REVENGE PORN- ONLINE ABUSE AND INDIAN LAW

By: Vaishali Jain

INTRODUCTION

Revenge pornography is described as “dissemination or posting sexually explicit media without the consent of the individual in the media, especially where the intent is to shame, humiliate and frighten the person or otherwise cause them harm.”[1]

Revenge porn is an act of invasion of privacy. It is often done by ex-partners/former lovers who are seeking vengeance after a breakup by sharing sexually explicit images and obscene videos.

The patriarchal nature of Indian society takes the approach of slut-shaming and victim blaming which inflicts anxiety and emotional distress to the victim of revenge porn. The menace of victim shaming discourages and prevents the victims to report the incident to the police and register a FIR. In some instances, victims commit suicide due to the bullying and harassment.[2]

LEGAL REVENGE AGAINST REVENGE PORNERS

Indian does not have an explicit law to deal with revenge porn. The legal provisions to cover the crime are entailed in 2 statutes namely, the Information and Technology Act, 2000 (hereinafter referred to as ‘IT Act’) and the Indian Penal Code, 1860. (hereinafter referred to as ‘IPC’)

Section 66E IT Act- Punishment for violation of Privacy

It is stated in the section that any person who intentionally or knowingly captures, publishes or transmits the image of a private area of any person without consent, is in violation of privacy. The punishment shall be imprisonment which may extend to 3 years or a fine upto 2 lakhs.

Section 67A IT ActPunishment for publishing transmitting materially containing sexually explicit act in electronic form.

Section 292 IPC- Circulation and distribution of obscene material [which is lascivious or appeals to the prurient interest].

Section 354C IPC- Voyeurism

The section states that if any man watches or captures a woman engaged in a private act and disseminates such image, he shall be punished with imprisonment upto 3 years or fine.

Section 509 IPC- Act intended to outrage the modesty of a woman.

CASES OF REVENGE PORN IN INDIA

  • State of West Bengal V. Animesh Boxi[3]

The accused was in a relationship with the victim and acquired intimate pictures from the victim under the guise of promise to marry her. When the victim ended the relationship, the accused posted pictures and videos on a pornographic website with her name. The accused was sentenced to five years in jail and fined Rs.9000 by a West Bengal Sessions Court for uploading objectionable pictures of the girl without her consent. The Court also went a step further and instructed the State government to treat the victim as a rape survivor and compensate her accordingly.

  • RE: Prajwala Letter dates 18.02.15 Videos of Sexual Violence and Recommendation[4]

NGO Prajwala wrote a letter enclosing two rape clips being disseminated and circulated on the internet. The Supreme Court took a suo moto writ petition based on the letter. The Court ordered Government to finalize a ‘Standard Operating Procedure’ for cyber police portals who are entrusted to handle complaints involving child pornography, child sexual abuse material, rape and gang rape videos and obscene content.

  • Subhranshu Rout V. State of Odisha[5]

The perpetrator and the victim were in a relationship. The attacker went to the victim’s house one day and assaulted her while she was alone at home. He also recorded the horrendous incident on his cell phone. The perpetrator threatened the victim that if she disclosed the incident to anybody; he would release the photos and videos to public. When the victim narrated the incident to her parents, the perpetrator uploaded all the objectionable photos on Facebook. The Court while refusing to grant bail to the perpetrator noted that “allowing such objectionable photos and videos to remain on social media without her consent is a direct affront on a woman’s modesty and right to privacy.”

The Hon’ble Court also emphasised on the significance of ‘Right to be Forgotten’ (getting the photos deleted from the server permanently) in the context of right to privacy.

CONCLUSION

Revenge porn victims become easy targets of stalking, harassment and rape threats. They suffer dreadful consequence such as reputational harm, emotional injury and loss of job prospect.[6]  Release of intimate pictures and videos online can inflict grave psychological harm to the victim. A provision to provide counselling to the victim during the trial can help victims in coping up with the adverse effects of the crime.

A victim-sensitive approach from the police can help in enhancing the chances of victim to report the crime and register FIR.[7] Sensitization of law enforcement, prosecutors and judges can prevent secondary victimization.[8] Change in the societal outlook and a victim-oriented environment can go a long way in helping the victim to recover from the dreaded incident. Furthermore, educating children about cyberbullying and the consequences of online behaviour will ensure that they grow up to be good and responsible citizens.[9]


[1] Thomas Lonardo, Tricia Martland, Doug White, “A Legal Examination Of Revenge Pornography And Cyber Harassment”, The Journal of Digital Forensics, Security And Law, [2016], Available at: https://commons.erau.edu/jdfsl/vol11/iss3/8/

[2] Tegan Starr and Tiffany Lavis, “Perceptions Of Revenge Pornography And Victim Blame”, International Journal Of Cyber Criminology, [January,2018], Available at: https://www.researchgate.net/publication/335976380_Perceptions_of_Revenge_Pornography_and_Victim_Blame

[3] State of West Bengal v Animesh Boxi, C.R.M. No. 11806 of 2017

[4] 2018 SCC OnLine SC 2111

[5] 2020 SCC OnLine Ori 878

[6] Clay Calvert, “Revenge Porn and Freedom of Expression: Legislative Pushback To An Online Weapon of Emotional And Reputational Destruction”, Fordham Intellectual Property, Media and Entertainment Law Journal, [2014], Available at: https://core.ac.uk/download/pdf/144230647.pdf

[7] Chitrangada Sharma, Revenge Porn: Offending and Victimization in Digital Age, National Law University, [2019], Available at: http://14.139.58.147:8080/jspui/bitstream/123456789/299/1/32LLM18.pdf

[8] Id

[9] Justice J.S. Verma, Justice Leila Seth, Gopal Subramanium, “Report Of The Committee on Amendments To Criminal Law”, Justice Verma Committee, [January 23, 2013], Available at: https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf


“Aarushi Talwar Murder Case: Demystifying Series of Circumstantial Evidence.”

By-Rishabh Taneja & Anshu Rajput

“As she melts into the ocean of time mysteriously, still her soul craves for justice, with expectation that one day; the light of the divine court will enlighten and say ‘Return, O Children of Man!..’”

— Anonymous

   

INTRODUCTION

 ‘Every criminal leaves a trace’, one such principle which aptly summarized Edward Locard’s “Theory of Exchange.” In voluminous cases, this principle has reaffirmed itself to the extent that justice has prevailed in each one of them. The idea is firmly subjective; but acts as a compelling and motivating factor simultaneously to signify the direction to proceed in the investigation and the thirst to find evidence to take down the criminal. The Preamble of the Indian Constitution unequivocally points toward the principle of “Social Justice”. Aristotle says “Man is by nature a social animal.” Having stated that, it is a well settled fact that this social animal i.e. every human reacts differently to different situations. This universal fact is the very basis in understanding and establishing the foundation of formation and disruption in the chain of events in Aarushi Talwar Murder Case. This fact will not only clarify the conduct of the accused couple, but also the conduct of the investigating agencies of the system; which shook the foundation of justice and led to such a situation which any human could have barely imagined.

This paper tries to explore the minutest details of circumstantial evidence, in accordance and vision with the Indian Evidence Law and streamline the string of situations which could have been avoided by due diligence and intelligence by non-contamination of the initial crime scene. This case is a perfect example which turned out to be an emotional turmoil for the society and still will be remembered vastly in criminal jurisprudence.

FACTS OF THE CASE- THE PREFATORY (CLUBBED)

  1. The accused couple in the case was Dr. Rajesh Talwar, specialized in Prosthetic Dentistry and Dr. Nupur Talwar, specialist in Orthodontics who filed an appeal in the Allahabad High Court under section 374 (2) of the Code of Criminal Procedure against the judgment of Ghaziabad Trial Court, which convicted and sentenced them to a rigorous imprisonment for life and a fine of Rs.10,000/- each under section 302/34 of the I.P.C.
  2. The Ghaziabad Trial Court also held them in conviction under section 201/34 of I.P.C and sentenced them to five years rigorous imprisonment and a fine of Rs. 5000/-. Additionally, Dr. Rajesh Talwar was convicted under section 203 of I.P.C. and sentenced to a simple imprisonment of one year with a fine of Rs.2000/- and all the sentences were to run concurrently.
  3. The accused were the residents of L-32, Jalvayu Vihar-Noida and were residing there with their beloved daughter Aarushi and a servant named Hemraj, who was employed for daily domestic drudgeries and household chores in the apartment. Hemraj also occupied the room in the same flat.
  4. On 15.05.2008, the appellants presented their daughter Aarushi, a Sony Digital Camera as an advanced birthday gift and she had a very exciting and a happy state of moments with her family. Post this, Aarushi went to sleep and Dr. Rajesh Talwar had to send an e-mail to the American Dentistry Association; so he asked Dr. Nupur Talwar to switch on the internet router in Aarushi’s bedroom. Dr. Nupur Talwar complied, leaving the key of Aarushi’s bedroom into the lock. The air conditions were switched on which were very noisy.
  5. On 16.05.2008, the temporary maid Bharti Mandal rang the doorbell of the flat two times but there was no response. She put her hand on the outer grill door but it did not open. She pressed the bell again and Dr. Nupur Talwar opened the door and stated that the key of the door might be with Hemraj, who must have gone to fetch milk and told Bharti Mandal to go to the ground floor so that she could throw the spare key.
  6. Meanwhile, Dr. Nupur called Hemraj on his mobile. The call was connected and then got disconnected. Bharti Mandal stated that Dr. Nupur Talwar told her that the door was not locked but latched from outside; and this was denied by Dr. Nupur Talwar. Bharti Mandal climbed up the stairs, put her hand on the iron grill door again and it opened.
  7. She suddenly heard the couple weeping and inquired about the same. Dr. Nupur Talwar embraced her and escorted her to Aarushi’s room; she pulled the bed sheet in which her daughter was covered and found Aarushi’s dead body with her throat jugulated and slit. Within hours of discovery, the flat was crowded with people, police and strangers.
  8. On the arrival of police, Dr. Rajesh Talwar scribed the report of occurrence with his probable degree of possibility and stated that the servant, Hemraj murdered his daughter Aarushi with sharp weapons and went missing from the previous night and he might have absconded. The investigation was done by S.I. Data Ram Nauneria who recorded the statements and collected the additional evidence.
  9.  On 17.05.2008, the lock put on the terrace of the Talwars was broken and Hemraj’s dead body lying in pool of blood was found covered with the panel of cooler and dragging marks were visible on the terrace. Meanwhile, Talwars were on their way to Haridwar and a call was received by Dr. Rajesh Talwar regarding the discovery of dead body. Further statements were recorded and evidence was collected & the investigation was transferred to Mr. Anil Samania. After few days, Dr, Rajesh Talwar was arrested as the prime suspect in the double murder case.
  10. The case was then transferred to the C.B.I which recovered 14 articles from the place of occurrence and took possession of bloodstained palm print on the terrace wall. Krishna Thadaria, the clinic employee of Dr. Rajesh Talwar was arrested and three articles including khukri,(a sharp edged knife)having specks of blood and a purple color pillow cover were recovered from his residence.
  11. Krishna underwent the lie-detector test, polygraph test, narco-analysis and brain-mapping test. The results indicated the presence of Rajkumar and Vijay Mandal in the house of Talwars at that night. A report was filed by C.B.I under Section 169 of C.R.P.C and Dr. Rajesh Talwar was released on custody.
  12. The investigation was then transferred to Richh Pal Singh and then to AGL Kaul. The closure report submitted by AGL Kaul was rejected by the Special Judicial Magistrate and he himself took cognizance of offence under Section 190(1)(b) of the Criminal Procedure Code and a trail was ordered against Dr. Rajesh and Dr. Nupur Talwar.
  13. The order of trial was challenged in Allahabad High Court as well as in the Hon’ble Supreme Court of India but was dismissed and the case was finally tried in the Sessions Court, Ghaziabad.
  14. The Ghaziabad Sessions court held the appellants convicted and awarded sentences accordingly.
  15. Finally, after an appeal to the Allahabad High Court,  the Talwars were acquitted by the Court on the basis of benefit of doubt. The conviction by the Sessions Court was set aside and it was held that the sentence awarded to the accused cannot be sustained.

PROCEDURAL LITANY OF CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence is the direct evidence which relates to a series of other facts than facts in issue: but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to satisfactory conclusion.[1] It is always primary and the facts from which the existence of the fact in issue to be inferred must be proved by direct evidence. In Sarad Birdichand Sarda v. State of Maharashtra[2], the Supreme Court laid down five golden principles of circumstantial evidence. The Allahabad High Court applied the test to the judicial scrutiny in Aarushi’s murder case and made out the following extrapolations and inferences:

  1. Principle I- The circumstances from which the conclusion of the guilt is to be drawn must be fully established.  
  2. It is based on the grammatical and legal distinction between “must” and “may”. It means that the circumstances should be such which directly point towards the guilt of the accused and all the vague conjectures must be eliminated. The High Court rejected the proposed proposition of the prosecution as to motive which stated the grave and sudden provocation of Dr. Rajesh Talwar on seeing Aarushi and Hemraj in a compromising position.
  3. In support of this, the Court stated that the report prepared by Dr. M.S. Dahiya was based on the information supplied to him by the C.B.I. officer which stated that Hemraj’s blood was found on Aarushi’s pillow cover was invalid as the prior report prepared by Central Forensic Science Laboratory (CFSL) indicated the sole presence of Aarushi’s blood on pillow cover.
  4. The Court rejected Dr. Sunil Kumar Dohra’s report regarding whitish discharge in the private parts of Aarushi with vaginal cavity wide open as the same was not provided in the first three statements of the doctor & later he termed them as “subjective” findings. The Court stated that the report had no credible basis as to the fact that Aarushi was sexually assaulted as the column in the report “any other additional information” was left blank in the initial report.
  5. In case of vagina of a 13-14 years old deceased girl, neither orifice would by found open nor vaginal canal will be visible as orifice is found to be open in only those women who have given birth to several children; this is called “Prolapse”.[3]                                                     

The Allahabad High Court took all the above mentioned circumstances under the vicinity of this principle and found that the chain of events forming the circumstances was not fully established and there were loopholes in the same; which implicated that the chain of circumstances put forth by the prosecution was broken and embryonic.

  • Principle II- The facts so established should be consistent only with the hypothesis of the guilt of the accused.
  • This principle lays down that once the facts are established; they must be consistent with the hypothesis of the guilt of the accused.  The facts so established should not be explainable on any other hypothesis except the accused is guilty.[4]
  • In Aji Kumar v. State of Kerala[5], the Hon’ble Supreme Court observed that “Suspicion, however grave, cannot take the place of proof of conviction.” This fact can be placed in Aarushi’s case to the point of double edged suspicion both on the accused as well as of botched up method of investigative agencies.
  • The two key witnesses of the prosecution were the driver and maid of the accused i.e. Umesh Sharma and Bharti Mandal. Umesh Sharma stated that no other person was present in the house, besides the accused couple and both the victims. Here last seen theory firmly comes into the picture.
  • In Ashok v. State of Maharshtra[6], it was held that last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from the accused may lead to presumption of guilt.
  • However, no such evidence or chains of circumstances were there on record which stated that the accused was having an aversion to their victim daughter. However, there was one factor which could have been in the favor of prosecution i.e.  Non-explanation of death of the deceased.
  • The question arises is that if the hypothesis is pointing towards the guilt of the accused; but the explanation appended to that the hypothesis keeps on changing then whether the verisimilitude of the truth can be affected or not. A cursory glance at the judgment states that the prosecution was not able to prove that which the apt murder weapon was ranging from khukri, medical dentistry instrument or the golf stick.
  • Hence, the explanation appended to the hypothesis actually went in the favor of the accused as the prosecution was not able to establish the apt murder weapon as this raised serious concerns on the credibility of the argument of the prosecution regarding murder weapon.
  • Additionally, the reports of Dr. Sunil Kumar Dohre had falsely deposed that vaginal cavity was open and vaginal canal was visible and that opening of cavity was prominent in as much as neither this fact was mentioned neither in the post-mortem examination report nor in his first four statements given to the investigating officer.

Hence, all these circumstances proposed by the prosecution were not able to establish the credibility of hypothesis as the explanation appending to those hypothesis kept on changing. Hence, it could not establish the presumption of guilt against the accused.

  •  Principle III -The circumstances must be of conclusive nature and tendency.
  • The Ghaziabad Trial Court placed its reliance on the fact that since no other person was present in the house; as per the testimony of Umesh Sharma, the driver, and there was no proof of any outsider entry into the flat, the accused couple was convicted of an offence; as the Trial Court found it a conclusive circumstance leading to a reasonable inference.
  • But, the Allahabad High Court, took into account the additional evidence. In paragraph 196 of the judgment, the Court stated that the call records of Hemraj depicted the location of Hemraj’s phone in Punjab. This was a very strong piece of evidence that on the intervening night of 15/5/2008 and 16/5/2008; some outsider was present in the apartment who took the possession of Hemraj’s phone. This incident turned out to be an obstruction in establishing the conclusiveness of the circumstances.
  • Principle IV- Circumstances should exclude every possible hypothesis except the one to be proved.
  • As far as Aarushi Talwar Murder Case is concerned, there were overlapping arguments made by the prosecution as there was one hypothesis but multiple sub-hypothesis. The explanations appended to the arguments by the prosecution were too ambiguous.
  • Firstly, no inference could be drawn as to the apt murder weapon used. Secondly, the medical reports completely eradicated the possibility of sexual intercourse or assault on the deceased victim by Hemraj.
  • The Allahabad High Court took into consideration the Sound Simulation test and Crime Scene Reconstruction Report and stated that both the reports were in alignment with the defence of the accused as the C.B.I failed to present the report in the trial court. These report clearly established that even if the accused were sleep with their air conditioners on, during the night; the entry of the outsiders could not have been heard by the accused couple because of the rough and loud noise being emanated by the air conditioners.
  • Following this, the chain of circumstances establishing the guilt of the accused was broken to a massive extent and a violent blow was given to the prosecution’s version of the story.
  • Principle V- There must be a chain of events so complete as not to have any reasonable ground for the conclusion consistent with the innocence of accused .
  • As far as this principle is concerned, it implicates the fact that the chain of circumstances must be in alignment with the chain of evidence and inferences must point towards the guilt of the accused.
  • In Aarushi’s murder case, an initial report (labeled as “Ext. Ka 51), was made which successfully established the presence of Hemraj’s DNA on a purple color pillow cover recovered from Krishna’s residence. But a further forwarding letter suggested that there was a typographical error and the pillow recovered from Hemraj’s room was labeled as one which was recovered from Krishna’s room.[7] The High Court stated it was a “clinching piece of evidence” that indicated that Krishna was present in the flat when Hemraj was murdered.

Hence, it can be firmly extrapolated by that if the chain of circumstances proposed by both the prosecution and the defence was compared with the chain of evidences, there are multiple lacunas in regard to inconsistencies between the two. If the evidence is weighed on an abstract calculus, it implicates the situation where some outsider was present in the flat on the intervening night. Hence, the view adopted by Allahabad High Court appears to be as per the objective assessment of the situation in consideration of consistent chain of evidence. Hence, the Panchsheel rule favored the accused couple firmly.

JUDGMENT OF THE COURT- WHETHER QUESTIONABLE OR CONCLUSIVE?

Dr. Rajesh Talwar and Dr. Nupur Talwar were acquitted by the Allahabad High Court on the basis of “benefit of doubt” and the Court additionally stated that neither the circumstances nor the evidence was enough to hold the dentist couple guilty. The circumstances were inadequate and their life sentence was quashed and C.B.I had failed miserably to supplement the lacunas in the evidence.[8]

The High Court of Allahabad took recourse to Section 106 of the Indian Evidence Act and observed that it lays down only this much that if a fact is in the “special knowledge of person” and the other side could not have due knowledge of it despite exercising due diligence, then the burden of proving the fact lies on such person who possess such special knowledge. In the instant case, the prosecution was unable to prove the testimony of its key witness, Bharti Mandal, as her statements kept on changing timely. The Court stated that the prosecution failed to prove the compliances of Section 106 for proving that both the deceased victims were seen in a compromising position with each other.

The Court also criticized the “botched-up” investigation of the agencies and sporadic time lapses. The conclusive remarks of the Allahabad High Court were that the chain of circumstances stood snapped the moment and prosecution failed to prove by cogent and reliable evidence that appellant’s flat was locked from inside.”

CONCLUSIVE PRECEDENTS CITED (IN DICTA)

Apart from Sarad Birdichand Sarda v. State of Maharshtra[9], the Allahabad High Court cited two more precedents in support of their view which are as follows:

In Kali Ram v. State of Himachal Pradesh[10], the Apex Court put forth the view that another golden thread which runs through the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and another to his innocence, “the view which is favourable to the accused should be adopted”.

In M.G. Agarwal v. State of Maharashtra[11], the Apex Court held that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt.

In view of Article 141 o the Constitution of India and as per the circumstances objectively proposed in this case, the two precedents cited by the bench stood in favor of the accused couple and lead to the inference of their innocence and their entitlement to the benefit of doubt.

CONCLUSION

All in all, it can be firmly extrapolated that Aarushi Talwar Murder Case went on being an epitome expression of what we today call as “The Perfect Murder Mystery.” Notwithstanding the fact of presence of voluminous evidences and exhibits, the abstract calculus of evidence was very intricate to be drawn since the chain of circumstances must be in alignment with the chain of evidences. However, while reading the both Ghaziabad Trial Court judgment and the Allahabad High Court Judgment, the reader feels that the latter judgment is more precise and accurate as precedents cited by the bench were very much in consonance with the circumstances proposed in the present case.

Recollecting the abstract at the beginning of this paper, it is mentioned that every human reacts differently to different situations. In this case, the reasoning which was given in the Ghaziabad Trial Court was that the conduct of the accused couple was not palatable as it is a natural act that if parents see the dead body of their daughter, they will not hug her”. This reasoning appears absurd and out of line.

Since reactions of humans are different, they conduct themselves differently. This could also be questioned regarding the conduct of investigative agencies as many Investigating Officers were changed and each officer conducted the investigation in his own manner; which lead to “botched-up” circumstances. The circumstances were so botched up that even today the veracity of murder weapon is not corroborated and the murderer remains absconding and Aarushi’s soul still thrives for justice.


[1] Batuk Lal, The Law of Evidence, Central Law Agency, (22nd Edition), Page 64.

[2] AIR 1973 SC 2622.

[3]  V.G. Padubidri, Shaw’s Textbook of Gynaecology, (16th Edition), Page 9.

[4] Batuk Lal, The Law Of Evidence, Central Law Agency, (22nd Edition), Page 70

[5] AIR 2017 SC 695

[6] 2015 Cri LJ 2036, Page 2039.

[7] Aniruddha Ghoshal, Aarushi Talwar Murder Case: Key Evidences That Caught Attention, available at: https://indianexpress.com/article/india/aarushi-talwar-murder-case-rajesh-nupur-talwar-hemraj-noida-cbi-key-evidences-that-night-at-flat-l-32-4900539/ , last seen on 03/09/2020.

[8] Amita Verma, Aarushi Murder Case: Benefit of Doubt to Talwars Help,available at: https://www.deccanchronicle.com/nation/current-affairs/131017/aarushi-murder-case-benefit-of-doubt-to-talwars-help.html , last seen on 03/09/2020.

[9] AIR 1973 SC 2622.

[10] AIR 1973 SC 2773.

[11] AIR 1963 SC 200.


LEGAL IMPLICATIONS OF E-BANKING IN INDIA

BY: Uddeshya Yadav

INTRODUCTION

In the world right now there are so many smartphones user and they are rapidly increasing day by day and almost all smart phone users are using E-banking facility provided by the banks and in this pandemic time when we were in the home in the lockdown period if we have to do any transaction we have taken the help of E-banking. E-Banking is also called from different names such as Internet banking and online banking.

Daniel has defined “E-banking as the delivery of Banks information and services by Banks to customers via different delivery platforms that can be used with different terminal devices such as a personal computer and a mobile phone with browser or desktop software, telephone or digital television”.

E-banking has also been defined “as the delivery of banking services through the open-access computer network the internet directly to the customer’s home or private address and services. It entails the availability of resources such as online account control, fund transfers, and the purchase of financial goods or services”.

ADVANTAGES AND DISADVANTAGES OF E-BANKING

We all are using E-Banking facility nowadays and most of them have experienced some good things and bad things about E-banking. The advantages and disadvantages of E-banking are-

Advantages of E-Banking  

1. Convenience: It is difficult for a person to find time to go to the bank to check their account balance, interest rates, good money transfers, and other updates in this busy and hectic world. For consumer convenience, the banking sector has created a virtual banking system in which a person can access their banking system at any time and from any place. When there is a banking holiday, the money cannot be exchanged in a variety of ways. The online banking system has provides ease by providing 24 hours and 365 days services. It resolves issues faced by the customers during the traditional banking system. An individual doesn’t need to stand in queue for any money deportation and transfer.[1]

2. Transfer service: The virtual banking system offers the ease of 24-hour money transfer in 365 days. You don’t have to stick to any exchange within operating hours, as you can do in 24 hours according to your preference.

3. Monitoring service: The customers can access their updated passbook anytime for monitor their transactions to manage their financial plans.

4. Online bill payment: For paying bills, you don’t have to wait in line as it has the functionality to pay any kind of bills like power, water supply, telecommunications, and other bills.

5. Quality service: By supplying them with the ease to execute their transactions at any point of the day, Internet banking has increased the efficiency of services. Without physically visiting the banks, customers may apply for loans, insurance, and all other services, which demonstrates that the standard of e-banking is fast and productive.

6. High liquidity: Basically the biggest advantage lies in this thing that you can transfer money from any place of the world you need not go to the bank personally.

7. Low-cost banking service: Reduced Internet banking makes for a higher standard of services to lower running costs. This delivers luxury at a cheaper cost of elevated customer service. The bank charges the minimum sum for operations that represent the reasonableness and quality of e-banking services.

8. High-interest rates: In comparison to banks, internet banking offers lower interest rates on home loans. The operational costs are also modest, allowing the company to save money for its clients. Other features include a no-minimum-balance account, which makes it easier to keep a zero-balance account. It increases the total disposable income of the consumers without even worry about maintaining a minimum balance.[2]

Disadvantages of E-Banking

1. Security issues: Internet banking is fully vulnerable as there are several website-related issues and hackers will hack info. It will add to financial losses for consumers. Financial information that can also cause financial losses can also be stolen.

2. Lack of direct contact between customer and banking officer: For handling user issues, online banking necessitates effective customer service. Customers, on the other hand, are disappointed by a lack of customer service. Due to technical issues, some online payments may not be reflected in the system. It also gives customers a sense of insecurity. Thus the lack of support from customer service executives is a barrier in online banking.[3]

3. Transaction problem: Customer face many problems in regards to the transaction sometimes it happens that the money has gone and it is showing transaction failed and sometimes the money actually does not transfer.

4. Long procedure to access e-banking: Government banks in some countries provide internet banking by filling out an internet banking form, which is then approved, after which you can access a security password to log in. A person must first download the software for the particular banking service, after which all passwords must be entered in order to successfully log in.

5. Training and development: Banks must conduct employee training and development programs in order to provide high-quality online resources that improve the customer experience. Training them to provide reliable care necessitates a significant financial commitment.[4]

LEGAL PROVISION RELATED TO E-BANKING

There are several provisions in relation to E-banking and it has been mentioned in different acts such as: Information Technology Act, 2000, Negotiable Instrument Act, 1881, Income Tax Act, 1961, Indian Penal Code, 1860 to secure security.

Information Technology Act, 2000:  In the Information Technology Act, 2000 has several provision related to E-Banking and the section 3(2) of the IT Act[5] talks about that they allow the use of asymmetric cryptosystems and rough electronic document authentication functions.

Section 4 of the Information Technology Act states about the Legal recognition of electronic records — Where a statute requires that information or other matter be in writing, typewritten, or printed form, such provision shall be considered fulfilled whether such information or matter is– (a) rendered or made available in an electronic form; and (b) open so that it may be used for future reference.[6]

Section 72 of the Act [7]has stated about the punishment and penalty given to the person that has received the information without the consent of the person whose information it was actually and the person has disclosed the information and he has breached the privacy of another person and he will be given the punishment of imprisonment of two years or he has to pay fine of rupees which can be extended to one lakh or he will be liable for both.

Section 79 states about the immunity of a network service provider from responsibility under different circumstances as data pass across their network.

Negotiable Instrument Act, 1881: In Negotiable Instrument Act, 1881 there is only one provision related to E-Banking which is section 6. This particular section states about cheque. The Cheque is a paper that orders a bank to transfer a certain sum of money from the account of an individual to the account of another person or business on behalf of whom the cheque has been made or given. Section 6 of the Negotiable Instrument Act is having expressions which is stating about a cheque in the electronic form and truncated cheque. The expression has been explained as-

“A cheque within the electronic kind suggests that a cheque drawn in electronic kind by mistreatment any computer resource and signed during a secure system with digital signature”.

 A truncated cheque is one that is truncated over the process of a clearing period, either by the clearing house or by the bank, whether paying or accepting payment, as soon as an electronic image for delivery is produced, obviating the need for the cheque to be physically moved.[8]

Income Tax Act, 1961: Basically in Income Tax Act there is also provision which is related to the E-banking is section 40 A. The main aim behind the introduction of Section 40 A of the Income Tax Act, 1961, includes the payment to designated accounts to verify tax avoidance. In the case of a transfer of funds, the transfer of funds only takes place between the accounts listed and serves the same function as a crossed cheque or crossed bank draught.

Indian Penal Code, 1860: Under Indian Penal Code 1860 there are several provisions as there is section 383,379,406,417,471,500 which is related to E-banking.

Section 383 states about Punishment of Extortion [9]in this section it simply says that if any person who is inducing someone to put any property or he will publish some defamatory statement he will be liable to fine or he will be liable to imprisonment or he will be liable for both the punishment.

Section 379 of the Indian Penal Code, 1860 states that if any person who has taken the electronic records or any goods out of the possession of the owner then the person will be liable for the punishment which can be  three years punishment and it can also be fine in these type of cases or both can be given.

Section 417 has told about the punishment for cheating the punishment for cheating is imprisonment which can also extend to one year or fine or both.[10]

The Indian Penal Code, Section 471, Using a counterfeit document or electronic record as legitimate- Anyone fraudulently or dishonestly uses as genuine any document or electronic record that he believes to be forged is subject to a two-year jail sentence, a fine, or both.[11]

Section 500 of the Indian Penal Code describes punishment for Defamation. Defamation simply means to injure the reputation of someone either through written format or through oral statement. The punishment for the defamation is imprisonment and which can extend to up to two years and the fine can also be imposed and both can also be applied.

The punishment is given because the image of the person or you can say the reputation has been damaged the person or the company. The person who is publishing or he knows that the statement said by him is fraudulent.

Section 506 of the Indian Penal Code states about the punishment of Criminal Intimidation and it has been stated in the act as: A individual that uses electronic means to endanger another person’s identity, health, or property in order to force that person to do an unlawful act or prohibit him from doing anything that is lawfully required of him is punishable by up to two years in jail, a fine, or both.[12]

Section 406 of the Indian Penal Code simply states that just one thing should be considered, and that is that someone who violates another person’s identity, health, or property by electronic means should be punished by detention, which can be increased to two years, or a fine, or both, whether that person is induced to perform an unethical act or prevented from performing an act that is constitutionally binding on him.

CONCLUSION

There is no doubt that every bank is providing E-banking facility and it is widely used as it is provided and it is convenient for all of them but there are some facing privacy concern and securities issues and there is a threat also. If talking about E-banking there are now many heavy securities such as firewall etc. which keep protected our information and no one is allowed to access and if somehow they have broken the law then we have several acts in which several provision are related to punishment if any one of them does anything wrong.


[1] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/  (Visited on January 24, 2021).

[2] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/ (Visited on January 24, 2021).

[3] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/  (Visited on January 24, 2021).

[4] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/  (Visited on January 24, 2021).

[5] The Information Technology Act, 2000 ( Act 21 of 2000)

[6] The Information Technology Act, 2000 (Act 21 of 2000)

[7] The Information Technology Act, 2000 (Act 21 of 2000)

[8] Negotiable Instrument Act, 1881 ( Act 26 of 1881)

[9] Indian Penal Code, 1860 (Act  45 of 1860)

[10] Indian Penal Code, 1860 (Act 45 of 1860)

[11] Indian Penal Code, 1860 (Act 45 of 1860)

[12] Indian Penal Code, 1860 (Act 45 of 1860)


“NEW LABOUR CODES, 2020 – WHAT CHANGES FOR WORKERS AND EMPLOYERS?”

By- Priyam Agarwal

India is a country with a labour force of around 500 million[1]. The term ‘labour’ means the amount of physical and mental work done for wages. The significance of the regality of labour and the need for ensuring the interest of human labour has been cherished in Chapter- III of the Indian Constitution (Articles 16, 19, 23 & 24) and also Chapter IV (Articles 39, 41, 42, 43, 43A & 54) keeping in line with Directive Principles of State Policy (DPSP) and Fundamental Rights.

Labour is a subject in the concurrent list under the Constitution of India and thus both the Central and State Governments have competence to enact legislations regarding labour. Due to this, a large number of labour laws have been ratified till date related to different facets of labour namely, occupational health, fixation of minimum wages, safety, resolution and adjudication of industrial disputes, employment, mode of payment of wage, gratuity, provision for payment of bonus, etc. 

The central government has stated that there are over 100 state and 40 central laws regulating various aspects of labour such as the resolution of industrial disputes, working conditions, social security and wages[2].

The Indian labour laws were too many which have led to confusion and overlapping. The labour laws existing in India were archaic, too many, often contradictory and badly administered. The existing labour laws were very old and thus they need a reconsideration. The labour laws enacted in India have been added in a piecemeal manner, this has in-turn resulted in these laws being extemporaneous, mutually at odds with assorted definitions, complicated and containing outdated clauses.

Justice N Anand Venkatesh had observed in 2019 in the case of The Management Of Sny Autotech Pvt. Ltd. vs The Inspector of Police” while hearing a case at the Madras high court: “Industrial laws available in this country have become archaic and unfortunately have not changed with the fast changing environment in the industry” [3] .

Various studies have discerned that labour enforcement in India has been feeble and has not been able to protect workers sufficiently, the success of collective bargaining has been low due to lack of recognition to bargaining agents, and also the coverage of labour laws has been sparse[4]. The Periodic Labour Force Survey Report (2018-19) stipulates that 70% of regular wage/salaried employees in the non-agricultural sector didn’t have a written contract, 52% did not have any social security benefit and 54% were not eligible for paid leave[5].

The major challenge in labour reforms was to facilitate employment growth while protecting worker’s rights. The government have to harmonise between the rights of workers and economic recovery. Favouring one over the other will influence the Country’s prospects in the distant future. In 2019, the Ministry of Labor and Employment introduced four bills with an aim to consolidate 29 central laws and thus replace the 29 existing labour laws. 

Out of these four bills, one was passed in 2019 (“The Code on Wages”) and the other three were referred to the Standing Committee on Labour. The three bills were reinstituted after incorporating 174 out of 233 recommendations given by Standing Committees[6] in 2020. The Union government has recently codified 29 central enactments into four labour codes namely the:

  1. The Code on Wages, 2019
  2. The Industrial Relations Code, 2020
  3. The Code on Social Security, 2020
  4. The Occupational Safety, Health and Working Conditions Code, 2020

These labour codes have been proposed on the recommendation of the Second National Commission on Labour (NCL). This commission found existing legislations to be complicated, with obsolete provisions and incoherent definitions [7].

Objective for New Labour Codes: 

  1. To simplify and modernize labour regulation as labour laws in India remain extremely complicated.
  2. Less complexity, simplifies access to numerous provisions of the law by the employees and employers.
  3. Ease of compliance by removing multiplicity of definitions and authorities without compromising wage security and social security of workers.
  4. Accountability and transparency, and uniformity in definitions and approach. 

The Code on Wages was passed by the Parliament and this code received the President’s assent on 8th August 2019. The implementation of this code was the first milestone in labour market reforms and it subsumed 4 existing central labour laws, namely the Payment of Wages Act, 1936, Minimum Wages Act, 1948, Payment of Bonus Act, 1965 and the Equal Remuneration Act, 1976. The Code on Wages legislates on wages and bonus and aspects relating thereto. The fixation of minimum wages has received a long overdue review under the Code on Wages, 2019. 

The three (3) remaining labour codes were passed by the Parliament on September 23, 2020 and thereafter received the President’s assent on September 28, 2020. 

An overview of the three (3) new labour codes passed in 2020 is provided below:

[A]. The Industrial Relations Code, 2020 (“IR Code”)

The IR Code subsumed and combined the features of three (3) erstwhile laws, namely – The Trade Unions Act, 1926, Industrial Employment (Standing Orders) Act, 1946 and Industrial Dispute Act, 1947.This code will energize the industry and would spur economic activity. It aims to free employees from the constraints of earlier labour laws.

The Industrial Relations Code has rightly embraced the definition of industry propounded by the Supreme Court in 1978 in the case of “Bangalore Water Supply and Sewerage Board v. A. Rajappa” [8]. This Code has made the formation of unions difficult and also placed restrictions on the right of workers to go on strike. This code seeks to consolidate and amend laws relating to: Trade Unions, conditions of Employment (Hire and Fire Policy) on industrial establishments, settlement and investigation of industrial disputes:

  1. Increased the threshold for retrenchment: The government has hoisted the threshold on the number of employees needed in an organization for the layoff, retrenchment and closure of establishments without the approval of government to 300 from 100 employees, and allows the government to increase this limit further by notification.

The Standing Committee on Labour, in its report submitted in April, had also proposed hiking the threshold for lay off, retrenchment and closure to 300 workers, noting that some state governments like Rajasthan had already increased the threshold and which, according to the Labour Ministry, has resulted in “an increase in employment and decrease in retrenchment”[9].

The Labour Minister, Mr. Santosh Gangwar informed the house that: As many as 16 states of India had already increased the threshold for closure, lay off and retrenchment in forms with upto 300 workers without government permission.

According to the Central Government, this step would encourage the investors to set up big factories and employ more and more workers and the limit of 100 was not good for employment generation as it discourages the employers to recruit more workers. 

But this step will significantly improve the ease of firing of employees by the employer. It will attenuate the rights for workers in small establishments which have less than 300 workers as they would not get the protection of labour laws and trade unions.

  • Conditions for carrying out a legal strike: Now to conduct any strike, prior notice (60 days prior to strike) to the employer is mandatory if proceedings are going on in any tribunal and also to give 60 days’ notice if the proceedings are concluded. 

This step of broadening the permitted time frame before the workers can go on a legal strike will make a legal strike almost impossible. This would make workers vulnerable to exploitation and their freedom of speech might be restricted.

Till now, a worker employed in a public utility service cannot go on strike unless he gives notice for a strike within 6 weeks before going on strike or within 14 days of giving notice, but this new IR code makes this rule applicable for all the industrial establishments. This notice would be valid for a maximum 60 days.

3. Standing Orders: Previously, standing orders i.e., forming service rules for workmen was compulsory for employers if he hires equal to or more than 100 employees. This limit has now been increased to 300 workmen.

Standing order pertains to the classification of workers, manner of intimating to them period and hours of work, holidays, paydays, shifts, conditions for leave, termination of employment, rules of conduct for workmen, and the means available for redressal of grievances.

According to the Central Government, without the need of a standing order in industrial establishments due to the raised threshold, the process of hiring and firing workers will be more flexible and faster for employers which would result in increased employment. 

But, it will water down the labour rights for workers in small establishments having less than 300 workers and would enable companies to introduce arbitrary service conditions for workers, dismissal and alleged misconduct and retrenchment for economic reasons will be easily possible which will lead to complete demolition of employment security.

4. Recognition of trade unions: If there is one trade union in an establishment then it would be the sole negotiation union. But, if there are more than trade unions in any establishment, the union which has the support of the majority with 51 % employees will be the negotiating union. If the unions do not qualify this criterion, the employer must establish a negotiation council.

5. Fixed term employment: This gives employers the flexibility to hire workers based on requirement to a written contract. Fixed term employees should be treated on par with permanent workers. It includes matters related to hours of work, wages, allowances and other benefits such as gratuity.

6. Grievance Redressal Committee: In any establishment employing 20 or more than 20 workers, there should compulsorily be a Grievance Redressal Committee for quick redressal of the disputes arising in the establishment.

To reskill retrenched workers, employers will contribute worker’s last drawn 15 days’ pay. This step might help workers and the workers could work with good efficiency without any pressure. 

[B]. The Code on Social Security, 2020 (“SS Code”) 

This code replaced 9 labor laws relating to social security, retirement and employee benefits. This code expanded the definition of employees and it now includes inter-state migrant workers, gig workers, platform workers, film industry workers, etc. This code also increased the scope of ESIC (Employees State Insurance Corporation) and EPFO (Employees Provident Fund Organization) schemes. 

Till now, only the workers of the organized sector were given social security but now a significant change is brought by this labour code:

  1. Universal Social Security: This code provides universal social security to all workers for the very first time, including the unorganized and the gig workers (temporary workmen, e.g.: delivery boys) and platform workers. Due to this code, social security is provided to over 90% of India’s total workforce.

Gig workers are basically workers working in a job related to online platforms, independent contractors, on call workers, etc.

2. National Social Security Board: A National Social Security Board will be formed which shall recommend to the Central Government for formulating suitable welfare schemes for different sections of workers which can benefit them by providing comprehensive social security relating to Provident fund, employment injury benefit, housing, educational schemes for children, etc.

3. Contribution of annual turnover: The employers employing gig workers would have to necessarily put up 1-2 % of their annual turnover for social security of workers. This will also lead to upliftment of social security of gig workers.

4. National Database: Under the “SS Code”, there is an aim to make a national database for unorganized sector workers and the registration of all the workers would be done on an online portal on the basis of Self Certification through a simple procedure.

5. ESIC and EPFO benefits: The facility of ESIC which is provided in 566 districts hitherto will now be provided in 740 districts. Till now, EPFO’s coverage was applicable only on establishments included in the Schedule, now it would be applicable on all establishments having 20 workers.

6. Gratuity: Provision for Gratuity has been made for Fixed Term Employee and there would not be any condition for minimum service period for this.

[C]. The Occupational Safety, Health and Working Conditions Code, 2020 (“OSH Code”) 

This code consolidates 13 existing acts such as Factories Act, 1948, Dock Workers Act, 1986, Contract Labour Act, 1970, Inter State Migrant Workers Act, 1979, etc. This code aims to consolidate and amend the laws regulating the occupational safety, health and working conditions of persons employed in an establishment and related matters. This code empowers the companies to employ the labour on a contractual basis and also to increase the term of contract for any number of times and for any amount of time required.

  1. Inclusion of interstate migrant workers in the definition of worker: A worker who is earning upto 18000/- per month and has come on his own from one state and obtained employment in another state will be treated as an interstate migrant worker and would be provided the benefits of a migrant worker i.e., PDS, building cess, insurance and provident fund.
  • Promotes formalisation: The mandatory requirement of issuing of appointment letters by the employer of an establishment will promote formalisation in employment. This step of formalising employment will provide appointment letters which can be used as a proof of experience in other employments.
  • Journey allowance: A aggregate amount of fare is to be paid by the employer for to and fro journey to the employee’s native place from the place of employment. It will reduce burden on employees.
  • Single License: This code will allow a single license for staffing forms to hire workers on contract across different locations instead of multiple licensed ones required till now.
  • Expansion of Definition of factory: The Factory Act, 1948 defines any manufacturing unit as a factory if it employs 10 workers and uses electricity or 20 workers without using electricity power. Now the threshold is being raised to 20 and 40 workers respectively.
  • Women employed in all establishments for all types of work: Women can work in any establishment and it’s the employer’s responsibility to provide adequate safeguard and conditions relating to safety, holiday, working hours with their consent. It would help in increasing women participation in the labour force and address gender bias in wages. 

But the Code does not formulate the preventive measures that employers have to bring into being before allowing women to work at all hours. Also there are no harsh penalties for violations laid down in the code.

According to the World Bank, with less restrictive laws, India could approximately add on an annual basis “2.8 million more good quality formal sector jobs” [10]. Economic Survey (2019-2020) points out that: Units in states that have made the transition towards more flexible labour markers were 25.4% more productive than their counterparts[11].

This simplification of numerous labour laws is a great step forward and these new labour codes are a very big and much required reform for India labour laws. These new labour codes will make noteworthy changes to regulation of labour and the relationship between employer and employee. These labour codes are “historic” because they come after nearly a century. These codes would provide basic security to unorganised workers and will also lead to business growth.


[1] https://data.worldbank.org/indicator/SL.TLF.TOTL.IN?locations=IN

[2]  List of Central Labour Laws under The Ministry of Labour and Employment, The Ministry of Labour and Employment.

[3] W.P.No.23427 of 2018 and W.M.P.No.27342 of 2018

[4] “Reorienting policies for MSME growth”, Economic Survey 2018-19

[5] Periodic Labour Force Survey Report (2018-19), The Ministry of Statistics and Programme Implementation, June 2020

[6]  http://www.legalserviceindia.com/legal/article-3932-new-labour-codes-2020.html

[7] Report of the National Commission on Labour, Ministry of Labour and Employment, 2002 (http://www.prsindia.org/uploads/media/1237548159/NLCII-report.pdf)

[8] The 1978 verdict said that any establishment would fall under the definition of an industry if an employer-employee relationship existed and there is systematic and organized activity ([1978] 2 SCC 213)

[9] https://indianexpress.com/article/india/firms-with-up-to-300-workers-can-hire-and-fire-without-govt-nod-bill-in-lok-sabha-6602928/

[10] https://www.hindustantimes.com/india-news/understanding-the-new-labour-codes/story-llI015EZK8EYtDHmP9SXVP.html

[11] https://www.indiabudget.gov.in/economicsurvey/

NATIONAL EMERGENCY IN INDIA: ARTICLE 352 UNDER THE CONSTITUTION

By- Aaditya Sinha

Introduction

There is a high probability that the youth of this country may not be interested in politics or any political topic. However, even if one is interested in politics or not, there is a high chance that he/she has heard the word “Emergency”. This, author thinks should be termed as a “National Political and Unity word”.

The reason is because this is probably a common word used by both “Ruling party” and “Opposition” now. If one has a little bit of interest and idea in politics, he/she should be well aware of the fact, that one of the most common criticisms towards this government is that they are trying to stop those people or organizations who are criticizing the government.

Whenever the government faces accusations like these, they have a shield which is a word (No points, for guessing its EMERGENCY). They use this as a shield because in India, till date, three times “National Emergency” has been imposed and all three times the ruling party then is the opposition party now.

The opposition now, however always replies back with a counter which again is this word “Emergency” and they say “Today there is undeclared Emergency”. This is the reason why the author feels this “Emergency” is the word that unites them.

In India, there can be mainly three types of “Emergencies”, one is “National Emergency” [Defined in Article 352 of Indian Constitution], State Emergency [Article 356 of Indian Constitution], and Financial Emergency [Article 360 of Indian Constitution]. In this article, we are going to discuss the National Emergency [Article 352 of the Indian Constitution].

Grounds of National Emergency: Present

In Article 352 of the Indian Constitution, “Proclamation of emergency” is defined.  The law says that the President of India can proclaim “National Emergency” on three grounds, which are War, External Aggression, and Arm Rebellion. 

War and External Aggression:  These two terms which look similar, are actually quite opposite in their meaning. For example, let’s assume there are two countries “X” and “Y”, and if both of them have decided and given a “Formal Declaration” that they are going to use “Armed forces” against each other, then it is called as “WAR” and suppose if say country X attacks on country Y without any formal declaration then it can be said as that Country Y has been attacked by the External Aggression of Country Y.

It should be noted that if the emergency has been given by “War and external Aggression” then it is known as “External Emergency” and if it is proclaimed by “Armed rebellion” then it is known as Internal Emergency.

Procedure to proclaim National Emergency

The procedure starts from the cabinet which constitutes Council Minister and Prime Minister. If the Prime minster on the advice and aid from Council Ministers feel that “National Emergency” should be proclaimed then they send a “Written advice” to the president, if the president is satisfied by the “written advice” then he can proclaim or declare the “National Emergency”. 

However, it should be noted, that the president can proclaim a national emergency but if that emergency is going to be continued or not is decided in Parliament. Here, parliament means [Lok Sabha +Rajya Sabha]. This is decided by “Special Majority.

Now, a special majority is calculated as “50% of the total strength of both Lok Sabha and Rajya Sabha + 2/3rd of the people present in both Lok Sabha and Rajya Sabha. [This type of special majority is mentioned in article 368 of Indian constitution]

If both the houses of Parliaments approve the decision, then National Emergency will be valid for “six” months.  This duration of six months is important because it gives room to the president to revoke the emergency if he feels that the emergency should be revoked.

For example, suppose in the month of March the president has decided to proclaim an emergency then, in the month of September [completion of six months], the validity of that emergency will be over. Now, if the president wants to proclaim the emergency again then the whole procedure will have to follow once again.

History of National Emergency and the need of 44TH Amendment

I suppose and hope that you must be wondering that to proclaim emergency is actually a big deal, but this was actually the motive of the 44th Amendment of the Constitution. Now, before we understand the amendment, we have to understand the history, and why is that history is still a very relevant topic in any election which happens in our country.

As the author mentioned above, National Emergency has been proclaimed three times in our Country, however, the first two times the reasons were War and external Aggression. However, the third and till today, the last National Emergency was proclaimed on 25th June and it happened because of “Internal Disturbance”, this might be a new term for you guys, but you should understand that whatever the rules were there in that time have now changed and we are trying to understand the reason behind that change or more technically “Amendment”.

So, on 25th June 1975, President proclaimed an emergency on the grounds of “Internal Disturbance”. There is a background story behind this, and the story can itself be a topic, but here we are going to talk about the background in the minimum possible way.

So, in June 1975 Allahabad High Court had said that the then Prime Minister of India is liable for corrupt practices and she is disqualified to hold a position in a public office for the next six-years. The opposition then mostly led by “Loknayak Jayprakash Narayan” and “George Fernandez” wanted a resignation from the prime minister, but the government of that time went on to a full “Totalitarian mode”.

The Prime minister without having a formal meeting with the Council of the minister with the help of the president proclaimed “National Emergency” on the night of 25th June, and most of the opposition leaders were in jail, all fundamental rights were scrapped, press censorship was all over India.

There was no judicial review for the president’s decision to proclaim National Emergency [38th Amendment]. This emergency was revoked on 23rd march 1977. In 1978 when the new government was formed, 44th amendment came and its main focus was to make the laws regarding the proclamation of National emergency more difficult and its revocation easier. One of the major changes in the 44th Amendment were are as follows:

In Minerva Mill case, the court said that the President’s decision on the grounds to proclaim “National Emergency” is final and conclusive and it is not entertained to “Judicial Review”. However, this was changed in the 44th Amendment.

The term “Internal Disturbance” was changed to “Arm rebellion”. The voting in the parliament needed was earlier “Simple Majority” but in 44th Amendment it changed to “Special Majority”. The reason to have a special majority was again to ensure that the procedure of emergency should not be simpler, and it should be more democratic in nature so that in the future no government who wants to make the government totalitarian in nature should not happen.

Another major change in the 44th amendment was that Article 19 (Freedom of speech and expression) should be revoked only if a National emergency is proclaimed on the grounds of “War” and “External Aggression” and not “Armed rebellion”. 

This is mentioned in article 358 of the Indian Constitution. Also, it should be noted that in any case, Article 20 and 21 of the Indian constitution shall not be revoked.  Also, article 19 immediately suspends if a national emergency is proclaimed except if the ground is of Armed Rebellion”, rest all Fundamental rights are dependent on the president, and Article 20 and 21 cannot be revoked. 

Apart, from all these amendments there was another landmark case, which we can talk about in detail in another blog, is of “Kesavananda Bharti V. State of Kerala” in which the court said that Parliament could amend anything in the constitution without actually changing the “Basic structure of the constitution”.

Conclusion

Today, we are living in a polarized world, thanks to social media where people are fighting with each other, on issues like India is becoming an “Authoritarian state”, a state where we are following fascism.

The author does not have any objection with opinions, neither has any problem towards criticism of the government. He also believes that there are many political leaders who spread hate through their speeches, however, our motive should be to bridge the gap between the ideologies, and probably the best example one can give to a person who feels that one day our country will become a Fascist country, is the full episode of “National Emergency”, where the ruling party tried their best to make their rules, failed to do so, because of the structure of our Constitution. So, whoever may be in the power, whatever they can amend in our constitution, but make a note they cannot change the basic structure of the Constitution”

Another Nirbhaya loses the fight of life. Will ‘Nirbhaya’ of Hathras get Justice?

-By Jayraj Deshpande

The mention of the name ‘Nirbhaya’ makes us momentarily travel back in time to 2012. A Delhi girl, in a moving bus, was assaulted and raped savagely. Beaten and bruised and suffering various other internal injuries, the infamous plight of Nirbhaya and her mother is well remembered. Jyothi Singh who had now become Nirbhaya fought ferociously to stay alive but in vain. Her one final request was for her perpetrators to be punished for their crimes.

Now the justice had to be served, and the task was in the hands of our mighty justice system. The accused were guilty of various offences within our penal code. It was simple, gather the evidence, file the charge sheet and deliver justice. Everything was evident and the evidence and the autopsy complimented each other perfectly. The accused were certainly guilty of rape and murder. The fast track court even found them guilty of murder, rape, and theft and many more offences.  In 2013 he fast track court awarded death penalties to all the accused.

The monsters who without guilt had taken away the peace of Jyothi Singh’s family now were realizing their own fate; the last gasp attempts from the convicts were desperately pathetic as they stretched their arms out for some kind of help as the whole nation was praying for justice. Finally, on 22nd of January 2020, Supreme Court signed the death warrants of all four convicts. The death sentence got postponed until, finally, on March 20, 2020 the convicts were confirmed dead by hanging.

But is the justice really served? Why did it take seven years for these inhuman criminals to be punished? Why such a delay when the evidence was crystal clear? Does this delayed death sentence serve its purpose of creating fear in the minds of the possible criminals? The answer to this is simple and clear, No, the justice hasn’t been served, we have failed to fulfil Nirbhaya’s final wish. Sure, the monsters of her story don’t live anymore but what about the evil that prevails in our society. What about all the heinous cases that still happens in our country. After the Delhi rape case India instead of working its way up the ladder of development and protection of its citizens has spiralled further down to become a country of crimes and poverty. The cases have skyrocketed since then, and even if it might have seemed impossible back then but now, we know the heinousness has only increase with the increased cases.

After the devastating cases of Priyanka Reddy, the Unao incident and many more once again a ‘daughter of India’ lost her life in Hathras. A 19-year-old Dalit girl was raped and almost killed by one of the accused. It later came to light that no arrests were made until after 10 days of the incident. In three different statements recorded before her death, the victim mentioned in all three statements that she was raped and was strangulated when she resisted. Its been more than a month since the incident and during this time period the way the police and the Uttar Pradesh state government handled this matter is pathetic. The police burned the victim’s body without the permission of the victim’s family and later threatened the family about changing their statement. The duty of the police is to bring the criminal in front of the court but instead they are indulging in shameful acts like burning the victim’s body and having a good time while doing it as witnessed in a video. The case has been transferred to the Central Bureau of Investigation but still so far, no conviction has taken place. Apparently, no rape took place and there was no evidence from the autopsy.

 Will she get the justice she deserves or will this also just be a story in the news channels for 4 days which will leave the parent of every girl in the county in fear? How many more of us need to die in order for our nation to wake up and take some strict action. The truth is that there is no justice that can be served by hanging these criminals instead we need to clean our society by awareness and education. But will our government ever think of this and take initiatives towards this cause? Highly unlikely as power is more desirable than peace and development. Nirbhaya and Hathras incidents are just the tip of icebergs. There are numerous rape cases happening all over the country but are overlooked so that the government propaganda is fulfilled.  So, yes, it pains me to say that another Nirbhaya has already lost her fight and even if justice is served it won’t matter because “justice delayed is justice denied”.

Another Nirbhaya Loses Fight of Life. Will “Nirbhaya” Of Hathras Get Justice?

-By Yashraj Srivastava

There she was laying down breathlessly with her bulging out eyes. All the area around her corpse was oozing out with rubescent blood and the Indian apparel which is considered ethnically appropriate was ripped into pieces. Such haunting imagery petrifies every woman in India and this is not only a rhetoric image but a real one. Not only such gruesome act petrifies the whole state and society but also leaves the families of victims in misery and
despair.
Rape, a crime which has been a result of male dominance and results of patriarchy morals is not new to anatomy of society, since ages it has been occurring and depicting the male dominance over female. In the era of freedom where there is a balance of equality we see many instances in where women are subject to many crimes and acts of gruesomeness which eventually demoralises the very concept of equality and freedom.
Hathras rape case was not something new to world or neither Nirbhaya’s, such acts have been happening since many ages. Rape is very much common crime in the world and people might not be aware of such. Many of the acts went unrecorded or might have escaped from clutches of media but in spurn of all things, incidents like Nirbhaya and Hathras ignites the very core of human rights as well as violates the principles of equality brewed with Freedom
and Security of Women in India. Just imagine a fact that highest number rape cases are reported in India, think how many cases went unreported? The number seems very high and
such facts leads to questions of women security as well as doubts the fundamental pillars of democracy.

Hathras incident has etched the collective memory of our country, where a group of four men of upper cast (Thakur Caste) assaulted and raped a 19-year-old Dalit girl when she was collecting fodder from near farm. The major complication arose when the corpse of girl was cremated overnight by police officials, without consent and presence of any family members.


Acts like such clearly depicts the procedural failure of the police executives. Actions of police in Hathras case was more like a sordid saga where no consent was taken from family to cremate as well as police authorities locked down all the family members and secreted from them from cremation ceremony. And that too cremation ceremony was conducted during midnight which is not a norm followed in Hinduism. The concoction of all the delinquencies by police authorities was against the law. Whereupon dying declaration by the victim was valid enough to initiate with the investigation but police authorities were mostly
inclined towards expunging the evidences. In all this a major question arises that Will Hathras victim get any justice? It took 8 years to get justice in Nirbhaya’s case, is justice so late?


The paramount question of attaining justice is a major one but when paws of justice fails then the very object of justice is taunted and diminished. The chief minister of the Uttar Pradesh, gasconaded about the state as “State of daughters” which eventually refutes and contradicts with the numeric stats of rape cases in Uttar Pradesh.


To answer the question of justice we have to analyse the crime in a psychological way, Rape cases like Nirbhaya in New Delhi, Asifa in Kashmir as well as Prinyanka Reddy in
Hyderabad and many more have one factor in common, which is the horrid intention of the perpetrators and such intention is botched up with acrimony of lust and dominance over female. Now such dominance could be subject to race, caste or gender where in the Hathras case such dominance could be botched up as ascendancy of upper caste (Thakur) onto lower caste as well as dominance of Male over a female.


What does the basic nature of justice mean? The jurisprudence of justice acclaims the very principles of equality and freedom. Crimes like rape restricts the freedom of women and diffuses the very concept of Consent. Justice is not attained by giving Compensation to the victims and capital punishment to the perpetrators. Basically such punishments are not enough to set a precedent against such nature of crime and do not create an appropriate

deterrence effect in society. But nothing more can be done in the name of justice, as no legal remedy can fulfil the irreparable injury to the victims and their family. So now the question arises that how to cure such malediction, a crime which is devouring the fundamental principles of freedom and botching the morals of society, the solution maybe lies in educating people and such solution might help in some way or other curbing the problem. Lack of
education and increase in watch of pornography builds up such mala fide intention. But then criticism arises that crimes like rape still hinders safety of women in many countries which have well educated people.


The solution according to me lies within a twofold thread that still taunts and haunts the well-being of society and hinders the safety of women. Firstly, gender dominance has been there since the times of civilization. Earlier crimes like rape were done more openly and were of a more severe nature, when one kingdom trounced another then the soldiers of the conquering side used to rape openly the women of defeated territory. And when the world was subject to two world wars, there were millions of women and children who were subject to rape. And when most of the states around the world adopted a democratic style of
governance than there emerged the concept of equality and freedom, crimes against women did not decrease but it became more private and secretive. The point which I am trying to establish is that the mentality with respect to practising dominance over female is still in cribbed in male gender. Secondly, the factor of acceptance, if we look at the anatomy of Indian society then it is highly influenced with patriarchy where male is considered as bread earner and female as majorly home maker, a Male who is Tough, Sturdy and Strong whereas Female Being Soft, Delicate, Caretaker of child. Such polarization within the society has severely affected the female side and can be seen in consequence of crime. Men accepting the equality factor in accordance with female side will establish a higher moral ground and eventually lead to reduction in crime against women. Taking all the discussed factors into
consideration and implementation of same will enhance the ambit of justice and eventually its enhance its effectiveness.


The medieval cast system induced within the Indian Society is still taunting and misbalancing the pillars of equality and freedom, as more and more crime is being done against the lower cast. The dominance of Upper cast over lower cast is still building up even after many years of Independence. Every issue is subject to political circus as well as every political party tries to fulfil their personal goals by safeguarding the interest of their communities also known as the Vote banks. Same was witnessed in Hathras Rape case, where there were constant clashes between ruling party which has a heavy vote bank from Thakur class (Upper Class) and on other side Parties in support of Dalit. Politicising issues won’t help the victim’s family as well as will not bring any such reforms in society.


One point that we all learn from the Hathras rape case is that there should be more Independency of Police authorities with implementation of police reforms. State ruling party has more control over the police, and police acting in favour state. And when cases like Hathras ignites the very core of human rights then ruling state in order to protect its image tries to curb the issue with state actors like police like in Hathras Rape case. Giving more freedom and independency to police from the clutches of State Party will eventually enhance the procedural mechanism of investigation. Justice will be more efficient if its instruments are coherent.


As one of the greatest philosopher Plato was seeking for Utopia in Greece, in today’s world we as a citizens of democracy also seek for a society which is equal, free and safe. Women are idolised in India in form of Goddesses as well as various Personalities. Acts like rape demeans the very pedestal of Goddesses and Personalities- which empowers the character of female in more exemplar sense. Hathras Rape case has definitely reminded the horrors of
2012 Delhi Gang rape case, but we have to approach to solutions in more rational and equitable way. Nirbhaya is now no more and neither Hathras victim, but justice can be
simulated in right direction and ensure that in future there is no other Nirbhaya.

Another Nirbhaya loses fight of life. Will ‘Nirbhaya’ of Hathras get justice?

-By Nikita Prabhu

Nirbhaya.

Fearless. 

That’s what the media called the victim of the gang rape in Delhi back in 2012. Eight years later we have the Nirbhaya of Hathras. 

It intrigues me. Every time a woman is raped, why is it that we call her brave? She didn’t and shouldn’t have to volunteer to be brave. She shouldn’t have to be in a world which requires her to be cautious every minute of her existence. 

Every time a woman is raped in this country, my mind is filled with just one question. Why are women constantly targeted for simply being themselves? In the aftermath of a rape or sexual assault incident, people spend hours dissecting the victim’s character than the rapist’s intention. They’d rather believe she had it coming in some way, shape or form.

Every rapist in this country has shown us that it doesn’t matter what a woman says or wears, the time or place, whether she knows the perpetrator or not- if she dares challenge his idea of what a ‘good woman’ is supposed to be, she will be ‘shown her place’. The fact that rape is about power is not breaking news. The fact that people still chose to not believe it, is. 

In our country power dynamics are influenced by a lot of factors: gender, financial status, religion, caste etc. The Hathras victim was a Dalit woman, and she was raped by four upper-caste men. The incident was initially rubbished as ‘fake news’. Some even came out in support of the accused. Because you see, our current reality is this: if you are an upper caste cis-gendered man, you are untouchable. I know. An ironic play on words, if you will. 

Never mind the fact that the Hathras victim and her family wasn’t allowed to live in peace, she wasn’t allowed to rest in peace either. Her body was cremated without the consent or presence of her family. 

Why does our collective conscience as a nation rise only when a woman succumbs to her heinous ordeal? Is it because we are forced to face the stomach-churning results of our regressive attitude towards women? Maybe. What about the countless others who live to tell their frightening tales? Why do we push for self-defence classes instead of pushing for more open conversations around sex and consent? Are encounters or death sentences going to help put an end to rapes? Or is it just a way to push these issues under the carpet instead of taking out the garbage? 

I don’t know if the Hathras victim will get justice. But justice isn’t a short-term goal. It’s a long road filled with thorns. We need a thorough cleansing of mentality. We need to take a deeper look at the systematic oppression of certain sections of society. We need to open the Pandora’s box of uncomfortable truths. It’s a lot easier to teach Karate, I know. But the road worth taking is always going to be tougher. 

Another Nirbhaya loses the fight of life. Will ‘Nirbhaya’ of Hathras get Justice?

-By Samarth Jain

21st century, yet we haven’t succeeded in keeping our women safe. Today’s primary issue of assault on women has become secondary, however, the honor and lame integrity of the community has become primary.

A little rewind into history and we come across cases that shook the entire nation and different corners of the world. Aruna Shanbaug case, Mathura Rape Case, Nirbhaya, Bhanwari Devi Gang Rape Case, Shakti Mills Gang Rape Case, Unnao Rape Case, and not to forget those millions of rape cases that go unaccounted.

The recent most addition to this hall of shame is the Hathras Gang Rape Case that instead of bringing justice to the victim, turned controversial by our leaders, yet, again failing miserably. The situation was such that the ministers and a few policemen without any proof, started blaming the victim and accused her of having sexual relations with the victim.

According to the reports, on September 14, 2020, a 19-year-old Dalit (lower-class) girl went to work in the fields close to her home, in the Hathras district of western Uttar Pradesh but never returned. Her body was found in part of a field owned by the Thakur (upper-class) neighbors, by her mother. The mother informed that she found her daughter lying naked with her tongue slit and protruding from her mouth, eyes red and bulging out and blood oozing out from her mouth and neck. The victim was also bleeding down from her vagina. As, the law states, as soon as a crime is committed, an immediate FIR must be lodged, and the victim must be taken to the nearest hospital if grievous medical-legal help is needed.

The article 164 of the Code of Criminal Procedures mandates that the magistrate must ensure a statement of the survivor. In case the victim passes away, the body, after the post mortem analysis must be handed over to the family.

The law mentioned above was blatantly neglected in the above scenario, and it turned out that the most significant criminal was the system itself. It is still unclear whether the required pieces of evidence were preserved. After the victim’s death, her body was cremated, refraining her family to take the last glance of their lost daughter. The incident, as proclaimed by Justice Pankaj Mittal and Justice Rajan Roy of the Allahabad High Court was a prima facie infringement of human rights.

After the case got into the limelight, it became an issue for political clashes and vote bank politics. The CM Yogi Adityanath, stated this to be a conspiracy of the opposition to malign his reputation. The focus soon shifted from finding the culprits to finding the political foes of the government. The officials in power became desperate and sanctioned section 144 in the area to refrain everyone from meeting the victim’s family. The DM of Hathras Mr Praveen Kumar Lashkar was caught on camera trying to convince the family of the victim to withdraw their case. Supposedly, a PR agency was also hired to spread the word that this was not a case of rape and was instead a political stunt.

The case is now taken over by the CBI which is conducting thorough research and is promising to complete the investigation at the earliest.

In a country where 88 rape cases take place every day[1] and the conviction rate is as low as 27.8%, it becomes crucial for the government to bring some police reforms which entitles them to be honest, and not a free hand. For that, political interventions should stop and the policemen be allowed to do their duty with honesty.

Another loop hole which exists in our country is the forensics and the tools of investigation.

Over 12, 000 rape cases are pending due to the backlog at forensic labs, and only 3 out of 6 central forensic labs in India have the facility to test DNA samples[2]. In this case, forensics were done after 14 days which becomes quite misguiding as according to sciences there is a short duration of time for which semen stays in the body.

For Justice to prevail, the abuse which occurred on the body of the victim should be given prime importance instead of the religion, caste and the politics. We, as active citizens should stand up to the cause and for what is right and must trust our judicial system.

Everything has been said already, but as no one listens, we must always begin again.[3]


[1] Crime in India – 2019. https://ncrb.gov.in/sites/default/files/CII%202019%20SNAPSHOTS%20STATES.pdf

[2] Over 12,000 sexual assault cases pending due to backlog at …. https://www.hindustantimes.com/india-news/over-12-000-dna-samples-from-sexual-assault-cases-pending-examination-at-forensic-labs/story-AzD26fBHTEibaUu7OKinoN.html

[3] GUARDADO v. JONES | Supreme Court | US Law | LII / Legal …. https://www.law.cornell.edu/supremecourt/text/17-7171