-out other provisions to mitigate and to save themselves from liabilities so far arsing for not performing a contractual obligation. And such other defense in such cases other then force majeure is that of the frustration of contract.

Under Indian statue sec. 56 of the Indian Contract Act, 1872 provides the provision for the performance of an act which after the formation of the contract becomes impossible or unlawful which the parties couldn’t prevent, such agreement to perform an act becomes void. Under the Satyabrata Ghose vs. Mugneeram Bangur co. and ors.[1], the Supreme Court upheld the principle that the term “impossible” has to be interpreted in the practical sense i.e. the frustration of contract would still be the valid defense even where there is no absolute impossibility, but the terms had fundamentally changed which was not considered during the time of making of such agreement. Also under sec. 65 of the Act also has got some relevance in frustration of contract as to where the contract becomes frustrated and void, the party who has secured any benefit out of such agreement shall be forced under this sec to restore such benefit or to make compensation to the other party.

Difference between Frustration of Contract and Force Majeure:

As under the force majeure, its applicability is dependent on the inclusion of a clause in the contract agreement, and parties in this case generally before the execution of contract agree on an exhaustive list of events for its applicability, whereas under the doctrine of frustration of contract the contract agreement can be set aside or discharged upon the happening of an uncertain event which renders the impossible to fulfill its obligation and is applicable when invoked by either party subsequent to the execution of the contract.

The frustration of contract is invoked in the case where the subject matter of the contract is destroyed, which subsequently renders the contract to be void and thereby resulting in obligations by parties to be ceased, whereas, under force majeure contract the provision contemplating an event can result in a delay in performance of the contract and subsequently in fulfilling the obligation towards parties but invoking such provision doesn’t mark the end of the contract, and continues till the event continuos.

However, it is also important to note that where the provision of force majeure is invoked then the frustration of contract can’t be applied, and if the condition is inversed i.e. the contract doesn’t include force majeure clause in agreement then the defense can be taken under the frustration of contract.

Is prevailing COVID-19situation would be considered as force majeure event?

COVID-19 pandemic has not only affected the national trade but also cross-border trade, real estate market, and other businesses. Due to the spread of this COVID condition the parties’ obligation towards meeting their contractual obligation has been hindered. Due to the government-imposed restrictions in movement, production, labor shortage, costly raw materials have all resulted in contribution towards making the obligation either impossible or delay in performance.

Thereby in the wake of the above circumstances, many giant companies are either planning or have already invoked the force majeure clause in their contract. And since force majeure is a clause which requires prior invocation in agreement, and therefore to determine whether the COVID-19 has its application parties need to interpret the definition of force majeure events included in the terminology of agreement. Generally, such terminology includes pandemic, act of God, governmental actions, natural calamity, if the contract agreement contains any such condition then under such circumstances it force majeure may be triggered by the other party.

On 11th March 2020, WHO declared the novel coronavirus to be pandemic thereby leading the way towards its applicability in the interpretation of term under the force majeure clause. Also on February 20, 2020, the by the way of an office memorandum (O.M. No. 18/4/2020-PPD) Ministry of Finance has declared the disruption of the supply chains due to the vast spread of coronavirus shall be considered as an appropriate case for natural calamity. However, it is necessary to keep in mind that such invocation of force majeure event with respect to the COVID condition will be assessed on the case to case basis depending on the terms agreed between the parties. Thereby leading us the way to wait for the determination made by the courts to deal and interpret such provision in the light of prevailing pendemic condition. 

Edited by Vedanta Yadav

Reference

[1] AIR 1954 SC 44

Categories
Editorial

Fake News and its legal consequences amidst the pandemic in India

This Essay is submitted by –

  • Somya Jain, 3rd year, Ram Manohar Lohia National Law University, Lucknow.

We are not just fighting an epidemic; we are fighting an infodemic. Fake news spreads faster and more easily than this virus, and is just as dangerous.”

Dr. T.A. Ghebreyesus, Director-General, World Health Organisation.

While the world is grappling with the Covid-19 pandemic, eye-popping headlines about the virus’ origin and its unproven cure are being circulated through social media networks without any pre-evaluation or checking. Misinformation regarding the outbreak, spreading faster than its legitimate counterpart, serves as a tool for the fake news peddlers to put the society in turmoil whereby they can take advantage of the vulnerable populace. As the virus has transmitted at a startling pace, authentic information from the right authorities is very limited which is why authorities have to face an avalanche of misinformation. As of now, India does not have a specific law to deal with the ‘infodemic’, but there are certain existing legal provisions invokable in case a person caught circulating fake news during this lockdown.

National Disaster Management Act, 2005

The Ministry of Home Affairs on March 24, 2020, invoked Section 6(2)(i) of the Act, which lay down the policies on disaster management, to order a lockdown of the country. The ‘offenses and penalties’ mentioned under Sections 51 to 60 of the Act serves as an effective tool against offenders who obstruct the process of prevention and containment of the virus.

Section 52 lays down the punishment, which may extend up to two years with fine, for a person making a false claim for obtaining any benefits consequent to disaster from the government. Furthermore, Section 54 citing punishment for the false warning, states that “whoever makes or circulates a false alarm or warning as to a disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine.” Section 54 has been referred by the National Disaster Management Authority in its lockdown order.

Indian Penal Code, 1860

Section 54 of the NDMA is very specific to disasters, and the confines of fake news are much far away. Indian Penal Code is a more pertinent recourse available to a victim of misinformation. The Ministry of Home Affairs in its circular dated 2nd April 2020 mentions the applicability of Section 188 and Section 505 of the Penal Code. Section 188 prescribes punishment for disobeying any order duly promulgated by a public servant. The punishment includes imprisonment for a term which may extend up to six months, or with fine which may extend to Rs 1,000, or both. Any fake claim in defiance of the government’s order would land up such an offender in prison. 

Section 505(1)(b) addresses a wider canvas, any person who makes, publishes or circulates information that is likely to cause alarm to the public or is against public tranquillity, etc is punishable with imprisonment which may extend to 3 years or fine or both. Furthermore, a person peddling rumors around coronavirus can also be booked under Section 269 of the Penal Code which states the punishment for a person who knowingly does a negligent or unlawful act, likely to spread the infection of any disease dangerous to life.

Moreover, misinformation regarding religion amidst the pandemic has peaked since the Tablighi Jamaat Markaz in Delhi’s Nizamuddin emerged as one of the hotspots of the outbreak. Where a particular religion is being targeted, action can be initiated against such person for creating or spreading fake news, if the same is capable of being termed as hate speech. Section 153 of the Penal Code can be invoked in case a person makes a false claim and gives provocation with intent to cause a riot.

Furthermore, Section 153A of the Penal code lays down punishment for persons who indulge in wanton vilification or attacks upon the religion, race, place of birth, residence, language, etc of any particular group or class or upon the founders and prophets of a religion. The offense is a cognizable offense and the punishment for the same may extend to three years, or with fine, or with both. Section 295-A further lays down the punishment for deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. 

Epidemic Diseases Act, 1897

The Epidemic Diseases Act another enactment to deal with a pandemic of this massive extent. Under Section 2 of this Act, state governments and union territories can take special measures and formulate regulations to contain the disease. And Section 3 of the Act states: “Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offense punishable under Section 188 of the Indian Penal Code.” A person circulating misinformation could be arrested under Section 3 of the Act.

The Information Technology Act, 2000

During the present coronavirus crisis, the Social Media platforms have become an epicenter of all the fake news, misinformation, and hate speech messages. Because of this, the admins of the group and every user of social media platforms have to use the platform responsibly to not come under the scope of the IT Act. The admins, as well as the users posting such objectionable content, can be punished under Section 66C of the IT Act which deals with punishment for identity theft and says that whoever, fraudulently or dishonestly makes use of the electronic signature, password or any other unique identification feature of any person, shall be punished with imprisonment. Section 66D of the IT Act deals with punishment for cheating by personation by using computer resource, with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

Recent legal developments

The Supreme Court in its Order dated 31st March 2020 (Alakh Alok Shrivastava v. Union of India) expected media to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. And further noted that “a daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within 24 hours as submitted by the Solicitor General of India.” The Order also mentions the legal consequences ( Section 54 of Disaster Management Act coupled with Section 188 of the Indian Penal Code) one may have to face if caught spreading false information regarding the pandemic.

Freedom of speech and fake news

In this time of uncertainties, there is fecund ground for the concoction to flourish and grow. The people who have capitalized on the pandemic should face the abovementioned legal consequences. However, the information that is fake and leads to panic is punishable, not all information from authentic sources. Having a free discussion on the pandemic or lockdown does not contravene any law.

Moreover, the Government has far-reaching powers under the Epidemic Act and the Disaster Management Act. These powers are not meant to encroach upon freedom of speech as long as they are used to spread authentic information and not to cause panic among the masses. Therefore, any direction by the Government should be covered within the ambit of Article 19(2) of the Constitution. The Supreme Court, in S. Rangarajan v. P. Jagjivan Ram, has held that everyone has a fundamental right to form his opinion on any issues of general concern. Open criticism of government policies and operations is not a ground for restricting expression.

Freedom of speech not only extends to the right of expressing the views freely but also the right to know. The Apex Court in Bennett Coleman & Co Vs Union of India observed that the word “Right to Information‟ though not specifically incorporated in the Article 19(1)(a) of the Constitution of India, the right of Freedom of Speech and Expression is interpreted comprehensively and “Right to Information‟ is brought within the ambit of Article 19(1)(a). During this Covid-19 pandemic, the importance of the right to be informed is indisputable. Free media plays a vital role in the dissemination of authentic information to the general public.

Conclusion

The Central and State Government authorities should have to remain hawk-eyed regarding any online disturbance to protect the people from being a victim of the Infodemic. A single piece of false information that gains traction can bring the significance of genuine information to zero. Therefore, the authorities should strive for the early detection of fake news, debunk it with the help of social media platforms, and trace the sources of such misinformation. The existing laws on fake news such as the Epidemic Act are archaic and not very specific. The absence of such specific laws can lead to the arbitrary and indiscriminate arrest of individuals under the garb of law. The President on April 23rd, 2020 gave his assent to the promulgation of the new ordinance that seeks to amend the Epidemic Disease Act 1897, but the scope of the amendment is limited and does not cover the problem of misinformation in general. Therefore we need a specific anti-fake news law to end this menace, which again should hand the government proportionate power with accountability. Lastly, media outlets should also fulfill their responsibility of making people aware of the facts and should evaluate each and every piece of information before circulating it.

Approved & Published – Sakshi Raje

Categories
Editorial

An overview of adoption laws in India

Abstract

Adoption is a legal process that creates a parent child relation between persons not related by blood. An adopted child is entitled to all privileges as similar to natural-born child. Adoptive child also has right to inherit. It is usually referred to as the legal process of becoming non-biological parent. Adoption is the act of accepting with approval. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end.

This article will identify the concept of adoption, evolution of adoption in ancient time and in 19th century, child adoption laws in India – Acts, enactments, ruling and decisions, and adoption under different religions in India.

This paper will mainly emphasis on the laws of adoption under Hindu law. It will also emphasis on the Hindu Adoption and Maintenance Act, 1956, Guardianship and Wards Act, 1980, and Juvenile Justice (care and protection of children) Act, 2000.

Introduction 

Children are considered as a country’s future. Many children are abandoned in orphanages and many of them face severe exploitation. In some cases, children become victims of human trafficking and sexual harassment. Whereas, as a fortunate cases some abandoned children are taken in the process of adoption. Adoption process is simply a process of giving new life to an adoptive child. It is a noble cause which brings happiness in the adoptive child’s life.

“Every child has a right to have a family” and there is no better measure for parentless and homeless children than adoption. Adoption in India is carried out under different Acts. In India, adoption of children by Hindu adoptive parents is governed by the Hindu Adoption and Maintenance Act, 1956. This legislation was enacted to provide all the rights, privileges and responsibilities that are attached to the relationship of the adopted children similar to biological child.[1] Manu defines an adoptive son as follows- “a son equal in caste and affectionately disposed whom his mother or father (or both) give with water at the time of calamity, is called Dattrima son”.[2]

According to the earlier mode of adoption only son can be adopted. Hindu mythology believes that only son could be adopted for the continuation of family lineage and for the performance of one’s funeral rites. Even in Dharmasastras only son is qualified for an adoption. Traditionally a child was adopted for spiritual and temporal purpose and now adoption is also done to satisfy the emotional and parental instinct of adopters.[3] Whereas, according to new laws of adoption in Hindu law a girl child can also be adopted. Under Hindu Adoption and Maintenance Act, 1956 a daughter can also be adopted whereas as she can neither offer funeral cake nor can perform last rites of deceased. A child of a different caste may be adopted. A person may adopt a child with whose mother’s marriage is not lawful.[4]

There were some ceremonies which were required to performed at the time of adoption in earlier era and that ceremonies were Datta Homam and the physical act of giving and receiving with intent to transfer the boy from one family to another. Datta Homam is the process of sacrifice of burning of the clarified butter, which is offered as a sacrifice to fire by way of religious propitiation or oblation.[5] According to Madras and Bombay High Courts this ceremony was essential but according to the judgment given by Allahabad High Court Datta Homam was not necessary among Brahmins.[6] Though, this practice of datta homam is, under the present Act, not essential for an adoption made by any class of Hindus, Jains, Buddhists and Sikhs. Adoption laws of Hindu law deal under Hindu Adoption and Maintenance Act, 1956, and Guardianship and Wards Act, 1980. According to certain provisions of Juvenile justice (care and protection of children) Act, 2015, child welfare committee can legally declare an orphan, abandoned and surrendered child free for adoption and this Act also allows children up to the age of 18 to be adopted.  This article will deal with detailed explanation of these three all acts.

Meaning of Adoption 

The word adoption is derived from the old French word Adoptare which means to choose for oneself. Adoption is the legal process of giving and taking of child to non biological parent. It is a process that creates a parent child relation between persons not related by blood. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end.

Adoption established ties of the son with his old family are severed and he is taken being born in the new family, acquiring rights, duties and status in the new family. It is simply a transplantation of a son from the family where he was born, to another family where he is given by the natural parents by way of gift. The adopted son is acquires rights, duties and status in the new family where he was given by his natural family, and his tie with same family comes to an end. [7]

Earlier concept of adoption is very much different from the early texts regarding adoption. For example Manu further stated that ‘An adopted son shall never take family name and the estate of his natural father- the funeral cakes follows the family and the estate- the funeral offering of him who gives the son in adoption cease as far as that son is concerned’. Whereas, the new concept of adoption mentioned under Hindu adoption and maintenance Act, 1956, is different from the old one. It stated that adopted child is entitled to all rights and duties in his new non biological family as similar to natural child of that family. According to the new law for the child given in adoption, there is a complete substitution of child from the family of birth to the adopter’s family. All such rights and privileges to which he or she is entitled in the family of his or her birth cease to exist on being given into adoption and such rights and privileges accrue to him or her in the adopter’s family. He or she is deemed to be born in the adopter’s family on the date of his or her being actually taken into adoption and the adoptive father or mother is treated as real father or mother.

No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status, and return to his/her natural family”.[8]

Certain people are capable of adopting a child and some are not capable of doing so. Both male and female can adopt a child but there should be of certain age difference between the child and adopted father or mother. If the adoption is by a male and the person to be adopted is a female, the adopted parent is at least twenty one year older than the person to be adopted. And if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty one years older than the person to be adopted. Another important point regarding adoption is that same child may not be adopted simultaneously by two or more persons.[9]

Adoption laws in Ancient Times

In the ancient time, Hindu law mainly recognised five kinds of adopted son, but they were reduced only to two namely, the Dattaka and the Kritrima. The Dattaka form is prevalent throughout India whereas the Kritrima form is used in Mithila and the adjoining states. The Dattaka Mimansa and Dattaka Chandrika are two treaties on adoption in early laws, which have come to be regarded as authority. Where they differed with each other the latter was accepted as an authority in Bengal[10] and Madras[11], while the former was respected in other schools. According to P.N. Sen, “adoption had two aspects, in its secular aspect, it consisted of gift and acceptance which could only result in transferring the boy from the parental dominion of the donor to that of the done; but in so far as adoption was supposed to establish a certain non sensuous religious relation carrying with its certain religious juristic consequences, it could only be reached by the due performance of the religious ceremonies prescribed”.

The whole ancient textual law of adoption evolved from a few texts and metaphor. The metaphor is that of Saunaka and texts are those of Manu, Vashistha, Baudhayana and Sekala.

There is a list of certain texts, which are as follows:

Text of Manu– This text implies that the father and mother only can give in adoption, the done must be in distress of not having a son and the boy must be of the same caste.

Text of Vashistha– Vashistha says that 1. Man formed of uterine blood and virile seed proceeds from his mother and his father as an effect from its cause. 2. Therefore the father and mother and have power to give to sell and to abandon their sons. 3. But let him not give or receive in adoption an only son. 4. For he must remain to continue the line of the ancestors. 5. Let a woman neither give nor receive a son except with her husband’s permission. 6. He who desires to adopt a son, shall assemble his kinsmen, announce his attention to the king, make burnt offerings in the middle of the house, reciting the Vyahrites and take as a son, not a remote kinsman, just the nearest among his relatives.

Text of Baudhayana–  this text is of the same effect as that of Vashistha.

Text of Sekala– Let one of a regenerate tribe destitute of male issue on the account adopt a boy as a son as the offspring of a Sapinda relation particularly; or also next to him one born in the same general family. If such is not, let him adopt one born in another family, except a daughter’s son and sister’s son and the son of the mother’s sister.

Saunaka’s Metaphor– Saunaka says that the boy to be adopted must be one bearing the reflection of a son. The phrase ‘bearing the reflection of a son’ has been taken to mean ‘the capability of being begotten by the adopter through niyoga or appointment or the like.’ The metaphor of Saunaka implies that one should be adopted whose mother, when maiden, might have been legally married with the adoptive father.

Under the ancient law, only the father and mother of a boy were competent to give him in adoption. The concurrence of both was considered to be desirable.

Before the commencement of Hindu Adoption and Maintenance Act, 1956, there were certain points for valid adoption, which are as follows-

1) The adopted person must be Hindu.

2) He must be male.

3) Nearest male sapinda was to be selected for adoption. If no such near sapinda was available then one who was less remote would selectee for adoption process.

4) Adopted son must be of same case of his adoptive father. Adoption of a person from a sub caste of the same primary caste was valid.[12]

5) The adopted person must not be deaf and dumb.[13]

6) An orphan child could not be adopted.

7) There was prohibition to adopt an eldest son was based on the analogy that the eldest son chiefly fulfilled the office of a son.

8) A person cannot give a son in adoption more than one time.

9) Illegitimate son could not be validly adopted. Even in Shudras, illegitimate son could not be adopted.

10) Two persons could not adopt the same boy. This would consider as illegal adoption.

Although, under pure Hindu law there were performances of ceremonies for adoption, Datta Homam was one of the most important ceremonies, which means that it is the sacrifice of the burning of clarified butter, which is offered as a sacrifice to fire by way of religious propitiation or oblation.[14] Datta Homam could be performed at any time after the physical act of giving and taking. The practice of Datta Homam was not essential in the case of adoption in the twice born classes when the adopted son belongs to the same gotra as to the adoptive father. Thus, this practice of Datta Homam is not essential in present laws of adoption.

Evolution of Adoption in 19th Century 

During the era of late British India if a man had a son, grandson, or great grandson, whether natural or adopted, he was precluded from adoption. Similarly, simultaneous adoption continued to be invalid.[15] In Jamoona v. Bamasoondri, [16] the Privy Council looked into the question of adoption by a minor.  Privy Council at that time noticed that a person who is a minor under the Indian Majority Act, 1875 can adopt or authorise his widow to adopt when he has attained the age of discretion. The age of majority according to the Dayabhaga school was fifteen years and according to Mitakshara school the age of majority was sixteen years. The court observed that the age of discretion was not certainly fixed earlier.

The primary right of giving a child in adoption was vested under the hand of father. He can do so even without the consent of his wife. Mother is incompetent to give her illegitimate child in adoption. [17]

In Kashishri Devia v. Greesh Chander,[18] where the wife so selected was the second wife of the adopted and the adoptive, mother died before the adopted son, it was held that on his death the eldest widow was not his heir as mother, being only a step-mother and the succession went to a nephew of the husband.

A Hindu father who converted his religion and become non Hindu, he did not lose his right of giving his Hindu son in adoption but since the physical act of giving was coupled with religious ceremonies, that act had to be delegated to a Hindu person. [19]

In relation to the rights of adopted child in the property matters, he has right to reopen the partition after his father’s death.  In Shakan Lingan Pillai v. Pilla[20] the Court held that the adopted son is entitled to reopen a partition made after the death of his adoptive father by the member of the family and he could claim his share in the family property.

All the laws of adoption in late British era were regulated by Privy Council. Major changes introduced after the end of British era and also includes the change in the role of parliamentary laws were introduced. Hence, the Hindu code bill was introduced for matters related to Hindu laws. Adoption laws were also dealt under the same code. It provided little bit different laws of adoption which are mentioned below in brief.

During post independence era or in 19th century Hindu code bill was the most efficient piece of legislation covering all the major branches of Hindu law. Law relating to adoption were discussed under some part parts of Hindu code bill. The proposal in Hindu code bill with regard to adoption excludes the daughter from being taken in adoption. The only requirements which mentioned under Hindu code bill for adoption was that the child should male, he should be unmarried and he should be under the age of 15 years. Also, he should not have been adopted before. This bill does not prevent illegitimate child for being given in adoption. The parents who are giving their child in adoption must be sound mind person and must have attained 18 years of age. Another important point is that if the father of the child is dead, or he renounced the world or he ceased to be Hindu then mother of the child can give him in adoption even without father’s consent. The code provided that the man or his widow can’t take a child in adoption if son, grandson and great grandson are alive. The adoptive father must attain the age of majority and he should be sound mind. Thus, the code clearly simplifies the problem of the age or competence about adoption or we can say that the code clearly mentions the qualifications and disqualifications of adoption. The code did not mention any thing about contrary religious adoption. Code provided that the adoption must be completed by actual giving and taking of the child and there was no specific law prescribed for the registration of adoption, it is up to the choice of the party. The adoption of orphan was not particularly mentioned under the code.  In ancient times practice of Datta Homam was essential requirement of adoption but in 19th century it no longer an essential one.

If the bachelor adopts a child and any girl married him after the adoption, she will be the mother of the adopted child. And several widows adopted a child; the senior most widow will be the adoptive mother. All the rights of the natural born child will be provided to adopted child. Adoption can only be possible if the adoptive father or mother does not have any son, grandson, and great grandson. If the principles of adoption are against the provisions of Hindu code bill, it would be considered as void. If there is any presence of misrepresentation, fraud or undue influence in the procedure of adoption then the suit may be filed against the accused.

Hindu code bill split into four fragments which have now become the acts of parliament. The Hindu Adoption and Maintenance Act 1956, which deal with the laws of adoption and maintenance, is one of the four fragments. The Guardian and Wards Act, 1890, explained the rules of becoming guardian of a minor child. Statutes of guardianship and wards Act does not specifically deal with adoption laws but it deal with the guardianship process of the minor. It contains codified laws of guardianship. Succession rights of the adopted child deal with Indian succession Act, 1956 and Juvenile Justice Act, 2000 deals with the law of care and protection of abandoned and neglected child. Institutional care of the destitute and orphan children appears to be the largest service of for the care. This Act mainly focuses on the care of juvenile.

Child Adoption Laws in India under different Act 

There were different practices and customs performed in adoption in ancient times but the practice of adoption remain the same. Though the objectives of the early Acts and new Acts of adoption differed from each other but the main gist of adoption is not different in these acts. Actual giving and taking of child remain the same from the ancient times. Mainly the adoption process is for taking care of neglected and destitute child.

The process of adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews in India. That’s why; they usually opt for guardianship of a child through the Guardians and Wards Act, 1890. Citizens having Hindus, Jains, Sikhs, or Buddhists religion are allowed to formally adopt a child. The adoption is under the rules of Hindu Adoption and Maintenance Act of 1956 that was enacted in India as a part of the Hindu Code Bills.

Concept of adoption under the present Hindu law does not provide for the performance of any religious ceremonies at the time of adoption. It prescribes only actual giving and taking of child. Hence, this Act shows the secular nature of adoption process.

Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act, 1956, has now codified the law and modified the law of adoption. The changes incorporated under this Act in regard to the adoption laws demands progressive sections for the Hindu society. The Act received the assent of president on 21st December, 1956. In the Act no date has been fixed for its enforcement. So under section 5 of the General Clause Act, 1894, it shall be deemed to have come into force on the said date, i.e., 21st December, 1956. This Act extends to whole India except Jammu and Kashmir.

Adoption of child by adult Hindu person is governed under the Hindu Adoption and Maintenance Act, 1956. This Act provides the procedure for maintenance and all the rights, privileges and responsibilities which attached with the relationship of adopted child and adoptive father. This Act only governs Hindus (including Buddhists, Jains and Sikhs). Provisions of this Act mandate that Hindu married couple or unmarried adults can only adopt a Hindu child either daughter or son. Main objectives of adoption are person will get old age protection by adopted child, he will perpetuate family name and fame, family property will also secured and importantly childless parents will get a person who will perform their death rites.

There are certain provisions which are specifically deal with new provisions of adoption which are as follows:-

Requisites of valid adoption

 Section 6 of The Hindu Adoption and Maintenance Act, 1956 deal with it, these requisites are-

1) Adoptive father and mother must have the capacity and right to do so.

2) Person who is giving a child in adoption must have the capacity to do so.

3) Person who is giving in adoption must capable for being taken in adoption.

Capacity of male to take in adoption

Section 7 of The Hindu Adoption and Maintenance Act, 1956 deal with it, he must be of sound mind and must have attained the age of majority. If wife of a person is alive then he should not adopt a child without the consent of his wife, unless she completely and finally renounced the world or she ceased to be Hindu or competent court declared her incompetent. If a person has more than one wife, he should take consent of all wives. 

Capacity of female to take in adoption

Section 8 of The Hindu Adoption and Maintenance Act, 1956 deal with it, she must be of sound mind and must have attained the age of majority. If her husband is alive then she should not adopt a child without the consent of her husband, unless he completely and finally renounced the world or he ceased to be Hindu or competent court declared him incompetent. Section 8 also recognizes the right of widow to adopt a son or a daughter for her. The result of this is that for all purposes the adoptee in effect becomes the son or daughter not only of the widow but of her deceased husband as well.[21]

Who may give in adoption?

Section 9 of The Hindu Adoption and Maintenance Act, 1956 deals with it, person is capable of giving in adoption- No person other than the mother and father of child could have the capacity to give a child in adoption. Both of them have equal rights to give a child in adoption. If both father and mother died, or completely renounced the world or competent court declared them as unsound, the guardian of the child shall have the right to give a child in adoption.

Before granting permission to guardian of the child for adoption court first checks the welfare of the child. The primary consideration for giving a child in adoption is child’s care.

Though, the term father and mother do not include adoptive father and an adoptive mother. And guardian means the person who takes care of child and his property too.

Who may be adopted?

Section 10 of The Hindu Adoption and Maintenance Act, 1956 dealz with it, for valid adoption child should be Hindu by religion. He or she must not have been adopted earlier. He or she should be unmarried, unless there is a custom or usage which permits a person to be married. He or she should not have completed the age of 15 years unless there is any custom or usage which permits a child to do so.

Age difference

If an adoption is by a male and adopted child is female, the adoptive father is at least twenty one year older than the child. And if the adoption is by a female and adopted child is male, the adoptive mother is at least twenty one year older than the child.

Thus, above mentioned are main provisions for valid adoption mentioned under Hindu Adoption and Maintenance Act, 1956. Other provision such as the ceremony of Datta Homam is not essential (section 11), adoptive father or mother shall not be deprived of their power to transfer the property merely by reason of adoption of a child (section 13), etc. are also important.

Guardianship and Wards Act, 1890

As per the name suggest the Hindu Adoption and Maintenance Act was mostly applicable for the Hindu society. The Guardianship and Wards Act, 1980 is applicable to Christian, Jews, Parsis and Muslims because their personal law do not recognize the concept of adoption.[22] Under The Guardianship and Wards Act, 1980, the only relation established after adoption is guardian and wards respectively. Under this Act, if the child attain the age of twenty one years then he shall not remain a ward, he become an independent person. Child does not have automatic right of inheritance. Adoptive parents have to leave bequeaths as according to their wish which will be contested by the any ‘blood’ related child. The enactments or provisions of this Act remain silent on the adoption of orphan, abandoned, and surrendered child. There are no codified provisions under this Act for adoption. As a result of this several irregularities and misconceptions appeared in respect of the custody guardianship and adoption of these kinds of children, which re prejudicial to the interest of the children.  In the Hindu Adoption and Maintenance Act, 1956, a person adopted has a single set of parents, here a minor and his property could have more than one guardian. Court appoint guardian by using its discretionary power and mainly considered the minors interest. The minor’s preference is also being taken into consideration.

The Juvenile Justice (Care and Protection of Children) Act, 2000

This Act provide legal definition of child and it will follows under all legal aspects child is a person who has not completed eighteen years of age.
This Act is applicable to all Indian citizens. Children of same sex can be adopted under the provisions of this Act. This Act confers status between adopted child and adoptive parents as parent and child and not as a guardian and ward. This Act was designed for the care, protection and development of juvenile in conflict of law and child in need of care and protection.

The main aim of adoption is to provide a child permanent substitute family, who can’t be cared for by his biological parents with. The adoptive family of a child has responsibility to provide him care and protection. Child, who is abandoned, surrendered or orphan can be adopted for his/her rehabilitation through such mechanism as prescribed under the Act. For adoption of abandoned, surrendered or orphan children, certain guidelines shall be followed; the state government shall establish specialized adoption agencies in each district.

Under section 41 of the Act, the guidelines issued by Central adoption resource authority (CARA) and notifies by central government, shall apply to all matters of adoption. The Children’s institutions and homes established by state government or voluntary organizations for children in need of care and protection who are orphan, abandoned or surrendered, should ensure that these children are declared completely free for adoption by the Committee (Child Welfare Committee).

  • No child shall be offered or given for adoption unless these conditions fulfilled:-
  • If a child is abandoned, the two members of the committee must declare child legally for placement in adoption.
  • If a child is surrendered one, the period of two month for reconsideration by parents is lapsed.
  • If a child who understand and express his consent, his consent shall be taken for adoption.
  • Parents who are adopting a child must be childless couple.

Indian Constitution

Constitution of India tried hard to provide every right to child with regard to his care and protection. The constitution of India not specifically deal with the provisions of adoption but it deal with the provisions having children care and protection. It also deals with the provisions of education of children and with provisions against exploitation.

Chapter 3 of Indian Constitution provides fundamental rights to every citizen of India. Article 21 of Indian constitution provides a right to every citizen to live with dignity. It also provides a right to every child to live with dignity.

Article 24 of Indian constitution provides a right against exploitation for the children of below 14 years of age.

Article 39 on Indian constitution refers that state shall make policy with regard to the welfare of the child. These policies will give them a sense of equality and protection. Youth are protected against the exploitation and force labour.

Article 44 of Indian constitution dealt with Uniform Civil Code. It will not infringe the person’s fundamental right of religion. India being party to CRC (Convention on the Rights of a Child), such uniformity is necessary for the rights of adoptive children can well be enhanced and protected. If a Uniform Civil Code is established under the provisions of law, like the Hindu women, the women of other religions will also be allowed to adopt. With the enactment of a Uniform Civil Code, the status of Indian women will definitely increase or become better in all aspects of social life. Uniform civil code is still needed in India. In today’s time it is only followed in Goa. A secular India definitely needs a uniform civil code in the country.

Article 45 of Indian constitution deals with the provision where state shall provide early childhood education and care to all children until they complete the age of six years. [23]

Role of Central adoption resource authority (CARA) in adoption:-

CARA is a statutory and autonomous body of Ministry of Women and Child Development in the Government of India. It is a nodal body for adoption. It controls and monitors the adoption process in India. It primarily deals with the adoption of surrendered, orphan and abandoned children. It is a central authority to deal with the inter country adoption.

Adoption among different religions in India 

Every religion has its own laws regarding adoption. There is no uniform law of adoption. Though adoption is the legal process of actual giving and taking of a child, it also forms the subject matter of personal laws. Thus, Muslims, Christians, and Parsis do not have their adoption laws, they approach to the court under The Guardians and Wards Act, 1890. They can take the child under the provisions of the said Act. When child grew up and attain age of majority, he would not under the obligation of the adoption law at all. And this child also does not have right of inheritance over the property of guardians.

Under the laws of The Guardians and Wards Act, 1890, a foreigner can also adopt a child. If the guardian wants to take the child to outside the country, he shall take the court’s permission and that process will govern under the adoption process in foreign law. Hindu law, Muslim law and The Guardians and Wards Act, 1890, are containing three different provisions of adoption.

Adoption under Hindu Law

Ancient Hindu law as well as present Hindu law system contains the provision regarding the adoption.  In Ancient time adoption laws were prevail under different texts that may be Manusmiriti, Vashistha , Sekala etc. and in present system of Hindu law adoption laws mainly deal under The Hindu Adoption and Maintenance Act, 1956, this contains codified laws of adoption.  It was and it is mentioned under the Hindu laws that adopted child will act as natural born child. Every right as similar to natural born child will be presented to adopted child also. He will also get the right of inheritance over the property of his adoptive father.

In early adoption laws person could not adopt a female child but after the commencement of The Hindu Adoption and Maintenance Act, 1956 female child also included under the same. She will get all rights as similar to the rights of adopted son. Adopted child not only create a relation between child and parents, even it creates a new family for an adopted child.

This Act contains capacity of person to adopt a child and requisites which the child should fulfill for being given in adoption. All the important aspects regarding the procedure of adoption of a child mentioned under the same Act. Adoption under Hindu law includes Budhists, Jains, Sikhs and Hindu religion.

Adoption under Muslim law

Muslim law does not prescribe any specific law for adoption. Concept of guardianship governed under The Guardians and Wards Act, 1890. Holy book of Islam i.e., mentioned that restoration of the orphans when they come of age, their substance do not substitute bad for good nor devour their substance by adding it to your own, for this is an enormous crime.

Thus, Muslim law does not contain any provisions regarding adoption. A Muslim person can take a child only as its guardian, after attaining the age of majority child would not bound under the conditions of guardian and wards. Court appoint guardian, and the main consideration of the court is child’s welfare. Guardian is a person who having the care of the person of a minor or of his property, or of both.

In case of Muhammad Allahdad Khan v. Muhammad Ismail,[24] court held that there is nothing in the Muslim law as similar to adoption as recognised in Hindu and roman system. The Muslim law does not recognise adoption as a filiation. In 1972, the adoption of children bill was introduced in the parliament in order to make a uniform law of adoption applicable to all citizens of India regardless of their religion. However, the bill was withdrawn by the government in 1978 and could not be passed.

Adoption under Christian and Parsi Religion

The laws of Christian and Parsi religion do not recognise the provisions of adoption. A person who belongs to these religions can adopt a child from orphanage with the permission of court under The Guardians and Wards Act, 1890. A Christian person has no adoption law. Although, adoption is a legal process of taking a child, it forms the subject matter of personal laws. Christian and Parsis both don’t have adoption laws and they have approach to court under The Guardians and Wards Act, 1890. National commissions on women and child care stressed on the need of uniform adoption laws.

Christian and Parsi both can take a child under a said act only for foster care. When child grew up or become a major person, he can break all the connections between him and guardian. He will not have any right of inheritance.

It is clearly mentioned under the act that father’s right over the child is primary one unless the court finds him incompetent. The Act of guardians and wards provides that court must take into consideration the welfare of the child. The guardian is mainly appointed for the welfare and care of the child. [25]

Conclusion 

Children are the supreme assets for nation building. Their upbringing is the responsibility of nation, whether the child is abandoned, neglected, or surrendered, and every single child should get proper facility of living. Every child should have right to be given in adoption.

The adoption laws for Hindus changes enormously. Position of girl as well as woman changed with the passage of time. The adoption laws grew as per the need of the changing society. It is unreasonable fact that Muslim, Christian and Parsi people cannot adopt a child because of absence of uniform civil code. When uniform civil code implemented in the country then religion other than Sikh, Buddhists, Jain, and Hindu religion, will also get a right to adopt a child. Uniform civil code will also improve the life of child and the child less parent. A child will get a new family. A child will get proper education, care and food facilities too. Overall life of child will improve. As we all know that uniform civil code is very difficult criteria of law but if it is enacted it will bring so much happiness to childless parents and parentless child. It will definitely create a new life by way of adoption for a child.

None of the religion other than the Hindu religion has their laws for adoption. Adoption is mainly for a noble cause. It brings happiness for an adopted child as well as for the adoptive father and mother. It is legal process of creating a good relationship between a child and adoptive parents. It is a program where child is treated as natural born child. He/she will get every right as similar to natural born child. There is no difference between natural born child and adopted child. Important part of adoption is that the child could not renounce the adoption. Whereas, The Guardian and Wards Act, 1980, child has right to renounce the guardianship procedure after attaining the age of majority. The procedure of adoption under Hindu law is governed under the Act of The Hindu Adoption and Maintenance Act, 1956.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1] Deepak kumar verma, Hindu adoption laws and interpretation by different High Court, National Judicial Academy, Bhopal, (June, 04, 2019, 11:45am), http://www.nja.nic.in/

[2] RK Agrawal, Hindu law,176,(central law agency,25th ed. 2016)

[3] Neeraj Meena, Adoption laws in India: challenging Existing Law, Manupatra  (June, 7,2019, 10:14 am), http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf

[4] Supra note 2

[5] Bal gangadghar tilak v. Sri niwas pandit , 42  IA 135

[6] Atma rao v. Madho rao , 6 All. 176 (FB)

[7] Supra note 1 at 177

[8] Supra note 1 at 207

[9]  Section 11, Hindu Adoption and Maintenance Act, no. 78, acts of parliament, 1956 (India).

[10] Asila v. Nirode, 20 CWN 901

[11] Arumitti perazee v. Subbarayadu,  44 Mad. 655

[12] Shib deo v. Ram Prasad,  (1924) 46 All. 637

[13] Surendra nath v. Bhola nath,  (1941) 1 Cal. 139

[14] Bal gangadghar tilak v. Sri niwas pandit, 42 IA 135

[15] Rungamma Vs. Atchamana, (1846) 4 M.I.A. p. 1

[16] (1876) 3 lA 72.

[17] Trikanganda MaUanauda Vs. Shivappa PatU, (1943) ILR.Bom.706

[18] (1964) WR 71.

[19] Shamsher Singh Vs. Santabai, (1901) 25 ILR Bom 351

[20] (1943) ILR Mad. 3(1)9

[21] Abhaya kumar v. Sarda dai, AIR 1995 Ori. 212

[22]  Supra note 3

[23] Supra note 3

[24] ILR (1888) 12 ALL 289

[25]  Romit Agrawal, Adoption: Under Hindu, Muslim, Christian and Parsi Laws, Legal service India (June, 10, 2019), http://www.legalserviceindia.com/articles/hmcp_adopt.htm

Categories
Editorial

Perspectives on Environmental Law & Policy

Abstract

The law which governs environment-related issues is “The Environment (Protection) Act, 1986”. This Act is for the protection and improvement of an environment by taking care of the living creatures who are residing in it i.e. human beings, plants and animals. This law came into existence after India’s participation in the United Nations Conference on the Human Environment in 1972 for the protection and improvement of the environment. An Environment includes land, water, air, animals and humans where all are inter-related and dependent on each other for their survival and even if one suffers due to pollution or misuse of the resources, all the rest will suffer in the ecosystem. Every element of the ecosystem has its own importance and in order to monitor its improvement and prevent the overuse or misuse of the resources, the lawmakers of our country came up with this law for the proper utilization of the available resources.

This article will look into the positive aspects of the environment law that are implemented by the judiciary from further exploitation of resources and also by taking into account the current environmental health condition. The initiatives and policies which are made by the government for further protection from the domestic, industrial and commercial exploitation of the environmental resources and for the purpose of the improvement in the quality of life. It will also look into the hazardous activities which took place within the boundary of the country and what important role citizens play in its protection.

Introduction

Environment protection is not today’s issue, but it has been a concern since the Vedic times. Back then trees, rivers, mountains, animals and land were worshipped as the customary norms in every sect of the society. It was believed that these elements of biodiversity are Gods themselves and if anyone harms them was amounted for punishment[1]. But during the Aryan civilization, deforestation[2] was done for human settlement and for producing crops which ultimately led to climatic change. However, during the reign of ruler Ashoka the conservation of wildlife and the clean environment was emphasized[3]. He banned the hunting of animals and several herbal and medicinal plantations were done. Trees[4] like peepal, banyan, Ashoka, bel, mango, neem, banana, coconut, etc. were worshipped and are still worshipped during any auspicious event as per the Hindu religion and all these trees are dedicated to respective Gods. In ancient India, there were not only trees  but also rivers that were worshipped and are still considered as holy rivers[5] such as Ganga, Yamuna, Saraswati, Godavari, Narmada, Kaveri and Sindu ( now in Pakistan); there are animals like cow, tiger, elephant, bull, snake birds like peacock, swan, etc. that are still considered as sacred. There are mountains that are too considered as the adobe of God such as mount Kailash, Vaishno Devi, Haridwar, Hrishikesh, Badrinath, Kedarnath, Vyenkata Hill, etc. but sooner the exploitation of these natural resources started taking place for the purpose of mining, agriculture, settlement, commercial purposes, etc. which ultimately lead to scarcity of clean water, extinction -of birds and animals, flood, extreme exposure to sun, health and other issues.

In 1976 article 48A was inserted by the 42ndamendment Act[6] in Part-4A of our Indian Constitution as our fundamental duty “to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures[7]”. In the 7th schedule[8] list 3 of concurrent list, the entries for water storage, regulation of mines, agriculture-related education and protection of plants from pests, fisheries, protection of animals, etc. are given which gives the power to both central and state government to implement laws in this respect. The birds were the first to get protection under the Wild Birds Protection Act, 1887. With the enactment of this Act, it prohibited the possession or sale of only certain kinds of a wild bird during the breeding season. In 1935 the Act was amended allowing the provincial government to declare any area to be a sanctuary for the birds or animals, and their killings were made unlawful[9]. Further, there were more Acts enacted by the government for proper utilization and protection of resources like Easement Act 1882, Indian Fisheries Act 1897, Factories Act 1987, River Boards Act 1956, Merchant Shipping Act 1970, Wildlife Protection Act 1972, Water Act 1974 and many more enactments were done to look after the different available resources, to give guidelines to central government, state government, municipal bodies and corporation regarding the proper utilization  these resources in sustainable manner so that overutilization of the resources cannot be done and also gives strict provision for those who do not comply with these rules and regulation set by the jurisdiction of our country.

Legislation Regarding Environment Protection

For the protection of the environment from exploitation, the laws with rules and regulations were passed and also amended according to the requirement. The environment comprises air, water, land, and biodiversity i.e. animals, flora, and fauna. Due to a lack of awareness, the misuse of environmental resources was done without taking future generations into consideration. The other reason was also for developmental reasons. After taking into account the existing situation these laws implemented as every citizen has the Right to life under Article 21 of the constitution. These legislations are as follows:

  • The Water (Prevention and Control of Pollution) Act, 1974, amended 1988
  • The Water (Prevention and Control of Pollution) Cess Act, 1977, amended 1992 and 2003
  • The Air (Prevention and Control of Pollution) Act 1981, amended 1987
  • The Wildlife (Protection) Act, 1972, amended 1993, 2002 and 2006
  • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
  • Forest (Conservation) Act, 1980, amended 1988
  • Forest (Conservation) Act, 1980, amended 1988
  • Biological Diversity Act, 2002
  • National Green Tribunal Act, 2010 (No. 19 of 2010)
  • The Prevention of Cruelty to Animals Act, 1960

The implementation of these laws helped in the betterment of the environment’s health. It gave guidelines for the use of the resources that were once exploited due to a lack of importance in the ecological system. We know the importance of forest in our environment as trees give us oxygen which is necessary for our survival, it is required during monsoon season as trees are the good observant of water and maintain the fertility of the soil. It also keeps the temperature in control and also controls air and noise pollution. Forests are the shelter of different kind of wildlife animals and also give protection to the tribal population. The importance of trees was observed in Rural Litigation and Entitlement Kendra vs. the State of UP[10]. The trees were cut down for human settlement, agriculture or industrial purposes which ultimately lead to climate change, irregular monsoon, flood, drought etc. as were not aware of the consequences. In recent years there was almost half of India that gets submerged during monsoon season because of poor management and proper utilization of the resources by the state government for developmental reasons.

However, in Banwasi Seva Ashram vs The State of UP observed that forests are much wanted national asset and disturbing it has resulted in depletion of an economy. These have long term adverse effects on the national economy. At the same time, we cannot lose sight of the fact that for industrial growth and for the provision of improved facilities there is a great demand in this country for energy such as electricity…[11]. The court gave equal importance to the right of forest dwellers by giving responsibility to NTPC to find an alternative plot, render restriction and subsistence allowance, give free transportation, reserve jobs and provide facilities of road, water supply, health care, and electricity[12].

Under the Indian Forest Act, 1927 there were reserve forests and protected forests. The state government could constitute any forest land or wasteland by notification as reserved forest and then state government would get regulatory right over it. They become entitled to own the whole or any part of the forest produce. The activities in these forests were regulated and any person indulging in prohibited acts such as setting fire to the forest, hunting, trespassing, quarrying, fishing and setting traps were liable to be prosecuted. A protected forest[13] is not a reserved forest but state government can again by notification declare to reserve trees, close any portion of such forests against the right of a private person, prohibit stone quarrying, burning of lime and prevent removal of forest produce or clearing for cultivation. Therefore, the power to regulate forest was vested on state government[14].The impact of the forest Act had a devastating effect on the ecological balance, the forest was seen as a source of revenue not as a factor of maintaining ecological balance[15].There is a need for development but not for the sake of human existence. The development must go hand in hand with the proper estimation of the needs of present and future generations. Soon Forest Conservation Act 1980 was enacted after the extensive destruction in ecological balance was made. These law therefore came into existence because there was exploitation of the resources in extreme which also has resulted in extinction of few animals, as for their survival the temperature they require was not appropriate or due to poaching, for example, northern white rhinoceros, Spix Macaw, thylacine, passenger pigeon, Quagga, Pyrenean Ibex, golden toad, etc.

But there are few animals who are on the verge of extinction so those governments started projects like project tiger, project elephant and also opened reserves for birds and animals which drastically changed their pollution. Project tiger and project elephant were started with the help of an World Wide Fund for Nature (WWF) and the International Union for Conservation of Nature and Natural Resources (IUCN). In 1973 nine tiger reserves were open and now there are 45 reserves over all the country. The action was taken by High Court Delhi when in 1971 Tiger Task Force predicted that by the end of the 19th- century tiger would be extinct and banned the hunting of tiger in India[16]. During that time the population of tigers drastically increased but by 1993 again there was a fall in pollution of the tiger and it was called “the second tiger crisis” this happened due to poaching for traditional Chinese medicine[17]. This fall was because it was poor state government attention towards the fund which was allocated for their care but it was negligently used for other purposes. In 2011 again the increase in the population of tigers was estimated. The goal of accomplishing the increase in pollution growth will only be achieved when the state government and forest officials get serious about it.

Project Elephant was started in 1992 with the aim of protecting the dwindling species of elephants. These are given protection against poachers and also against the unnatural cause of deaths[18]. Relocation of the population outside the national park and sanctuaries, restoration of migration corridors for elephants, erecting of electric fences along forest borders to safeguard against human-elephant conflict and strengthening anti-poaching infrastructure in the states, are the wide parameters of ‘project elephant’[19].

Landmark Judgments

MC Mehta and Anr. Etc vs Union of India[20] case is also known as Oleum Leakage Case. The Court held that the permission for carrying out any hazardous industry very close to human habitation could not be given and the industry was relocated. This case, however, paved the way for Factory Act, 1948.

TN Godavarman Tirumulpad vs. Union of India[21] case the court proceeded towards the constitution of a committee to oversee the strict and faithful implementation of its order. They were asked to constitute an expert committee for identification of forest, a complete ban was imposed on felling of a tree in the tropical wet evergreen forest in Arunachal Pradesh and Supreme Court also asked for measures such as relocation of industries, identification of ecologically sensitive areas and an institution of state-level committee to evolve licensing regulations. Hence CAMPA was setup by the apex court.

In M.C. Mehta vs. Union of India[22] case activist advocate M.C. Mehta filed a writ petition for pollution in Ganga by hazardous industries discharge. In this judgment, it was observed that when an industry that cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot setup a primary treatment plant cannot be permitted to continue to be in existence.

In M.C. Mehta vs. Union of India (Taj Trapezium Case) [23] TajMahal, was facing threat due to high toxic emissions from Mathura Refineries, Iron Foundries, Glass and other chemical industries. This case in 1996 gave various directions including banning the use of coal and cake and directing the industries to Compressed Natural Gas (CNG).

There are other such landmark judgments that paved the way the people used to treat these natural resources for their benefit and brought a major difference in the society towards its protection. Due to unawareness these resources were over-utilized and misused which has ultimately threatened the future generation’s life. These judgments gave insight and hope to society and made them aware of society and government.

Initiatives by the Government

In the fiscal year of 2019-20, the budget allocation for the Ministry of Environment was increased by 10.4 percent which is also termed as “green budget” by the Prime minister of India with the motive of promoting the electric vehicle, reducing air pollution, and encouraging afforestation[24]. Several initiatives have been undertaken by the government to bring about both, awareness and conservation of the environment and natural resources in the country. Some of the noteworthy projects are as mentioned:

FAME Scheme

The FAME India (Faster Adoption and Manufacturing of (Hybrid &) Electric Vehicles in India) scheme[25], was launched in 2015 with the motive of promoting the manufacturing of electric and hybrid vehicles and for sustainable growth. But in its 1st phase it was launched for 2 years with four the main goals:

  • Demand creation
  • Technology platform
  • Pilot project
  • Charging infrastructure

Based on the result of the 1st phase of FAME, the 2nd phase is implemented for 3 years from FY 2019-20 to FY 2021-22 with the goal[26] of

  • Demand incentives
  • Establishment of a network of charging stations
  • Administration of the scheme including publicity, IEC (Information, Education, and communication) activities.

Under demand incentive, this scheme will cover electric buses, four-wheelers, three-wheelers and two-wheelers. This incentive will be available to vehicles that are used for Public transport and for commercial purposes and those who privately own e2-w can avail this benefit. However, all the vehicles need to be registered under CMVR[27], 1989 for availing reimbursement.

CAMPA fund

Compensatory Afforestation Fund Management and Planning Authority[28] (CAMPA) was established by the Hon’ble Supreme Court of India in 2009 as the National Advisory Council under the chairmanship of the Union Minister of Environment & Forests for monitoring, technical assistance, and evaluation of compensatory afforestation activities. It is meant to promote afforestation and regeneration activities as a way of compensating the forest land converted into non-forest land. The objectives are to:

  • Lay down broad guidelines for State CAMPA.
  • Facilitate scientific, technological and other assistance that may be required by State CAMPA.
  • Make recommendations to State CAMPA based on a review of their plans and programs.
  • Provide a mechanism to State CAMPA to resolve issues of an inter-state or Centre-State character.

State CAMPA would receive all the funds collected from user agencies as compensation under the Forest Conservation Act, 1980 and would utilize it for the purpose of afforestation, assisted natural regeneration, conservation, and protection of forests, infrastructure development, wildlife conservation, and protection and other related activities. In sum, the prima facie task would be to regenerate forest wildlife and building up the institution involved in it i.e. State Forest Department.

LED Bulb Mission

Under UJALA Yojana LED bulbs were distributed in approximately 35cr. households by replacing incandescent bulbs and CFL. This mission would be used to promote the use of solar stoves and battery chargers[29] in the country which will lead to a cleaner environment and sustainable development ultimately.

ICZM Project

  • The coastal zone of India is rich in its biodiversity and it has not received adequate protection as it required. There has been misuse and overuse of the resources. So the government launched the 1st Phase of ICZM (Integrated Coastal Zone Management) Project[30] in 2010 with the assistance of World Bank in the states of Gujarat, Odisha and West Bengal with the following aims:
  • Achieve sustainable development in marine and coastal areas.
  • Reduce vulnerability to natural hazards which have major implications on the coastal areas and coastal communities especially with respect to Sea Level Rise (SLR) and increased frequency of cyclones and storm surges.
  • To conserve and protect the fragile coastal ecosystems such as the mangroves, brackish water wetlands and coral reefs, including addressing the pollution of coastal waters and livelihood improvement of local communities.
  • Strengthen institutional and governance capacity for Integrated and sustainable Coastal Management as per the National Environmental Policy 2006.
  • Capture and disseminate lessons in best practice, both locally and globally.

And with its success, the Finance minister extended it in 13 Coastal States/UTs [31]Maharashtra, Gujarat, Odisha, West Bengal, Andhra Pradesh, Tamil Nadu, Goa, Puducherry, Kerala, Karnataka, Daman and Diu, Andaman and Nicobar Island, Lakshadweep in its 2nd Phase with the respective goals:

  • Conservation of coastal & marine ecological resources.
  • Coastal pollution management and related infrastructure upgrades.
  • Livelihood security and sustainable development of coastal communities.
  • Capacity building & implementation of ICZM Plans.

CPCB

Central Pollution control board (CPCB) is a statutory organization that was constituted in 1974, under Water Pollution Act, 1974 and further, it was entrusted with the power and function under Air Pollution Act, 1981. The functions of CPCB fall under two-levels i.e. national level and state level, under these two levels CPCB has to provide ways to prevent the air and water pollution and improve the quality of air, plan, organize and train the personnel those who are involved in prevention and control of air and water pollution. It also lays down the standard for sewage and trade effluents on land, assesses the quality of ambient water and air, and inspect wastewater treatment installations, air pollution control equipment, industrial plants or manufacturing process to evaluate their performance and to take steps for the prevention, control, and abatement of air and water pollution.

Besides this, CPCB has an automatic monitoring station at ITO Intersection in New Delhi. At this station, Respirable Suspended Particulate Matter (RSPM), Carbon Monoxide (CO), Ozone (O3), Sulphur Dioxide (SO2), Nitrogen Dioxide (NO2) and Suspended Particulate Matter (SPM) are being monitored regularly. This information on Air Quality at ITO is updated every week[32]. And it has also setup 2500 stations in 28 States and 6 Union Territories spread over the country for monitoring the water resources quality[33].

NTCA

National Tiger Conservation Authority (NTCA) is a statutory body of the ministry the performs function under the Wildlife Protection Act, 1972[34]. The government took an initiative in 1972 by launching ‘Project Tiger’ and establishing nine tiger reserves. Due to this, the population of tigers increased which has fallen drastically after independence[35].

Creation of Management Structure for Management Substances Under the scheme, the activities are carried out under three thrust areas namely; chemical safety, chemical accident prevention and sound management of hazardous waste and municipal solid wastes. The activities initiated accordingly, include preparation of offsite emergency plans, setting up of emergency response center, establishment of Common Treatment, Storage and Disposal Facilities (TSDF) for industrial hazardous wastes. Preparation of hazardous analysis reports, etc[36].

Apart from all these schemes, the government has policies for environment protection these are[37];

  • Environment Protection Act, 1986 – it was enacted in 1988 after the Bhopal Gas Tragedy with the objective of providing for the protection and improvement of the environment. It empowers the Central Government to establish authorities under section 3(3) of the Act. It also defines the environment and the rules for the protection of the environment were enacted.
  • National Conservation Strategy and Policy Statement on Environment and Development, 1992– in response to the need for laying down the guidelines that will help to weave environmental considerations into the fabric of our national life and of our development process. It is an expression of our commitment to reorienting policies and actions in unison with the environmental perspective[38].
  • Policy Statement for the Abatement of Pollution, 1992 – lays emphasis on pollution prevention and also identified the adoption of best available and workable technologies as the major element for pollution prevention. The focus of the various programmes and schemes of the Ministry and its associated organizations related to pollution prevention and control is, therefore, on such issues such as promotion of clean and low waste technologies, waste minimization, reuse or recycling, improvement of water quality, environment audit, natural resource accounting, development of mass-based standards, institutional and human resource development etc. The whole issue of pollution prevention and control is dealt with by a combination of command and control methods as well as voluntary regulations, fiscal measures, promotion of awareness, etc.
  • National Environment Policy, 2006– this policy came in light of filling the gap between the existing policies in order to attain the goal of sustainable development more broadly. It does not displace but builds on the earlier policies.  The present-day consensus reflects three foundational aspirations. First, human beings should be able to enjoy a decent quality of life; second, that humanity should become capable of respecting the finiteness of the biosphere; and third, that neither the aspiration for the good life nor the recognition of biophysical limits should preclude the search for greater justice in the world. The National Environment Policy is also a response to India’s commitment to a clean environment, mandated in the Constitution in Articles 48 A and 51A (g), strengthened by judicial interpretation of Article 21. It also establishes that maintenance of a healthy environment is not the sole responsibility of the government but also the responsibility of every citizen[39].
  • Vision Statement on Environment and Health- The key purpose of this Vision Statement on Environment and Human Health is to evolve a strategy for health risk reduction. It also offers a comprehensive approach to environmental health management plans, which would be a systematic approach to estimate the burden of disease and injury due to different environmental pollutants. Therefore, the activities and programs required to be taken up for the protection of public health due to environmental pollution are also given in this statement in the form of a road map[40].

There are other initiatives that are taken by the central government, state government, NGOs and other organization towards the healthy environment which makes awareness towards the protection of the environment and make it a responsibility of every citizen toward its utilization. Campaigns like single use of plastic, #selfiewithsapling, etc. connect people from the root level of the society towards environment protection. These campaigns motivate individuals to become environment-sensitive.

Natural calamities or manmade calamities usually take place in areas where state government and the people are not sensitive towards the environment. Problems like air pollution due to smoke emission from industry or vehicle, water pollution due to industrial water waste discharge, washing of clothes on the river banks, an improper link of water bodies, poor drainage system, deforestation, use of plastics, building dams, etc. create health issues. The flood which takes place in the urban areas can be managed but due to inadequate urban planning flood happens. Urban water bodies such as wetlands, provide crucial services like groundwater recharge and flood management. But these bodies are not recorded under municipal laws[41].

In the run of being a developed nation, the importance of the environment is lost. There are so alternative sources of energy available like solar energy, water harvesting, etc. but very few people know the proper method of applying it in their daily life. Although the use of solar energy is motivated by the government and subsidy is also provided but very few use it. We need to take small steps on our part for a healthy environment. The water bodies that are not recognized under the law should be covered under the law and should be used for storing rainwater during summers when water scarcity.

There should be proper management of waste. Swachh Bharat mission a flagship program by the government for providing proper sanitation to everyone is the aim. If there will be improper management of waste, the waste will ultimately contaminate water bodies which will lead to water pollution and marine life is also affected. There are still illicit cutting of trees happening in the name of unreserved forest which recently happened in the array forest, Mumbai were thousands of trees that were cut off by the municipal body because it was not forested under the Environment Protection Act, 1987. These should be identified by the state government and protected by them; they should be made reserved under the law. There is already a lot of harm is done to the environment due to insensitivity towards it. The protection of it is now in the responsibility of everyone. The blame for exploitation cannot be only given to the government it is also the duty of us for its conservation. 

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1]Id., p. 55.

[2] Culture and societies of the Indus tradition- Harappa, available at,https://www.harappa.com/sites/default/files/pdf .

[3]Sanchari Pal, Barking up the right tree(feb 15, 2017) available at,https://www.thebetterindia.com.

[4]  Raman deep kaur, Sacred trees worship in India(july 7, 2014) available at, www.Mapsofindia.com.

[5] Heart of Hinduism, available at,https://iskconeducationalservices.org

[6]  The constitution 42nd amendment act, 1976, available at,http://legislative.gov.in.

[7]P. M. Bakshi, THE CONSTITUTION OF INDIA.

[8]Constitution of India 1950, 7th schedule,available at, https://www.mea.gov.in.

[9] P LeelaKrishnan, ENVIRONMENTAL LAWS IN INDIA, (lexis nexis3rd edn., 2008), Pg. 67.

[10]Litigation and Entitlement Kendra vs. State of UPAIR 1988 SC 2187

[11]Id., p 376.

[12]Banwasiseva ashram vs state of UP, (1992) 2 SCC 202.

[13]Id., pp29-33.

[14]P Leelakrishnan, ENVIORNMENTALLAW IN INDIApg. 40-41(lexis nexis3rdedn., 2008).

[15]P Leelakrishnan, ENVIORNMENTAL LAW IN INDIA pg. 42 (lexis nexis3rdedn.,2008).

[16] A concise history of tiger hunting in India,available at, https://blog.nationalgeographic.org.

[17] A concise history of tiger hunting in India,available at,https://blog.nationalgeographic.org.

[18] About project elephant,available at,http://www.wildlifeofindia.org

[19]P Leelakrishnan, ENVIRONMENTAL LAW IN INDIA pg. 81(lexis nexis3rdedn., 2008).

[20]MC Mehta and Anr. Etcvs Union of India, 1986 SCR (1) 312.

[21]TN GodarvarmanTirumulpadvs Union of India AIR 1998 SC 769.

[22]M.C. Mehta vs. Union of India AIR 1988 SCR (2) 538.

[23]M.C. Mehta vs. Union of India (Taj Trapezium Case) AIR 1987

[24]Budget 2019,(july 5, 2019)available at, https://economictimes.indiatimes.com.

[25]Ministry of heavy industries and public enterprises, Fame India Scheme,available athttps://pib.gov.in.

[26]Department of heavy industries, FAME Phase 2, available at, https://dhi.nic.in

[27]The Control Motor Rules, 1989.

[28] About CAMPA, available athttp://egreenwatch.nic.in

[29]LED Bulb Mission (july 5, 2019)available athttps://www.indiainfoline.com.

[30] ICZM Project 1st Phase available athttp://sicom.nic.in.

[31]ICZM Project 2nd Phase available athttp://sicom.nic.in.

[32]Central Pollution Control Board available athttps://cpcb.nic.in.

[33] National Water Quality Monitoring Program available athttps://cpcb.nic.in.

[34] National Tiger Conservation Authority available athttps://projecttiger.nic.in.

[35] A concise history of tiger hunting in India (Mar. 10, 2014) available at https://blog.nationalgeographic.org.

[36] Planning commission report 2007, Report on environment and environmental regulatory mechanism, available athttp://planningcommission.nic.in.

[37]Policies on environment protection available athttp://iced.cag.gov.in.

[38]National Conservation Strategy and Policy Statement on Environment and Development, 1992,available athttp://indiaenvironmentportal.org.in.

[39] National Environment Policy, 2006, available athttp://iced.cag.gov.in.

[40]Vision Statement on Environment and Healthavailable athttp://iced.cag.gov.in

[41]Extreme weather is the new norm,Hindustan Times (Delhi, 1st October 2019).

Categories
Editorial

Ban on Cow Slaughter

This Essay is submitted by –

  • Bodhisattwa Majumder, 5 year B.A.LL.B. of Maharashtra National Law University Mumbai 

The ban on cow slaughter emphasises a restriction on the sale of cattle in animal markets for slaughter. This has given rise to several contentions regarding the constitutional validity of the law. This paper analyses the magnitude of the responsibility of the Parliament embedded by the constitution, and what was the intent behind the drafting of Article 48 of the directive principles of the state policy. The imposition of ban on slaughter of cow was achieved by the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 [Animal Market Rules].[1]  Furthermore, the article refers to a broad selection of Milch animals and if the government’s real interest was indeed the prevention of cruelty to animals due to slaughter, there cannot be any constitutionally acceptable reason for leaving out chickens, pigs, sheep, goats, fish, rabbits, etc.[2] It is left to the various State Governments to frame laws regarding cow slaughter. A majority of the states have banned cow slaughter while some states allow it, under certain terms and conditions.[3] The implementation of the laws has not been uniform and efficient to achieve the intent of the framers of the constitution.  The laws also have to be deeper and better thought out. The aim of this legislation must be not confused with preserving religious sentiments and the intent of the organisation of agriculture and animal husbandry could be achieved better.[4] An example would be to enforce the killing of aged male bulls as they are a mere liability to the farmers who have to maintain them and can’t make them work or sell them for their meat.[5]

The Researcher will limit the project to the legislations passed by the Indian Legislature only and not focus on the international scenario. He will go across the laws, amendments, constitutional and parliamentary debates to understand the intent of the legislation and the constitutionality of the laws passed. He will also read various articles to understand the implementation and the consequences of the ban on cow slaughter. The researcher will conclude the paper with certain amendments which might help achieve the intent for which the article was drafted.

Definition and Scope of Cow Slaughter Ban

According to the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules), through its operation, imposes a virtual ban on the sale of cattle in animal markets for slaughter. The scope of the applicability of Cow Slaughter ban is defined in Rule 2(e) which defines ‘cattle’ as a “bovine animal including bulls, bullocks, cows, buffalos, steers, heifers, and calves including camels”. Rule 22 (e) imposes a duty to the Member Secretary of Animal Market Committee (The Chief Municipal officer of the local authority) that no purchaser of a cattle shall (i) sell the animal for slaughter or (iii) sacrifice the animal for any religious purpose.

Historical Background of Cow Slaughter Ban

Scholars have known for centuries that the ancient Indians ate beef.[6] In the time of the oldest Hindu sacred text, the Rig Veda (c. 1500 B.C.), cow meat was consumed. Like most cattle-breeding cultures, the Vedic Indians generally ate the castrated steers, but they would eat the female of the species during rituals or when welcoming a guest or a person of high status.[7] Ancient ritual texts are known as Brahmanas[8] (c. 900 B.C.) and other texts that taught religious duty (dharma), from the third century B.C., say that a bull or cow should be killed to be eaten when a guest arrives. According to these texts[9], “the cow is food.” Even when one passage in the “Shatapatha Brahmana” (3.1.2.21) forbids the eating of either cow or bull, a revered ancient Hindu sage named Yajnavalkya immediately contradicts it, saying that, nevertheless, he eats the meat of cow and bull, “as long as it’s tender.”[10]

It was the Sanskrit epic, the Mahabharata (composed between 300 B.C. and A.D. 300) that explained the transition to the non-eating of cows in a famous myth:[11]

“Once, when there was a great famine, King Prithu took up his bow and arrow and pursued the Earth to force her to yield nourishment for his people. The Earth assumed the form of a cow and begged him to spare her life; she then allowed him to milk her for all that the people needed.”

This myth depicts a transition from hunting wild cattle to preserving their lives, domesticating them, and breeding them for milk, a transition to agriculture and pastoral life. It visualizes the cow as the animal that yields food without being killed.

Laws related to Cow Slaughter Ban

Article 48 of the Indian Constitution

According to Article 48 on the Indian Constitution,

The organisation of agriculture and animal husbandry: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

However, this article, as it is in Part IV of the constitution, which contains the directive principles of state policy, is not justifiable in law. While duty is cast on the state to make laws based on the urging of the various directive principles, no person can question the state in a court of law on the ground that a provision in Part IV stands violated by either the government’s action or inaction, as the case may be.

Rule 22 of Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 [Animal Market Rules]

According to the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules), through its operation, imposes a virtual ban on the sale of cattle in animal markets for slaughter. Rule 22 (e) imposes a duty to the Member Secretary of Animal Market Committee (The Chief Municipal officer of the local authority) to prevent and ensure that no purchaser of a cattle[12] shall (i) sell the animal for slaughter or (iii) sacrifice the animal for any religious purpose. This law concerns itself with practices that inflict unnecessary pain or suffering on animals. Its mandate isn’t to regulate the preservation, protection and improvement of livestock, something which is decidedly for the states to do.

Article 246 (15 Entry in the State List)

According to entry No.15 in the state list, confers the State Legislature exclusive power to enact laws banning cow slaughter. It states,

Article 246, List II – State List (15) Preservation, protection and improvement of stock and prevention ofanimal diseases; veterinary training and practice.

Therefore, there is no expressed Constitutional validity which authorises the centre to pass any laws regarding preservation and protection of Cattle and implementation of the same.

Other authorities related to Cow Slaughter Ban

Constitutional Debates

On November 24, 1948, the amendment to protect cows was made by a member from East  Punjab, Pandit Thakur Dass Bhargava who argued on the economic point of view, and stated that Cattle formed a significant source of health and nutrition. His argument was threefold, firstly the practice of agriculture should be improved, cattle related to dairy and agriculture should be improved and lastly, cow and another form of cattle should be protected.[13] His argument was substantiated by R V Dhulekar who added the religious perspective of Cow as a symbol for Hindus who worship them as a mother and also added the historical perspective where Babur had instructed Humayun to refrain from cow slaughter to win hearts of Hindus.[14]

Religious Mandates

Hinduism places a certain sacredness on Cow as an animal and cow killing and cow eating were not sanctioned by the Vedic scriptures to the contrary they were condemned, and also according to the authority of the Bible cow killing is not sanctioned in the Christian religion either.[15]

  • Lord Krishna states in Srimad Bhagavad-Gita[16] that he is manifested as kamadhuk in cows, meaning Kamadhenu the wish-fulfilling cows, which confers that Cows represent a portion of the supreme energy of Lord Krishna.
  • In Sri Chaitanya Charitamrita Adi Lila,[17] Chaitanya Mahaprabhu confirms, that Cow killers and cow eaters are condemned to rot in hell for as many thousands of years as there are for each hair on the body of every cow they eat from
  • In the Rig Veda,[18] we find: “One who partakes of human flesh, the flesh of a horse or another animal and deprives others of milk by slaughtering cows; if such a fiend does not desist then even cut off their heads by your powers Oh king.”
  • In the Manu-Samhita[19], we find: “A guru, a teacher, a father, a mother, a brahmana, a cow and a yogi all should never be killed”.
  • Even in the Old Testament of the Bible which applies to both Christians and Jews in Isaiah, we find[20]: “He that killeth an ox is as if he slew a man. He that sacrifices a lamb is as if he slit a dogs neck, he that offereth it as an oblation is as if he offered swines blood, he that burneth it as incense as if he blessed an idol. Yea they have chosen their way and their soul delighteth in their abominations.”

Gandhian Perspective on Cow Slaughter Ban

Gandhi is invoked frequently in the course of the debate but his musings on cows and cow slaughter were nuanced and evolved. His view depicted that people should focus on gau ‘Seva’ or serving cows and not on protection or gau ‘Raksha’. In 1921, he reflected: “I would not kill a human being for protecting a cow, as I will not kill a cow for saving a human life, be it ever so precious.[21] By 1946, Gandhi was clear that “Cow slaughter can never be stopped by law. Knowledge, education, and the spirit of kindliness towards her alone can put an end to it.”[22]

Constitutional Validity of Cow Slaughter Ban

Application of the Directive Principles

The intent of the Constituent Assembly behind the drafting of the relevant directive principle that is Article 48 of the Indian Constitution is to preserve the cattle animals from being slaughtered for the meat for economic reasons. This article was drafted by the constitutional assembly when cattle were used solely for either dairy purposes or to plough the land. However, with the development of technology, in the current scenario, various vehicles such as tractors are used for this purpose which makes the whole procedure swift and economically efficient, thus making the directive principle redundant and contradictory to the intent of the legislature.[23]

3.2              Authority to legislate laws on Cow Slaughter Ban

By the virtue of Article 246, 15th Entry to the State List, the States have been given the exclusive authority to pass legislation regarding the regulation/prohibition of cow slaughter as issues relating to livestock are invariably tied to local conditions of agriculture, availability of fodder, customs, dietary preferences, etc, Therefore, this indirect attempt through the Prevention of Cruelty to Animals Act, 1960 because the power to make laws on animal cruelty is shared between the union and the states on the concurrent list.[24] The Government of India, under the garb of Animal cruelty, is striving to achieve the implementation of law based on the directive principle related to Animal Husbandry which is not within the powers of Centre. Therefore, national anti-cow slaughter legislation by Parliament is unviable because the constitution does not give Parliament the power to make such a law.

Restriction of Inter-state Trade violates Article 301

The states of Assam and West Bengal permit the slaughter of cows of over the ages of 10 and 14 years, respectively. No state law explicitly bans the consumption of beef. There is a lack of uniformity among state laws governing cattle slaughter. The strictest laws are in Delhi, Gujarat, Maharashtra, Madhya Pradesh, Punjab, Rajasthan and Uttar Pradesh, where the slaughter of cow and its progeny, including bulls and bullocks of all ages, is completely banned. Most States prohibit the slaughter of cows of all ages. This includes the storage and consumption of beef. However, in Punjab and Uttar Pradesh, the import of beef for consumption is not banned. In Himachal Pradesh cow slaughter for the research is legal.[25] Assam, Andhra Pradesh, Telangana, Manipur and Tamil Nadu have imposed only partial bans on cow slaughter. In Manipur and Tamil Nadu, beef consumption and slaughter of cow with “fit- for-slaughter “certificate are allowed. In Assam, Andhra Pradesh and Telangana slaughter of cows are permitted with “fit-for-slaughter” certificate. The “fit-for-slaughter” certificate is given when the cattle turn economically useless.[26]

The Rules regarding the Ban of Cow Slaughter has not been uniformly imposed. Furthermore, the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules) places restrictions on inter-state sale. According to Rule 22(e)(iv),

“the purchaser of cattle cannot sell cattle outside the state without permission, as per state cattle preservation and protection laws”

This rule restricts the traders to sell cattle meat where it is legally permitted. Also, Article 301 of the Constitution declares that trade, commerce and intercourse throughout the territory of India shall be free. Whether the restriction imposed as per Rule 22(e)(iv) is a reasonable one to be saved by Article 302 should be examined by the appropriate judicial authorities.

Infringement of Fundamental Rights

The Fundamental Right to practice trade can only be restricted by an enacted law but not through a delegated legislation framed by the executive. The above rules also infringe Right to Livelihood, emanating from Article 21.

Rules also restrict one’s food choices. In the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat[27]the court held that what one eats is one’s personal affair and forms part of right to privacy under Article 21.

Case Laws Regarding Cow Slaughter Ban

Mohd. Hanif Quareshi vs. State of Bihar 1959 SCR 629

In the case of Mohd. Hanif Quarashi v. State of Bihar[28], the Hon’ble Supreme Court heard the petition challenging the Slaughter of Cattle in the states of Uttar Pradesh, Madhya Pradesh and Bihar. The Laws banning Cow Slaughter was challenged on three grounds. The Grounds included that it was against the interest of General Public, it violated the Right to trade of butchers under 19(1)(g) of the Indian Constitution and lastly that the ban offended other religion who required the sacrifice of Cow for religious purposes.The Supreme Court held that the total ban of cow slaughter is valid and in consonance with the Directive Principles of State policies under Article 48 provided that they are capable of use as milch or draught animals. Regarding the ground of sacrifice being a part of religion, the court stated that no evidence was laid before the court which state sacrifice of a cow is obligatory overact, therefore the court stated that total ban is within the scope of Article 19(6).

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534

In this case, the petition challenged the amendments in Section 5[29] of the Bombay Animal Preservation Act, 1976[30], which changed the ban on slaughter of bulls and bullocks under the age of 16 to a complete ban, applicable to the state of Gujarat, because bulls and bullocks over the age of 16 become economically unbeneficial.

The court held that[31],

“In the agricultural sector, use of animals for milch, draught, breeding or agricultural purposes has great importance. It has, therefore, become necessary to emphasise preservation and protection of agricultural animals like bulls and bullocks. With the growing adoption of nonconventional energy sources like biogas plants, even the waste material has come to assume considerable value. After the cattle cease to breed or are too old to do work, they still continue to give dung for fuel, manure and biogas, and therefore, they cannot be said to be useless. The backbone of Indian agriculture is the cow and her progeny in a way. The whole structure of the Indian agriculture and its economic system is indirectly dependent on the cow. In order to give effect to the policy of the State towards securing the principles laid down in Articles 47, 48 and clauses (b) and (c) of Article 39 of the Constitution, it was considered necessary also to impose total prohibition against slaughter of progeny of cow.”

The Court rejected all arguments on the grounds of fundamental rights under Article 14[32] and Article 19(1)(g)[33] by stating that the context of the need of cattle for Indian Economy holds greater purpose than a mere inconvenience to the butchers, therefore, this law serves the purpose of the general public thus is constitutionally valid.

Conclusion

While the object of the legislation for Article 48 which was to preserve cattle to suit the Indian Economy while promoting animal husbandry differs to a great extent from the Object of Prevention of Cruelty towards Animals which is to prevent inflict unnecessary pain or suffering on animals. The current law holds the butcher and the consumer liable for the slaughter rather than the calf-killer which gives rise to various acts of violence towards the seller or the consumer which in turn fails to facilitate the object of the legislature. The purpose of using Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules) by the Centre is to obtain the authority for the Centre to pass legislation as under Entry 15 of the State List under Article 246 the exclusive power is conferred to the states rather than Centre. The object of the Constituent assembly behind the passing of Article 48 (Earlier Article 32 of the Draft Constitution) was also consistent which was discussed in detail in the paper. Although not explicitly mentioned, Cow as an animal indisputably holds a significant position in Hinduism and is a form of Symbol which is worshipped as the representation of godliness and supreme energy which is substantiated in various Hindu texts such as Srimad Bhagavad Gita, Sri Chaitanya Charitamrita Adi Lila, Rig Veda, Manu Samhita and even indirectly in the Old Testament of the Bible. The applicability and uniformity of the laws passed are also in question as the ban on Cow Slaughter varies geographically as partial, complete and none.

The Constitutional validity of the law is also contestable on various grounds. The application of the directive principles is not proper and the purpose of Article 48 is not served as the methods of farming have changed and cattle are not used in such magnitude for farming as during the time of legislation. Also, the Centre is not vested with the power to pass laws in pursuance of Article 48 and the purpose has been achieved under the garb of prevention of Animal Cruelty. Also, the non-uniformity of the law and the application of Rule 22 (e)(iv) of the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules) construes a restriction of inter-state trade which goes in conflict with Article 301. Lastly, the fundamental right to trade and choice of one’s food choices which can only be restricted by an enacted law is restricted through a delegated legislation framed by the executive which is unconstitutional. The legislature needs to reconsider the relevancy of Article 48 and whether the object of the article is pertinent to the Agricultural Scenario of the nation. Also, the implementation, the procedures and the scope of the Cow Slaughter ban need to be reviewed. The Scope and authority of the legislative authority should be kept in mind and the uniformity should also be made an essential component while implementing the law, and whether ultimately the law can achieve the objective of the legislation with being in accordance to the fundamental rights and the spirit of the constitution.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1]Suhrith Parthasarathy, Modi Government’s Cattle Slaughter Ban Is Brazenly Unconstitutional ,The Wire (2017), https://thewire.in/143561/modi-cattle-slaughter-ban-unconstitutional/ (Acessed on Jul 23, 2017).

[2]Sandhya Ram, “Ban on Cow Slaughter: The Camouflage of Article 48” Live Law (2017), http://www.livelaw.in/ban-on-cow-slaughter-the-camouflage-of-article-48/ (Acessed on Jul 23, 2017).

[3]Ibid

[4]Anup Surendranath, A constitutional misadventure, Indian Express (2017), http://indianexpress.com/article/opinion/columns/a-constitutional-misadventure-cow-slaughter-gau-rakshak-beef-ban-4679912/ (Acessed on Jul 23, 2017).

[5]Ilaiah, Kancha. 1996. Beef, BJP and Food Rights of People. Economic and Political Weekly (June 15th). (Accessed on Jul 23, 2017).

[6] Jha, D. N.,“The Myth of the Holy Cow”, 2002

[7] Ibid

[8]“Dharmasutras: The Law Codes ofN Ancient India”, Oxford Classics, http://www.ahandfulofleaves.org/documents/Dharmasutras_Olivelle_1999.pdf, Accessed on 11th August.

[9] Ibid

[10] Ibid

[11]Doniger O’Flaherty, Wendy, “The Origins of Evil in Hindu Mythology”, ISBN: 9780520040984

[12]Rule 2(e) states ‘cattle’ as a “bovine animal including bulls, bullocks, cows, buffalos, steers, heifers, and calves including camels”

[13]Full text of “Directive Principles In The Indian Constitution”, https://archive.org/stream/in.ernet.dli.2015.131718/2015.131718.Directive-Principles-In-The-Indian-Constitution_djvu.txt, Accessed on 17.08.17

[14]Anup Surendranath, A constitutional misadventure, Indian Express (2017), http://indianexpress.com/article/opinion/columns/a-constitutional-misadventure-cow-slaughter-gau-rakshak-beef-ban-4679912/ (Accessed on Jul 23, 2017).

[15]Varaha, Swami Bhakti Vedanta, “The Srimad Bhagavad-Gita and the Sacredness of All Cows”, http://www.bhagavad-gita.org/Articles/holy-cow.html, Accessed on 19th August, 2017

[16]Chapter 10, Verse 28

[17]Chapter 17 Verse 166

[18]X.87.16

[19]Chapter 4, Verse 162

[20]Chapter 66 Verse 3

[21] Gandhi, Mohandas Karmchand, “Soul Force: Gandhi’s Writings on Peace”, Page 183

[22] Davis, Janet M, The Gospel of Kindness: Animal Welfare and the Making of Modern America, Page 174

[23]“Ban on Cow Slaughter in Gujarat – An attack on Personal Freedom”, Firstpost, http://www.firstpost.com/politics/ban-on-cow-slaughter-in-gujarat-an-attack-on-personal-freedom-is-religion-creeping-into-our-republic-3364090.html, Accessed on 18th August, 2017.

[24]Anup Surendranath, A constitutional misadventure, Indian Express (2017), http://indianexpress.com/article/opinion/columns/a-constitutional-misadventure-cow-slaughter-gau-rakshak-beef-ban-4679912/ (Accessed on Jul 23, 2017).

[25]“Report of the National Commission on Cattle – Chapter II (17. Legislation regarding ban on Cow slaughter)”. DAHD. Accessed on 10th August, 2017

[26]No Beef Nation, Indian Express,  http://indianexpress.com/article/explained/explained-no-beef-nation/, Accessed on 10th August, 2017

[27]HinsaVirodhak Sangh v. Mirzapur Moti KureshJamat (2008) 5 SCC 33

[28]1959 SCR 629

[29] Notwithstanding anything contained in any other law for the time being in force or any usage or custom to the contrary, no person shall slaughter cause to be slaughtered or offer for slaughter any cow, [bull or bullock] in any place in the State of Maharashtra.

[30]Maharashtra Act No. IX OF 1977

[31]State of Gujarat vs. Mirzapur Moti KureshiKassabJamat (2005) 8 SCC 534

[32]The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[33]All citizens shall have the right (g) to practise any profession, or to carry on any occupation, trade or business