BENEFITS PROVIDED UNDER EMPLOYEES’ STATE INSURANCE ACT, 1948

By- Anjanee Goel[1]

The persons who are provided benefits under the Employees’ State Insurance act, 1948 are called the insured persons. There are various benefits provided to such insured persons such as sickness benefit, cash advantage, benefits on disability and dependency, and maternity benefits. These benefits are funded by the continuous contributions made by both the employers and the employees. The Employee State Insurance scheme provides all kinds of care to the employees who get themselves registered under the act when he is incapable to restore his health and working ability. The act also accommodates financial aid to such employees who are unable to visit the industry premises due to sickness or injury whether maternity or employment. The scheme provides benefits to the employee as well as the employee’s family during hospitalization.

According to rule 2 (7A) of The Employees’ State Insurance (Central) Rules, 1950, the advantages accessible under the Employee State Insurance Scheme are connected to the standard benefit rate which is thusly connected to the ‘average daily wages’ of the workers. Section 46 of the act describes the various Social Security benefits provided under the Act.

Sickness benefit:

After carrying out 9 months in insurable service, each and every protected employee is qualified for the cash advantage for the time period of bad health happening during the benefit phase and licensed by a suitably selected practicing medical specialist. It is provided as cash reimbursement at 70 percent of the standard benefit rate.

Insured people experiencing TB, cancer, etc. long-term diseases are at liberty to extended advantages at somewhat higher rates, although, he ought to be consistently employed for as a minimum two years.

Extended Sickness Benefit (ESB):

Sickness Benefit can be further extended as long as two years on account of long-term diseases at an improved higher rate of 80 percent of wages. Insured persons undergoing sterilization for 7 days for male workers and 14 days female employees are entitled to the payment of an equivalent to full wage.

Maternity benefit:

Maternity Benefit in case of pregnancy confinement, delivery or miscarriage or clinical termination of pregnancy, etc. is to be paid to the guaranteed female worker under the act for a time period of 26 weeks which is further extendable by one month on the remedial recommendation for post-confinement illness at full wage rate, provided that, a contribution for 70 days in the 2 straight away preceding Contribution Periods is made.        

On the other hand, if the female employee is previously having at least two or more existing children, the benefit is allocated for a maximum time period of 12 weeks of which not exceeding 6 weeks will precede the probable day of delivery.

Disablement benefit:

Section 51 & 52A of the Act discuss the disablement Benefit which is due to be paid to a worker who is wounded throughout his job period and is eternally or for the time being disabled or associates any work-related disease.

Temporary disablement benefit

It is payable from the very first day of entering insurable service & regardless of having rewarded any payment in case of employment injury at 90% payable in so far as the disability continues.

Permanent disablement benefit

The benefit is paid at 90% of Standard Benefit Rate as scheduled monthly payment relying on the degree of loss of earning competence as certified by a Medical Board

Dependents' benefit:

If as a consequence of employment injury that happened in the course of his employment or an occupational ailment, a worker dies, the dependants will have a right to the benefit as a pension at 90% of Standard Benefit Rate as a regularly scheduled monthly payment to the dependants of an expired insured individual.

Medical benefit – for self & family:

Protected people under the act and their families have the right to get free, full, and extensive medical care in an Employee State Insurance Hospital, up to two years for unceasing and long-term diseases.

The package covers all parts of medical services from basic/essential to super-specialist facilities, like Out-patient treatment, Diagnostic facilities, Specialist consultation, Ambulance service or conveyance charges, and In-patient treatment, etc.

Funeral expenses:

If an insured worker of an establishment dies, the oldest living member from his family or to the individual who performs last customs is qualified for compensation of such cost subject to a maximum sum of Rs.15,000/-.

Payment of benefit in case of death:

The benefit payable up to and including date of death if an individual dies during any period for which he is qualified for a cash advantage under this Act, the sum of such advantage up to and including the day of his passing will be paid to any individual assigned by the deceased individual as recorded in hard copy, if there is no such selection, to the beneficiary or lawful representative of the deceased individual.

The scheme likewise provides a number of other need-based advantages to insured workers such as Atal Bimit Vyakti Kalyan Yojana, Rajiv Gandhi Shramik Kalyan Yojana and it also provides an incentive to managers in the Private Sector for furnishing regular employment to the people with disability. 

The Atal Bimit Vyakti Kalyan Yojana was made effective from 1st July 2018. This scheme is enforced and is applicable for two years period initially on a test basis. The relief of up to 25% of the average per day earning all through the previous four contribution periods (total earning during 4 contribution periods/730) is paid to the insured person under this Act up to a maximum of 90 days in which he is unemployed once in a lifetime. It is given to the insured person when he submits the claim in the form of an affidavit.

The Rajiv Gandhi Shramik Kalyan Yojana was made effective from 1st April 2005. Under this scheme, if any person who is employed under any organization after 1st April 2005, he/she shall be entitled to claim all the benefits which are accessible to them under the unemployment allowance benefit, shutting down of organization or in case the organization winds up. This scheme is subjected to more changes and amendments to increase its ambit resulting in more benefits to more people.


[1] 5th Year, BBA LLB (H.) in Corporate Laws, UPES, Dehradun.

MEDIA TRIAL: A LEGAL DILEMMA

By- Vikalp Sharma

Media is the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power because they control the minds of the masses.

-Malcolm X
Introduction

The issue based on the media trial which is talked about by numerous Civil Rights Activists, Constitutional Lawyers, Judges and Academicians pretty much consistently nowadays. With the appearance of TV and link channels, the measure of exposure gets to any crime, suspects or accused in media has reached to alarming proportions.

Innocent might be censured for reasons unknown at all and the individuals who are not liable may not get reasonable preliminary proceedings in order to very less restraints on media in so far as the administration of the bothered justice.

Press an only medium of expression but also a business[1], due to that urge for increasing the TRP in the competition has sparked a disposition in the sensationalize news items which would be otherwise worthless.[2]

India is the largest democratic country, the right to speech and expression is a significant right, however such right isn’t rigid as that in the Constitution per se. Media exercises certain unrestricted source of issuing publication information regarding the case and influence the mind of the public, it directly affects the Court in the case of accused.

Therefore, it affects the image of the accused even after the acquaintance from the fair treatment from the Court as he can’t reconstruct his reputation in the eyes of the public.

In the case of Express Newspaper v. Union of India[3], Court said “Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become license which would lead to disorder mayhem for which media is no exception”.

Justice P.B Sawant in “Media and Judiciary”, “The Statesman” dated on 28.3.2005 said that Breaking News is baked news by media with a bit of ‘Masala’, it’s TRP rating also get a boost.

Media Trial has taken a boost in the 21st Century and which signifies the person’s reputation by creating a perception of guilt in the mind of the public regardless of any verdict in a Court of law.

Based on the half details of the case or any statements of the accused or witnesses, media presents their view to the public during the pendency of Court trial is not only interfering with the administration of justice but also affecting the decision-making power of the Judiciary.

There were certain cases like Jessica Lal case, Priyadarshini Mattoo case, or Nitish Katara case, media before the judgment passed by Court, passed their verdict on said cases.

Definition of Media Trial

The Court defined Media Trial as the pre-trial and in-trial reporting of the case, whether civil or criminal, which is likely to prejudice the fair trial of every accused.[4]

It means ‘whenever a sensational case comes to be at the court trials, there is expected upsurge in the public curiosity, whenever media investigates or interfere and makes a presumption indeed, even before the decision of the Court’s then it is considered to be ‘Trial by Media.’

Constitutional Approach

Prior to the Constitution of India, there were no statutory provisions for freedom of speech or the liberty of press.

In Arnold v. King Emperor[5] Privy Council observed that ‘Freedom of the Journalists is a normal opportunity of the subject, and to whatever lengths the subject when all is said in done may go, so additionally may the writers, however, separated from resolution law, his benefit is no other.

Article 19(1) (a) of the Constitution of India envisages the freedom of speech and expression, it also provides the freedom of the media. In Ramesh Thapar v. State of Madras[6] the Court said Article 19(1) (a) does not refer specifically to the freedom of the press but the judicial decisions have repeatedly affirmed that the Article is sufficiently wide enough to include the freedom of the press.

However, the rights granted under Article 19 are not absolute, they are subject to some reasonable restrictions enunciated under Article 19 (2).

The article is read as:

“Article  19(1)[7]. All citizens shall have the right:

(A) To freedom of speech and expression (B) …….……………………………………..

(G)……………………………………………..

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause, in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”.

Judiciary v. Media Trial

There are many questions which are to be answered; first of all, are media/ journalists competent to conduct the proceedings in the way they do? Let’s take an example, if media takes a conclusive determination as well as the guilt of an accused and also represent confession by the accused even though made it with the help of police.

This implies the ignorance of media about the principles of law enunciated under Section 25 of the Indian Evidence Act, 1872.[8] Therefore, something which is forbidden by the court becomes easy to taint the accused guilt or confession in the society or general public which creates hatred towards the accused.

The most debated issue has been the influence of media on the decision-making process of the Judges. Journalism has an effect on the legal executive.

For example in maintaining the burden of capital punishment on Mohammed Afazal in December 2001 assault on Parliament, Justice P. Venkatarama Reddi expressed; “The matter which brought about substantial setbacks, had shaken the whole country and the aggregate still, small voice of the general public may be fulfilled if the death penalty is granted to the guilty party.,.”[9]

In Priyadarshini Mattoo case, Mattoo was raped and murdered by Santosh Singh, son of Police Inspector- General. Trial Court acquitted the accused, The Additional Session Judge, J. P Thareja said about Santosh that, “he knew that he is the man who carried out the wrongdoing; he had to clear him giving him the advantage of uncertainty.”[10]

In State of Maharashtra v. Rajendra Jawanmal Gandhi and Secretory, Ministry of Information and Broadcasting v. Cricket Association of West Bengal[11] Apex Court has held that a trial by press, electronic media or by way of public agitation is the very antithesis of Rule of Law and can lead to a miscarriage of justice, a Judge is to guard himself against such pressure.[12]

In Saibal Kumar v. B.K Sen[13],Apex Court said “Presumably, it would devilish for a newspaper to deliberately lead an autonomous examination concerning wrongdoing for which a man has been captured and to distribute the after-effects of the examination. This is on the grounds that proceedings by the newspaper, when a proceeding by one of the standard councils of the nation is going on, must be forestalled. The reason is that such activity with regard to a newspaper will in general meddle with the course of equity, regardless of whether the examination will in general partiality to the accused.

State of Maharashtra v. Rajendra Jawarhalal Gandhi[14], see also State v. Editors,[15]; A.K Gopalan v. Naorudin,[16] -Trail by media rather than Trial by Court which is the very direct opposite of rule of law bringing about the inequality trial.

Press Council of India and Law Commission 200th Report of India

If the Council is of the view that a news agency has committed any professional misconduct, they have the inherited power to “warn, admonish or censure the newspaper or agency, or direct the newspaper/ agency to “publish the contradiction of the complainant in its forthcoming issue” under Section 14 (1) of the Press Council Act, 1978.[17]

However, these measures can only be enforced after the publication of news materials.

In Ajay Goswami v. Union of India[18], the followings are the inadequacies of the Press Council Act, 1978:

  1. Section 14 of PCI engages the Council just to caution, rebuke or rebuff the papers/office;
  2. It has no ward over electronic media;
  3. It can exercise its power only to the pending civil and criminal cases;
  4. It only enjoys the authority of declaratory adjudication with limited power; and
  5. It has a lack of punitive power.

Press Council of India has also established a certain set of norms for journalistic conduct which are as follows:

  1. It emphasizes the importance of accuracy and fairness;
  2. Encourages the press to abstain from publication which is inaccurate, baseless, misleading or distorted materials;
  3. Publication of criticism of Judiciary be published with great caution;
  4. Avoid one-sided inference and be impartial; and
  5. It has criminal contempt powers to restrict the publication of prejudicial media reports.

In “200th report of Law Commission” titled “Trial by Media: Free Speech v. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)”, contradictive and positive parts of media preliminary has been explained, additionally made suggestions to address the harming impact of sensationalized news provides aspects regarding the organization of equity.

It has additionally been suggested that the High Court be enabled to coordinate the deferment of distribution or broadcast of criminal cases. The Commission has additionally recommended that the beginning stage of a criminal case ought to be from the hour of capture not from the hour of recording the charge sheet.

The assumption of the Commission in proposing the suggestion was the keep the media from prejudicing the case and makes a harmony between the Article 14, 19 and 21 of the Constitution of India and adjusting the privileges of free discourse and fair treatment.

Conclusion and Suggestions

The high-profile cases such as Jessica Lal and Nitish Katara murder cases, powerful people were the accused and benefit from such incessant media exposure. Neelam Katara, mother of the deceased in the Nitish Katara case, succeeded in getting a verdict from the subordinate court due to the support of the media and the public opinion generated through print and electronic media. It is said Trial by Media has its obvious fallouts.

It needs to be careful and cautious in their conduct. The solution lays not in the curbing of media freedom but in making efforts to make more responsible. No person charged with any crime should be judged by the media because that person is innocent until proven guilty, and it is the basic principle of criminal jurisprudence.

During these times, there is a need to devise a delicate and due balance between freedom of speech and expression of the media and on the other hand the due process rights of the suspect and accused.

The Paramount functions of the media are to act as the opposition of the government and also stay neutral in the process. This role of the media is highlighted in the cases.

None of the cases would have got so much of importance in the judiciary had the media not intervened, however, it is very important to have a responsive and responsible media to have a healthy democracy.


[1] Hamdard Dawakhana v Union of India, (1960) 2 SCR 671; Indian Express Newspaper v. Union of India (1985) 1 SCC 641.

[2] Example- Swamy nityananda’s sex sandle & Shashi Tharoor’s link in Kochi IPL issue.

[3] (1997) 1 SCC 133.

[4] Shyam Singh v. State, 1973 Cri.LJ 441; Kehar Singh v. State (1988) 3 SCC 609.

[5] (1914) L.R. 41 I.A. 149.

[6] AIR 1950 SC 124.

[7] Constitution of India.

[8] It prohibits the confession to the police as admissible in the court of law.

[9] See: http://www.hrdc.net/sahrdc/

[10] http://www.ourpriyadarshini.org/ on 12/12/06 (quoted from Trial By Media-The Jessica Lal Case , available at: http://ssrn.com/abstract=1003644).

[11] 1995 (2) SCC 161

[12] 1997 (8) SCC 386

[13] (1961) 3 SCR460

[14] (1997) SCC 386

[15] AIR 1995 (Ori) 36

[16] AIR 1970 SC 1694

[17] Section 14 (1) of the Press Council Act, 1978, states: “Where, on receipt of a complaint made to it or otherwise,  the Council has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste or that an editor or working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if It is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case maybe.”

[18] (2007) 1 SCC 143

IS THE CURRENT GOVERNMENT APT FOR MANAGING RESOURCES DURING COVID-19: AN ANALYSIS

By- Anshit Minocha and Anjumar Dewarshi

Introduction

There can be economy only where there is efficiency.” quoted by a Benjamin Disraeli stands undoubtedly and unquestionably true. Economic conditions represent the contemporaneous state of the economy of a definite country, region, or boundary.

Economic conditions are indicated with fluctuations or changes in them which are supplementary and which happen as changes in time occur. The economy forbearances and acquaintances transition in its business cycles as the economy experiences contraction and expansion.

Economic conditions are contemplated to be positive when it senses expansion and negative when it experiences contraction.

They are determined by handful macroeconomics factors which process for the country as a whole and microeconomics factors too which process for individuals, supported illustrations would be monetary and fiscal policy, the character of the universal economy, the rate of unemployment, productivity, rates of inflation and prices hikes, etc.

Testimony related to Economic conditions is discharged on a bona fide and regular basis, customarily weekly and even quarterly. A profusion of economic indicators for example Unemployment Rate and Gross Domestic Product Growth Rate are frequently used to describe the category of Economic Conditions.

Narendra Modi has been affirmed as the National Hon’ble Prime Minister in the year 2019 by the acquisition of majority seats in the Parliament and thus leading to the fruitful and commendable start of his second term of the same.

The COVID-19 crisis forthwith other nations had reached and attacked India, the same left the Hon’ble Prime Minister Narendra Modi to declare and announce nation-wide lockdown with rigorous rules of enforcement and the whole economy leading to a shut-down with only the fabrication and manufacturing of essential commodities advancing.

The government will be desiring some potential techniques to pull the dying economy out of the morass because the economy was characterized by not more than 6 percent GDP in the first quarter of FY20 which has been the slightest ever recorded in 6 years term of Narendra Modi- BJP formed government and also the automobile sector has been languishing in unemployment which evidences that fibrous times are about to be experienced by the overall economy.

Economy’s Scenario Pre COVID-Era

The Economy is not operating well under Modi-NDA led government’s second term. There has been a dominant slowdown in the major and influencing economic indicators and this slow-down was this lowest last recorded in the era of the 1990s. The percentage of Real GDP is as crouched as 4.5% which is the nethermost in the antecedent 5 years.

The fabrication of industrial goods is comprehensively depressed, the recorded production of investment goods is renouncing, and reiterating the previous point, have been worst recorded in the last 5 years.

These reducing recorded numbers are for a humongous materializing market economy which had been reportedly fructifying in the previous 5 years.  One of the dazzling spots situated in the economy is the equity market which is rejuvenating to new skies, but the recorded rise will not be endless if the economy of the country continues to stagger, the mentioned firms are the part of the economy and their shares will ultimately follow the economy’s footstep.

The Indian Economy is continuously degrading and not accelerating, the country’s two extensive drivers which are exports and investments have miserably put to a slow-down following the Global Financial Crisis also known as GFC.

In the year of 2016, Our Hon’ble Prime Minister Narendra Modi stunned and alarmed the whole nation by demonetizing 86 percent of the currency in apportionment with the settled and declared desideratum of affray black money and corruption. The move has deplorably led to criticism of the BJP- Modi led and formed government and also has enriched in a greater amount to economic rat’s nest.

The barnstormed goal of reforming the trade sector by the Make in India movement, the central government has become for the first time following in decenniums to accretion in the tariffs on imports, puncturing India’s economy and conceivable chance to assimilate into global supply chains.

India has remained under deliberation over the Regional Comprehensive Economic Partnership which was a regional trade agreement entered into with China and other large-scale Asian constituents and when the following examination was concluded, Piyush Goyal (Minister of Commerce India), gestured that India would be reuniting with China in the same agreement.[1]

The Hon’ble Prime Minister has enunciated “Ease of living” as the primary intention and objective and also have advertised how the government has used telecommunications to combat and eliminate corruption in India’s beadledom and management.

The government is captivated and dominated by its ease of doing business placings and rankings but is reluctant to explicitly accouterment with the accentuation in the financial sector which is the need of the hour to ensure activation of growth in the investment sector.

The parameter of India’s GDP statistics came into catechism when GDP growth in FY17 was overhauled to 8.2% which has been the highest between FY12 and FY19 in defiance of demonetization.

The following cited data shows the growth of 11 out of a total of 15 economic indicators was more desirable during the second term of Manmohan Singh- UPA formed government, more appropriate and more valuable analogously than the Modi-NDA formed government. [2]

Economy’s Situation Post-COVID-Era

It is righteously said, “The economy is one of the most important pillars of the country, the whole development is dependent on the economy of the country”. From the time when COVID 19 arrived and to protect the country from this epidemic situation, our Hon’ble Prime Minister has put the country under complete lockdown and this lockdown has a great shock on our economy, the GDP has fallen from 5.1% to 4.8% as per the current statistics. As per the data, RBI has stated that the new rating will be of a 3% growth in the GDP of the country.

According to the NSO report, India’s GDP will be at 4% in the year 2020 which will be the minimum in 11 years, and due to crises abound since 2016, demonetization, GST glitches and, credit crisis have taken a toll, weak demand job drought and muted wages have dented consumer sentiments & demand, blighted job market Unemployment at a historic high amid few new jobs and many layoffs[3]. Thereafter COVID-19 these all will be on the verge of increasing and will have a viral brunt on our economy. 

75% of India’s workforce is either self-employed or casual workers. They would also be catastrophically affected, layoff season from airlines to hotels, firms declaring salary carves, MSME Rout majority of which are small little cushion are already bruising from ban and GST, only a fraction may ride out and recover, credit crisis delinquently and NPAs could rise as individuals & enterprises likewise encounter and endeavor errors while making payments.

The major impact that is visible is on the Share Market, the first two arcs of coronavirus outbreak have already wiped off more than Rs 50 lakh core worth of equity investor wealth, with benchmarks Sensex and Nifty languishing at multi-year lows after falling 35 % percent from their January peaks.

The third-round effect is likely to be materialized, as the economy,i.e. corporates encounter a hit on bottom lines. The weaker firms are likely and expected to pay cuts or retrenchment, in turn; it is expected to create a vicious cycle of lower corporate Capex and weaker consumer demand.

Small sectors are padlocked and bankrupt, management and manufacturing of automobiles companies are interrupted, recycling of the product of e-waste product is stopped, the Thermal Power sector is distressed, constructions are interrupted[4].

India’s giant IT services companies are likely to face a significant slowdown in growth during this financial stretch of the year as they grapple with the upheaval wrought by the Covid-19 pandemic.

Top software exporters – Tata Consultancy Services, Infosys NSE 1.78 %, and HCL Technologies NSE -0.10 % — are expected to be jolted by the curtailing technology spending by clients in the US and Europe following lockdowns across the globe, experts said.

TV series and Bollywood sector which have had great addition and beneficence towards GDP now belief interrupted as well because there is no dispatch of any new films or daily TV series, the government will likely be not able to collect any sort of taxes. Even the agricultural sector is concerned, the supply of goods and crops have also been stranded and affected.

Due to unemployment people have canceled the acquisition and investment of non-essentials, transportation has also been struck down due to which a rise in petroleum and gas products has been recorded.

The cash draught can be seen as the government is not getting abundance and adequate money to pay the reimburse the salary of the government officers the rationale being the amount of cash flow in the country is limited and distressed.

Measures taken to battle COVID-19

Various steps indeed have been appropriated by the government to contain and discipline the economy of the country. A“COVID-19 FINANCIAL TASK FORCE” has been formed under the administration of the Finance Minister to conquer and defeat the crisis caused by the economy due to the virus. 

The finance minister stated that expenditure incurred on overcoming the corona epidemic will suffice under the purview of CSR. 1.7 lakh packages have been introduced by the government for the RBI.[5]

Krishnamurthy Subramaniam, Chief Economic Advisor has stated that the government and RBI have indeed taken several initiatives to benefit the clamor of the industry.

There is an obligation to sustain liquidity at surplus levels and provide special liquidity support for any companies/ NBFCs/ banks that come under strain due to intensifying risk aversion in financial markets or due to large demand shock, with the corporate bond and commercial paper markets are facing liquidity challenges the RBI should intervene, either directly or through the commercial banking system, to ensure adequate and adapted flow of funds into the market.

The government should not curtail its capital expenditure plans despite any shortfall in the tax collection, insolvency, and bankruptcy code should be suspended like aviation and hotel, that stance severely impacted due to COVID-19. As per the guidelines of RBI, Honourable Prime Minister Narendra Modi declared Rs 20 lakh core economic packages to rejuvenate the economy. 

The government has taken infrequent measures to provide timely benefits to the farmers of the country. The NDA- the government has already reassigned Rs 17,986 crore to farmers since March 24 under the PM-Kissan scheme.

The RBI depressed the reverse repo rate by 25 basis points to 3.75 percent, thus discouraging banks from keeping their surplus funds with it.

It ensured liquidity for small non-banking financial companies (NBFCs) and asked banks to lend at least half the money earmarked to be borrowed from the liquidity window to them.[6]

Monetary Policy Committee (MPC) has been disclosed and divulged, declaring another pause in repo rate cuts but kept its stance accommodative. It has provided relief to loans for the auto sector, real estate micro, small and medium enterprises (MSMEs), and long-term repo rates like at the European Central Bank (ECB).

But with surging headline Consumer Price Index (CPI) inflation has been contrived to halt on the repo rate, RBI monetary panel finalizes steps to save the economy from coronavirus, Rs 1.7 lakh crore spending plan has been announced to curb the impact of the virus outbreak.[7]

The aggregate of the production and manufacturing of heavy machinery and automobiles should not be ceased, buyers shall buy Indian products and promote “Make in India, India should start its factories and company to build home-made products to safeguard that there are no needs of concentrating money on transportation

An instance supporting the argument would be, India used to import SWABS at Rs. 17 from china government but in a raw development, Indian government initiated by interconnecting to the greatest and humongous Indian polyester manufacturer to locally design SWAB, the “Make in India” movement was promoted by getting aware of the design & material which was approved from NIV & manufacturing orders were given to MSMEs.

In Today’s Era, India is manufacturing at these Rs.2 which is a commendable improvement.

Conclusion

Even though the advancement which was made during the initial years and current years of the Narendra Modi- NDA formed government was not acceptable and satisfactory to shoot up the GDP and ensure the economy is at its peak. But, as per the current situation, the economy is expected to take numerous years to revive to its original and initial stages.

With an ample number of the opportunity of jobs in almost every sector; Moreover, there are numerous companies which have determined and nailed to settle in India and inaugurate it in a similar way like the Pharma sector, the Iron sector, Machinery, Vehicles, Etc are expected to get manufactured in India and henceforth promoting the “Make In India” Movement.

India is expected to soon have numerous and oodles of job and employment which will ensure a balance along with a flow of cash in India, even government treasury fund is expected to recover gradually and initially to stable stages. It is ensured in the best confidence that the government is taking applicable, convenient, and correct measures to tackle the pandemic of COVID-19 in positive and productive ways.


[1]Shezad Lakhani,How the Modi Administration Is Hamstringing the Indian Economy, THE DIPLOMAT(Jan 10, 2020), https://thediplomat.com/2020/01/how-the-modi-administration-is-hamstringing-the-indian-economy/

[2]Vivek Kaul, Manmohan Singh vs Narendra Modi: The real India growth story, Live Mint( Apr. 12, 2020, 8:29 AM), https://www.livemint.com/politics/policy/manmohan-singh-vs-narendra-modi-the-real-india-gdp-growth-story-1555034270688.html

[3]India Brand Equity Foundation, About Indian Economy Growth Rate and Statistics, Ministry of Commerce & Industry (Aug. 19, 2020), https://www.ibef.org/economy.aspx

[4]Pratim Ranjan Bose, Thermal power sector faces bleak scenario post-Covid Situation, Hindustan Business Line (Apr. 13, 2020), https://www.thehindubusinessline.com/economy/thermal-power-sector-faces-bleak-scenario-post-covid-situation/article31330730.ece

[5]Siddhartha Singh, RBI Monetary panel finalises steps to save economy from coronavirus, Economic Times (Mar. 27, 2020, 9:40 AM), https://economictimes.indiatimes.com/news/economy/policy/rbi-monetary-panel-finalises-steps-to-save-economy-from-coronavirus/articleshow/74839754.cms

[6]Anup Roy, COVID-19: In fight against economic slowdown RBI introduces new measures, Business Standard (Apr. 18, 2018, 1:26 PM), https://www.business-standard.com/article/economy-policy/rbi-introduces-measures-to-fight-covid-19-slowdown-cuts-repo-rate-to-3-75-120041700485_1.html

[7]Ajay Chhibber, RBI does its bit the ball is back in govt’s court to revive growth, Economic Times (Feb.07, 2020, 6:11 AM), https://economictimes.indiatimes.com/news/economy/policy/view-rbi-does-its-bit-the-ball-is-back-in-govts-court-to-revive-growth/articleshow/73992084.cms

BLACK SPOT IN GAME OF SKILL- GREY AREA IN SPORTS LAW

By: Manya Jain

“Education system is run by people with little industry experience. Sports by those who have never played. And then we say we have a problem.”

-Chetan Bhagat

India is a country with a lot of versatility and diversity. Sometimes, Sports act as a medium to bind the people together irrespective of their difference in religion, caste, creed, sex, etc. It is a country in which cricket is treated like a religion and players are treated with the utmost respect and in present times many sports are being followed like never before.

If we come to the administration part of the sports in our country, it comes under the ministry of youth affairs which is headed by the cabinet minister and managed by various autonomous sports federations.

As our country is developing, it has become a brimming venue for various National and International sports events, we can see that the popularity of sports is increasing with leaps and bounds, and with this sportsperson, federations and associations have to face many problems like betting, match-fixing, taxation, etc.

Moreover, the UN in its resolution 58/5 adopted in its General assembly in 2003 has recognized sports as a way of promoting health, education, and development. Hence, these things increase the need for a proper, burnished, and well-structured law in the Game of skill and hard work.

If we talk about certain examples like IPL Match-fixing, it became an eye-opener for the players because players who were in this scandal had to be charged under criminal offences as there is no separate law or legislation, in which they could be charged and it was difficult to make out in which category.

Sports Legislations in India

There is no proper legislation to regulate sports in India. The government has made the Ministry of Youth Affairs and Sports responsible for the task of development and infrastructure in sports for which.

But, for the promotion, it is under the various federations like Board of Control of Cricket in India (BCCI), Sports Authority of India (SAI), Indian Olympic Association (IOA), and many more which are autonomous is nature.

Role of Ministry of Youth Affairs and Sports

The role is to lay down the conditions and requirements for National Sports Federations to get recognition and be recognized as National and to take the funds from the Government, its aid and support.

Role of National Sports Federation

The main role of the federations is to promote sports and find talent. It is responsible for the management, supervision, and regulation of development and promotion.

With the increase in popularity, the dark sides are also increasing like IPL scams, cases of sexual harassment and if we talk about the ball-tampering case of Australia, if same would have happened in India, then it could have been a lot of matter of discussion because there is no single law and not a single umbrella.

If we come to the position of sports policy is concerned in India, there is a National Sports Policy. It came into force in the year 1984 but afterward, it was seen that the bill was incomplete and then it was re-implemented and came into force in the year 2001. This policy had certain objectives and guidelines which are:

Firstly, there must be procedures to be laid down for all the autonomous bodies and federations for making government aid and assistance available.

Secondly, to define the responsibilities of the different agencies which are undertaking and promoting sports.

Thirdly, to identify the sports federations with coverage eligibility under the set guidelines.

This policy has caught the lawmaker’s eye and which lead the lawmakers to give importance to sports, thus, it was included in the constitution of India at the seventh schedule in the State list.

In countries like the US don’t have a structure like this, it has a very systematic approach towards sports law, it has divided into three categories; Amateur, Professional and international categories and there is no single federal legislation.

In Australia, there is an Act, Australia Sports Commission Act, 1989 which is a statutory body governed by a Board of Commissioners appointed by the Ministry of Sport.

In India, there is a need for sports commission which should have the purpose to advise the ministry, identify and support the talent, monitor and take measures to ensure the proper allocation and use of the funds.

All the autonomous federations should not be autonomous, they should be under this commission and should be thoroughly checked and transparency should be maintained. This sports commission should be appointed by the Ministry of Youth affairs and sports and for this, there should be proper eligibility.

This commission should promote and identify talent from the school level only. There should be a balanced involvement of all the levels of the government, from Union to Panchayati raj.

Lastly, there must be a dispute resolution set up by this commission and must be given a proper redressed and most importantly there must be transparency in the workings to avoid corruption and nepotism.

Ending with,

“You can’t put a limit on anything. The more you dream, the farther you get.

-Michael Phelps

HATE SPEECH DURING ELECTION CAMPAIGNING

By- Vikalp Sharma

“There is a fine line between free speech and hate speech. Free speech encourages debates whereas hate speech incites violence”.

-Newton Lee
Background

The dangerous weapon that is being used nowadays during the election campaign is the Hate Speech’, which is defined as an “Expression that is abusive, insulting, intimidating, harassing, or which may incite to violence, hatred, or discrimination based on race, ethnicity, religion, or sexual orientation”[1].

There are two mechanisms that are used systematically during and after the elections. They are used basically to whip up anti-minority hatreds.[2]

Basically, it can be defined as a speech that provokes other people to hate a certain group in society. It is mainly because of the common characteristics like discrimination made on the basis of race, gender, religion, etc.

Though the need to exclude and avert hate speech is incontrovertible, opponents of hate speech restrictions often argue that the prohibition of hate speech may result in an infringement of freedom of expression, which could harm:

(A) Political awareness and expression;

(B) Legitimate criticisms and scholarly analysis of religion; and

(C) Humor and artistic expression.

In India, even though anti-hate laws impose a certain amount of restriction on the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, in G.V Godse v. Union of India[3]

High Court upheld its Constitutionality. It was basically upheld on the grounds of being a reasonable restriction intended at maintaining public order under Article 19(2) of the Constitution of India.

Legislative Approach

Elections in India are structured under the Representation of Individuals Act, 1951 (hereinafter referred to as RPA) to make sure elections take place in a free and fair manner.

Also, to elect an honest candidate, the RPA has laid down certain rules and prohibited certain acts that denigrate the purity of the elections. RPA categorizes deplorable acts committed during elections into two categories under Part VII. These are corrupt practices and electoral offences.

The basic distinction between the two categories is that when a wrong is done under corrupt practice. They are often brought before the Courts only at the top of elections by way of an election petition filed in accordance with the provisions of Article 329(b) of the Constitution of India.

Part VI of the RPA states that an electoral offence is often taken into cognizance and proceeded with. It is so because the offences are committed as per the provisions of the Criminal Procedure Code, 1973.

Also, a conviction for a corrupt practice involves civil disabilities like disqualification from voting and contesting elections for a particular period, a conviction for electoral offence attracts criminal liability like imprisonment for a term which can reach three years, or with fine, or both.[4]

Section123 and Section 125 of RPA govern the Act of unethical practices during elections. The charge of unethical practices is applicable to the candidates of the party and their agents.

However, after the changes brought in Section 79(b) of RPA defining who is a ‘Candidate’ made it easier for proposed candidates to escape from the charges as they defend themselves by saying that they haven’t filed the nominations forms yet.

The earlier Section used to define candidate as a person who is either proposed candidate or official candidate from any party involved in election campaigning which helped to prevent party agents to defer from giving hate speeches, but there was ambiguity in the understanding of the Section as it was hard to prove that the elevation of hatred through speeches and other means is part of an election campaign or not.

Therefore, in the landmark case of Raj Narain v. Indira Gandhi[5], Section 79 (b) of RPA was amended. The amended provision regarded only such person as a candidate who had been or claimed to possess had been duly nominated as a candidate at an election and not the one who was yet to be nominated.

Cases highlighting the shortcomings in the Provisions of the Act

The dark side of judicial interpretation, especially with Section 123(3) and Section 123 (3A) of RPA, can be seen in Ramesh Yashwant Prabhoo v. P.R. Kunte.[6] This case involved charges of corrupt practices against Prabhoo, the ex-mayor of Mumbai, and his ‘agent’ Bal Thackeray.

They made insulting references to Muslims and further declared a conflict against the Muslims. The Supreme Court concluded that the speeches made were in violation of Section 123 (3A), it demonstrated a more liberal approach towards some of the similar issues.

The Court observed that mere reference to any religion in an election speech does not bring it under Section 123(3) or Section 123 (3A).

Varun Gandhi who is a member of the Bhartiya Janta Party on March 7, 2009, made hate speech based on religious sentiments. Since he filed his nominations papers a month after making speech therefore, he was not an official candidate of the party for the elections as per the definition given under Section 79(b) of RPA.

Therefore, any grievance with esteem to the commission of corrupt practice under Section 123(3) or Section 123(3A) of RPA could not have been charged against him because he was not a candidate on the date when the hate speech was made[7].

It is very much evident that the definition of ‘Candidate’ is supporting the politicians to engage in corrupt practices such as making provoking communal speeches, instead of heling in the process of justice.

The misuse of this provision is largely owing to the fact that election campaigning in India starts much before a person files his nomination papers. This allows potential candidates to make provocative speeches to divide voters and garner votes without any fear of attracting disqualification under the law.

Model Code of Conduct

The RPA deals with situations that arise before the commencement of the elections and situations arising after the declaration of result of an election. The hate speech provisions thereunder are only applicable once elections are over.

Further, election petitions and criminal trials take an extended time and irrevocable damage could also because if an individual isn’t meanwhile restrained. So, as to carry out free and fair election campaigns and stop parties from practicing corrupt practices like hate speech, the Model Code of Conduct (hereinafter referred to as MCC) has been laid down which contains various guidelines about how the election campaign should be carried on.

MCC provisions are for the guidance of both candidates and political parties. Therefore, once the MCC comes into effect on the date of the announcement of an election, all party members would come within the purview of its provisions.[8] Thus, whether the hate speech is made by any person who is officially a party member will be directed under the guidelines of the MCC.

Suggestions and Conclusion

Since MCC lacks statutory sanction. The author herein suggests statutory sanctions be granted as MCC violations require quick response whereas the judicial process of examination of MCC violation would result in unnecessary delay, thereby rendering judicial decisions that are pronounced much after elections.

The law itself places an obligation on the judge trying an election petition to conclude it within six months from the date of its presentation; however, such expeditious disposal of election petition has only remained a dream.

Section 8A of RPA governs disqualification on the ground of corrupt practice. As per the present position of law, violation of Section 123 (3) or Section 123 (3A) entails disqualification under Section 8A of RPA.

The current practice, however, is a long and hard process as the order for disqualification can be issued only after it has passed through several phases of scrutiny.

Thus, Election Commission also should be permitted to act as an Election Tribunal for the purpose of dealing with complaints associated with violation of MCC provision whereby they will be required to deliver judgment within the campaign period.

This will ensure a situation that requires to be dealt with during the campaign period is met with an effective remedy that provides instant relief so that justice does not have to wait.


[1] Jae-Jin Lee, “Understanding hate speech as a communication phenomenon: another view on-campus speech code issues”, Communications and the Law, Vol. 19, 1997.

[2] Hate Speech and Hate Writing.

[3] G.V Godse v. Union of India, AIR 1971 Bom 56.

[4] K. Mendirratta & V.S. Ramadevi, How India Votes: Election Laws, Practice And Procedure 906- 08 (2007).

[5] Raj Narain v. Indira Gandhi, AIR 1975 SC 1590.

[6] Ramesh Yashwant Prabhoo v. P.R. Kunte, AIR 1996 SC 1113.

[7] https://timesofindia.indiatimes.com/india/Varun-files-nomination-declares-assets-worth-Rs5cr/articleshow/4434625.cms?

[8]Harbans Singh Jalal v. Union of India, (1997) 116 PLR 778.

OIL PRICE DEBACLE IN USA FOR OIL AND GAS (DOWNSTREAM)

By- Madhur Bhatnagar

Oil was being exchanged at around $18.0 a barrel and when we woke up the value blazing on our TV screens was in the scope of – $25 to – $35 per barrel. Truly, you read that right. – $37.63 is the place the cost of Oil prospects chose the NYMEX (New York Mercantile Exchange).

The benchmark WTI[1] Oil that exchanges on the NYMEX and has gotten equivalent to Crude Oil in the world, exchanged as low as – $40.32 before settling at – $37.63 a barrel for the day.

On Monday, April 20, 2020, the world saw for the first time a negative cost for Oil. The value fell in the abundance of the barrel from the earlier days close. It was a traumatized breakdown.

It is difficult to comprehend something to this extent. The incongruity aside of this entire disaster, the entire ride down sounds really spectacular also dumbfounding. How might it be? In what manner can the cost of an item get negative? A ton of you out there must be scratching your head and thinking the equivalent.

The value that you see and continually hear on the news when they talk about Crude Oil is the Future cost. An agreement to purchase or sell something on a cost at a predefined time later on.

The cost being referred to here is the cost for May Futures Contract (Financial exchange) that should be counterbalanced at the latest on the expiry date (21st April for the May Contract) and in the event that one can’t balance it by the expiry date, at that point one needs to take conveyance of Oil.

During the most recent month or so as costs expressed to fall, worldwide stockpiles began to fill up, and they started to fill up quicker than anybody could have imagined.

Presently as Oil was getting lesser expensive, organizations kept on putting away this “relative modest Oil” and topped off stockpiles and the ones that despite everything had some space were costly to such an extent that individuals thought that it was less expensive to pay the purchaser to take the conveyance instead of pay for the over the top stockpiling charges.

Since stockpiles are currently practically full and there is no spot to store the new Oil, the value begins to fall rapidly and since this May Futures Contract terminates on 21st April, you have almost no an ideal opportunity to escape the position, else you should take conveyance and store the Oil and without any stockpiles accessible, that is a hazard and a very few individuals are eager to take.

In this way, the cost on this May Contract begins to fall significantly quicker than the other farther out future contract months like June, July, etc.

If you bought May Oil futures, you are now stuck with them with no buyers and you want to dispose of the oil, you should pay somebody to do so as such which is the reason you pay somebody to take the oil, consequently the minus sign.

Futures prices of the front three months settled on 20th April, as follows:

  1. May: -$37.63 per barrel — expires on April 21st
  2. June: +$20.43 per barrel —expires on May 19th
  3. July: +$26.28 per barrel — expires on June 22nd

This disaster had in certainty begun a short time before, in March, when the value war began between Saudi Arabia and Russia, obviously on not consenting to go to a creation slice to prop up costs and wound up choosing to flood the market with more Oil, which in itself is irrational.

The cost had just begun to descend even before the infection started to place the last nail in the final resting place. The ongoing Corona Virus lockdown and the ensuing financial unrest that followed put down the interest at Oil and the costs began to fall off further. (Financial matters) — Supply and Demand

The ahead for Oil in the present moment doesn’t appear to be excessively hopeful. With most nations over the world expanding their lockdowns or remain at home requests, interest for Oil isn’t relied upon to go up at any point in the near future.

The understanding is set to remove 9.7 million barrels from the market, which is about 10% of the worldwide creation, however, specialists are assessing that request has fallen in excess of 30 percent and subsequently those slices won’t be sufficient to keep the cost up.

While on one hand, the Producers are siphoning as much Oil as possible which isn’t helping facilitate the Oil overabundance either, stockpiles then again are getting topped off rapidly and that compounds the issue further.

With costs falling forcefully, a great deal of little autonomous Oil makers in the US is near the precarious edge. This OPEC in addition to bargain had given them some expectation despite the fact that a few people were doubter, however now it appears to be even that slight bit of expectation has dwindled away.

We should now observe a new round of liquidations in the Oil area in the US. The falling costs will affect the helpless African and Latin American nations too, who should confront further monetary difficulties in an effective predicament.

Lower costs for the most part drive request, yet we are presently in a domain where until the pandemic danger is posing a potential threat, a prop up popular supposedly is a removed chance.

The interest obliteration in view of the Corona pandemic was unexpected and quick while the creation cuts will produce its results gradually; we ought to set ourselves up at lower costs and a harsh street ahead.


[1]West Texas Intermediate.

A Regulatory Body in the field of Arbitration: A Boon or Bane?

By- Anjanee Goel & Diksha Gupta

“I realized that the sincere function of a lawyer was to unify parties…A substantial part of my time throughout the 20 years of my practice as a lawyer was occupied in bringing about private compromise of hundreds of cases. I lost not a thing thereby- not even money, unquestionably not my soul”

-Gandhi 

Justice delayed is justice denied. Therefore, taking into consideration the high pendency of cases in the courts & cost of litigation and alternative dispute redressal mechanism was made.[1] Arbitration is one of the most important ADR methods.[2] 

According to Black’s law dictionary[3], “Arbitration in practice is the inspection and determination of a matter or matters of dissimilarity between contending litigants, by one or more unofficial persons, nominated by the parties. Compulsory arbitration is that which takes place when the assent of one of the parties is enforced by statutory provision. Voluntary arbitration is that which takes place by mutual and free assent of the parties.”

There are two kinds of arbitration proceedings in India: Institutional arbitration and Ad hoc arbitration. The parties have the recourse to seek alternatives to any one of them counting on their preference and satisfaction.[4]

Arbitration is nothing new to India. India is a land of villages and resolving disputes through ‘Panchayat dar’ is a well known traditional method.[5] It was in the 19th century that a proper legal framework in this field was introduced in India.[6] The foremost law on Arbitration in India was the Arbitration Act, 1899 founded on the English Arbitration Act, 1899 which was elongated to further fragments of British India via section 89, and Schedule II of the Code of Civil Procedure, 1908. And then, in 1996, Arbitration and Conciliation Act, 1996 was enacted, repealing the Act of 1940. 

Furthermore, Section 89 Civil Procedure Code was reintroduced making it mandatory to arrange settlement in all sorts of cases governed by the code.[7] Now, if it is evident to a Civil Judge that there is anything that requires settlement, he is obliged to refer to a dispute settlement. The Civil Judge will formulate the terms of settlement & will refer the matter either through arbitration, conciliation, mediation, or through a judicial settlement like Lok Adalat.

Many Acts have been enacted & repealed in the field of Arbitration. India is a developing nation and with the changing society, the law needs to be changed or modified, as the case may be. Keeping in mind the aim of providing fair & speedy justice of our Constitution[8], on 18th July 2018, Minister of Law and Justice Mr. PP Chaudhary, to amend the Arbitration and Conciliation Act 1996, introduced The arbitration and conciliation bill 2018 in Lok Sabha.

A high-level committee was constituted under the chairmanship of Justice BN Srikrishna to recommend the changes required. The bill was approved by the Lok Sabha but was pending before Rajya Sabha & in the meantime, Lok Sabha was dissolved and the bill was left unapproved. Then, again on 15th July 2019, The bill was reintroduced with some minor changes as the Arbitration and Conciliation (Amendment) Bill, 2019, by Minister for Law Ravi Shankar Prasad which has been approved by the Rajya Sabha on 18th July 2019 and this will lead to a new regime in the field of Arbitration.[9] 

India has set sights on turning into a center point for global jurisdiction similarly to Singapore, wherein the arrangement of arbitrators is assigned according to the Singapore International Arbitration Centre (SIAC) and Hong Kong, wherein the arrangement of authorities is as per the Hong Kong International Arbitration Centre (HKIAC) individually.[10] 

The principle point of the Bill was to give a reasonable system for all the arbitration on or after 23.10.2015 which is suitable for both local and worldwide arbitration. The Bill intends to diagram an appropriate course of events and reinforce institutional arbitration with the goal that it will promptly improve the dispute resolution mechanism in the nation.

The 2018 Bill was introduced recommending several changes and one of them was to establish an independent body called the Arbitration Council of India for the promotion of arbitration, mediation, conciliation, and other alternative dispute redressal mechanisms.  

A major recommendation made underneath the report is the construction of a Council that would assess arbitral institutions in India and set benchmarks. While acquiring this recommendation, the Bill grants competence to the council of forming regulations, which would have enforcement of the law. Thereby completely changing the nature of the body from the one contemplated under the report.

The fundamental explanation behind proposing the Arbitration Council of India (ACI) to be an administrative body is because of the way that the Government of India is the biggest litigator in India, and ACI should make genuine endeavors to defeat the inadequacies of the Arbitration and Conciliation (Act). 

As per the Bill[11], the principal elements[12] of the ACI would be as per the following; 

  • Confining policies for reviewing arbitral foundations and certifying arbitrators. 
  • Making arrangements for the foundation, activity, and support of uniform proficient standards for all alternative dispute redressal matters. 
  • Keeping up a store of arbitral awards (decisions) made in India and overseas.

The committee suggested the nomination of a prominent overseas practitioner appointed by the Attorney General of India on the governing body of the council. The overseas practitioner can help in introducing international best practices, and, more eminently, permit the council to be viewed positively by foreign counterparts, taking into account that the government wishes to encourage international arbitration in the nation. Nevertheless, this suggestion has been discarded.

Additionally, the report only expounded on the council acknowledging professional institutes that come up with granting of credit to arbitrators such as the Chartered Institute of Arbitrators.

Nevertheless, the 2018 Bill permits the council to scrutinize the grading of arbitrators. This generates a concern, that is, whether the council can also unequivocally look at arbitrator accreditation? If so, it again creates a huge issue of conflict of interest.[13]

The bill was based on the recommendations of the committee but, while finalizing the bill, it was slightly modified. 

The Bill suggests that the Arbitration Council of India will be led by the Chairperson who might be Chief Judge of a High Court or a Supreme Court judge or High Court or a prominent individual with expert information in the lead of arbitration. Besides, the council will incorporate prominent specialists, academicians, and government deputies with involvement in the arbitration. The Secretary to the Government of India in the Legal Affair, Ministry of Law and Justice, or a delegate, another part from the Government of India in the Department of Expenditure, Ministry of Finance, or an agent could likewise be considered for being the individuals from the council. There would likewise be one delegate from the Commerce and Industry on a rotational premise and lastly, a Chief Executive Officer or a Secretary ex officio could likewise be the individual of the committee.[14] 

The Committee had suggested that the Judge who has retired from the Supreme Court or High Court who might be selected by the Chief Justice of India will head the Arbitration Council of India. Different individuals in the council are imagined to be prominent professionals, academicians, and government nominees with involvement in arbitration as will be named by the Central Government. The Committee has additionally suggested that a chosen one member from the Ministry of Law and Justice and another delegate from the Commerce and Industry office on a rotational premise, as chosen by the Ministry of Commerce and Industry, would likewise be available. Lastly, the Committee suggested that there ought to likewise be the existence of one overseas expert who has generous information and involvement with the field of arbitration. 

Arbitration is without a doubt getting increasingly mind-boggling with each passing amendment. In spite of the fact that the usage of the Bill is yet to be evaluated, the governing body should pay special mind to a far-reaching correction covering all the grounds as opposed to executing a piecemeal in a short time frame which will make a question in the International legal framework as it might reflect as a beginner in the organization of the other worldwide arbitration jurisdiction.[15]

The enactment of the 2019 Act is a long-awaited step in rationalizing India’s Arbitration Laws. The 2019 Bill, much like the 2018 Bill, is full of various issues and glaring irregularities with the Committee Report and legal point of reference. Further, the 2019 Bill proposes changes, for example, the formation of a government regulator through the Arbitration Council of India, which has no point of reference in any arbitration-friendly jurisdiction. The Act aims to provide a suitable time framework & procedure for the proceedings and also aims to strengthen the alternative dispute redressal mechanism. Hence, the present need for reforms to bring a regulatory body, proper time framework, legal framework in the enforcement transparency and accountability needs to be addressed in the Bill. 

This is a welcome measure to make India more arbitration-friendly. It is definitely a positive step in the ADR reforms, if implemented in its true spirit, & is a well-intentioned piece of legislation that aims to balance the interests of the parties. Only the time test will show whether the changes introduced by the Bill will attain the objectives that it aims to achieve and resolve the concerns that it asserts to address, however, the provisions appear to be exhaustive,. The provisions inspire confidence in the arbitration proceedings, and further clarity can be realized only when all the rules & regulations are in place. 

It is important for the parties, arbitrators, lawyers,  to familiarise themselves with the changes and understand the impact on their operations. 

However, the enforcement of a regulatory body in the field of Arbitration is a question on hand since the conflict of interest in India is a matter of grave concern.  

Although these initiatives are encouraging, the 2019 Amendment Act alone may not be able to spur international arbitration in India. For the development of any jurisdiction as international Arbitration depends on a number of factors apart from having favorable local laws. The performance of laws, rules, and regulations; expansion of competent institutions; availability of conducive infrastructure for Arbitrations – all these amongst others go into the development of an arbitration hub. However since the Government has taken these measures for conducive laws to support Arbitration, it could be rationally be expected that other factors too may fall in place sooner than later.

India is frequently condemned as a “non-accommodating” arbitration jurisdiction by the worldwide network. The 2019 Amendment endeavors to take this analysis head-on, anyway in one’s view, it makes a greater number of misses than hits simultaneously. Although a positive development, yet, India is far away from turning into a global arbitration centre.


[1] Ukey, K. (2015). ‘Arbitration, Conciliation and Mediation – Alternative Disputes Resolution Mechanism – A Bane or Boon’: An Analytical Study of Indian Arbitration and Conciliation Act 1996, and A peek into the global scenario. Retrieved 20 July 2020, from http://pezzottaitejournals.net/pezzottaite/images/ISSUES/IJEBEPV4N1.pdf.

[2]  Indian Council of Arbitration- Transforming India into a Global Arbitration venue. (2010). Retrieved 20 July 2020, from http://www.icaindia.co.in/april-june.pdf.

[3] Garner, B. A., & Black, H. C. (2009). Black’s law dictionary. 9th ed. St. Paul, MN: West.

[4]  Kumar, A. (2017). ARBITRATION ORGANISATIONS IN INDIA – Singhania And Partners. Retrieved 20 July 2020, from https://singhania.in/arbitration-organisations-in-india/.

[5] Indian Council of Arbitration- Transforming India into a Global Arbitration venue. (2010). Retrieved 20 July 2020, from http://www.icaindia.co.in/april-june.pdf.

[6] Arbitration Act, 1899.

[7] Section 89 of C.P.C. was repealed by Section 49 of the Act 10 of 1940 and again reintroduced by Section 7 of the Act 46 of 1999 with effect from 1-7-2002.

[8]Agarwal, N. (2019). ADR : A boon to achieve speedy justice – LawOrdo. Retrieved 20 July 2020, from https://www.lawordo.com/adr-a-boon-to-achieve-speedy-justice/.

[9] Goswami, D. (2019). Light Of The Day For The Arbitration Council Of India Through Arbitration And Conciliation (Amendment) Bill, 2019 – Litigation, Mediation & Arbitration – India. Retrieved 20 July 2020, from https://www.mondaq.com/india/arbitration-dispute-resolution/834386/light-of-the-day-for-the-arbitration-council-of-india-through-arbitration-and-conciliation-amendment-bill-2019.

[10] Id.

[11] Id.

[12] The Arbitration and Conciliation (Amendment) Bill, 2019. Retrieved 20 July 2020, from https://prsindia.org/billtrack/arbitration-and-conciliation-amendment-bill-2019.

[13]  Kabra, A. (2018). Arbitration Council: The Birth Of A New Regulator? – Litigation, Mediation & Arbitration – India. Retrieved 20 July 2020, from https://www.mondaq.com/india/arbitration-dispute-resolution/689482/arbitration-council-the-birth-of-a-new-regulator.

[14] Goswami, D. (2019). Light Of The Day For The Arbitration Council Of India Through Arbitration And Conciliation (Amendment) Bill, 2019 – Litigation, Mediation & Arbitration – India. Retrieved 20 July 2020, from https://www.mondaq.com/india/arbitration-dispute-resolution/834386/light-of-the-day-for-the-arbitration-council-of-india-through-arbitration-and-conciliation-amendment-bill-2019.

[15] Id.

PLEA BARGAINING: THE CATHOLICON FOR INDIAN CRIMINAL JUSTICE SYSTEM

By: Ishita Pancholi and Vikalp Sharma

Introduction

Plea Bargaining is a negotiation or arrangement between the accused and the prosecutor during which the accused confesses and approves to plead guilty for some concessions in his punishment.

When a prosecutor has a solid case against the accused then the prosecutor may offer him the plea deal to evade the frivolous litigation provided with if the accused accepts all the charges against him. Plea Bargaining may help in dropping the number of pending cases in the Indian Courts.

The concessions which are provided to the accused such as reduction of the charges filed against him or reduce the sentence of the punishment etc. Scholars have estimated the number of cases resolved by plea bargaining is about 90-95% of both Federal and State Courts.[1]

Plea Bargaining in India was introduced in the Criminal Law (Amendment) Act, 2005. A New Chapter XXI(A) was enforced in CrPC from July 5, 2005. Plea Bargaining is allowed only in cases where the punishment is imprisonment for 7 years. However, Plea Bargaining is not valid in the cases committed against socio-economic conditions, women, or children below 14 years.

Types of Plea Bargaining[2]

There are three types of Plea Bargaining:

  1. Sentence Bargaining: In this case, the accused pleads guilty in exchange of a promise made by the prosecutor for reducing his sentence or providing the alternative sentence.
  2. Charge Bargaining: In this case, the accused pleads guilty in exchange for a promise made by the prosecutor for reducing or dismissing some charges filed against him.
  3. Fact Bargaining: In this case, the defendant or accused agrees to provide certain facts in return for preventing some facts to be taken as evidence.

Statutory Provisions[3]

Section 265A: The concept of Plea Bargaining is accessible by an accused that is charged with any offence. But that offence should not be punishable with death or imprisonment of life.

Section 265B: The application of Plea Bargaining should contain brief details about the cases including the offences to which the concerned case relates, it shall accompany by the affidavit of the accused. Further, the court shall issue the notice to the investigative officer, victim, and to the prosecutor.

Section 265C: This Section prescribes the procedure followed by the Court in working out a mutually satisfactory disposition of the concerned case.

Section 265D: Meeting is conducted. The report is signed by the presiding officer and other participants of the meeting after the satisfactory disposition.

Section 265E: After filing the report, the Court has to hear the parties and choose the quantum of the punishment.

Plea Bargaining in United States

Plea Bargaining concept is followed differently by each country and is a significant part of the criminal justice system. They endure uniformity in all cases by following Federal Sentencing Guidelines”. There are two main types of the Plea agreement: 11(c)(1)(B) and 11(C)(1)(C). It is common in Superior Courts of California; they have issued an optional seven-page form to help in the procedures of a plea agreement.

Once a Plea Bargain is decided and acknowledged by the Court. It is final and cannot be appealed, however, defendant can withdraw his plea and accept the conditional plea bargain whereby he pleads guilty and accepts the sentence.[4]

Judicial Approach

In Damien Wayne Echols v. the State of Arkansas, the Supreme Court convicted 3 teenagers in 1994 for the Murder of a boy. The DNA did not match to the convicts, however, it matched to the stepfather of the boy who got murdered. Prosecutor offered the stepfather the plea deal, after 18 years in the prison the accused had to enter a plea.

In Kasambhai Abdulrehman Bhai Sheikh v. State of Gujarat[5], The Court held that Plea Bargaining is against the public policy. It pollutes the pure anterior of justice. The Court has challenged the ethics of plea bargaining. It also regretted the fact that the magistrate had accepted the plead deal.

In Murlidhar Mehraj Loya v. State of Maharashtra[6], Apex Court did not uplift the concept of Plea Bargaining. They believed it to be a formal inducement. The enormous supremacy in the hand of the prosecutor will lead to exploitation and collusion of justice. It held that Plea Bargaining intrudes upon the society’s interest and public morale.

Conclusion

The concept of Plea Bargaining helps in the fast disposal of cases by being beneficiary for both accused and the prosecution. Plea Bargaining helps the advocate to defend their clients easily; it also helps in resolving the long-standing disputes. Further, it aids in speedy trial and lessens the burden of courts and permits to concentrate more on societal issues.  

Plea Bargaining helps in avoiding publicity by the fast settlement of cases which eventually reduces the media trial which can prejudice the administration of justice.

India has recognized the right of a convict in Article 20 of the Constitution, however, with the change in the passage of time, the Indian Criminal System introduced the Plea Bargaining.

When change is brought there are always people either criticizing it or accepting it. Rejecting the concept is just solely based on its disadvantages not being justified, therefore, the need for the era is to bring change in its culture, composition, or structure and accept the concept of Plea Bargaining.


[1]Plea and Charge Bargaining: Research Summary Bja.ojp.gov, https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf (last visited Aug 18, 2020).

[2]What Are the Different Kinds of Plea Bargaining? http://www.nolo.com, https://www.nolo.com/legal-encyclopedia/what-the-different-kinds-plea-bargains.html (last visited Aug 18, 2020).

[3]Plea bargaining – Law Times Journal, https://lawtimesjournal.in/plea-bargaining/#:~:text=Statutory%20provisions%20under%20criminal%20procedure,death%20or%20imprisonment%20for%20life.&text=It%20shall%20be%20accompanied%20by%20an%20affidavit%20of%20the%20accused. (last visited Aug 18, 2020).

[4]Ibid.

[5]Kasambhai Abdulrehman Bhai Sheikh v. the State of Gujarat, AIR 1980 SC 854.

[6]Murlidhar Mehraj Loya v. State of Maharashtra, AIR 1976 SC 1929.

A MUCH NEEDED REGULATION IN MERCY PETITION

By- Gaargi Tomar

Introduction

Mercy Petition is the pathway through which an innocent person tries to get justice if he is being punished due to miscarriage of justice or in cases of doubtful conviction. Also, it is to be noted that mercy petition is different from review petition and curative petition as review petition can be defined as the binding decision of the Supreme Court or High Court which can be reviewed in a review petition and petition can be filed by the parties aggrieved by the decision of Supreme Court. Moreover, such a petition can be filed within 30 days of the pronouncement of judgment or order.

Furthermore, if a review petition is dismissed by the Supreme Court it may be considered as a Curative Petition.

The perception about the Curative Petition was progressed in the revolutionary case of Rupa Ashok Hurra v. Ashok Hurra and Anr.,[1].

The question in the subject in this event was whether after the discharge of the review petition whether an aggrieved person has the authority to any relief i.e. against the judgment of the Supreme Court can any relief be sought?

Mercy Petition is filed in cases where a person has lost all his rights. Being the end alternative, a person can file for Mercy Petition in front of the President. This right is available under Article 72 of the Constitution. Not only can the petition be filed in front of a President but can also be filed to a Governor of the state as under Article 161.

The Concept of mercy petition is being followed in U.S.A, U.K, Canada, India, etc. The whole statue is silent on the topic of definite procedures to be followed for the filing of Mercy Petition. Rules and guidelines for the disposal of the Mercy Petition are effective and it has a time limitation. Many think that due to all these loopholes, it is considered a violation of article 14 and 21 of the Constitution.

Basic Philosophy behind This

It exists to afford the relief from undue harshness or evident mistake in the operation and in the enforcement of criminal law. This provision adds a human touch to the judicial system by conferring powers to grant pardons or show mercy to those who have been awarded death sentence.

It has been recognized and acknowledged that a prolonged delay in executing the death sentence makes the punishment inhuman and degrades natural justice.

Current Framework of the Petition

Article 72 and 161 of the Indian Constitution empowers the president and governor to exercise the pardoning powers respectively.

From the above two Articles, it is clear that these provisions are available only in a condition when such persons are “convicted off an offence” and not before or without such conviction. It cannot also be applied to those conditions when the appeal is pending against the conviction.

In Shamsher Singh & Anr. v. State of Punjab[2] the Apex court laid down the principle authority that whenever an individual has sentenced a death penalty he has the license to present the Mercy Petition before the Hon’ble President.

Process for Making Petition

Though there is no statutory or written procedure for dealing with mercy petition, the petitions are received by the president’s secretariat on behalf of the president, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.

The petition can be filed by the convicted person within 7 days of passing of the order. The convicted person needs to be a person who is under the death verdict. The advantages of the petition are discussed by the Home Ministry with the State Government. After the discussion, the petition is again sent back to the President.

Need for Standard Procedure

Presently there are no rules that bind the government or the President for granting, accepting, or refusing the mercy petition.

In the present scenario of granting pardon, granting relief to one person on a particular ground does not mean granting the same to another. As in, R. Govindasamy[3] and Ravji case. Both the accused killed five persons and were convicted on circumstantial evidence.  

In the R. Govindasamy case, the sentence of death was converted into imprisonment for life but in the other case which is the Ravji case, no relief was given.

Article 21 prohibits the deprivation of the right to life and right to personal liberty, except according to a procedure established by law. The court in Maneka Gandhi v. Union of India[4] elucidated that the “fair procedure” is the demand of Article 21. No process indicates the option of arbitrary exercise of power. Lack of procedure in dealing with mercy petitions stands in contravention to principles under Article 21.

Simultaneously under Article 14, in State of West Bengal v. Anwar Ali Sarkar[5], the Court held the law to be invalid on the ground that the usage of vague expression, like ‘Speedier Trial’. The possibility of arbitrariness and discrimination in the present framework, therefore, stands as unconstitutional.

Recourse in Judicial Review

The jurisprudence has taken a new way and moved way ahead from the time of the Supreme Court’s RangaBilla case[6] where the Supreme Court had dismissed the petition against the arbitrariness and it was observed that the term “Pardon” indicates that it is fully a discretionary remedy and its denial is not to be reasoned.

The pardon was seen as an act of grace that was not to be claimed. In Swaran Singh v. State of U.P[7], the SC held that when power of cancellation has been exercised in contempt of the “finer cannons of constitutionalism”, such directive cannot get the approval of the law and in such cases, “the judicial hand must be stretched to it”

Present Scenario

The mercy petition has been rejected in many cases. One of the examples is Nirbhaya’s Case[8] where the petition filed by the accused was rejected and also in many other cases such as Yakub Memon. All these case shows that getting a mercy petition is not so easy. It becomes very selective.

Under a landmark judgment in 2014, the SC stated that a convict could not be executed for 14 days after the mercy petition had been rejected. The 14 days’ notice for execution acts as a deadline in order to prepare the prisoners for execution, prepare his will, etc.

Conclusion

The error of Judiciary is corrected by the executive and it has eliminated the effect of conviction without addressing the defendant guilty or innocent. Mercy Petition may prove to be a boon as to who had wrongly been convicted and any miscarriage of justice had happened and also it can act as bane. The reasons are lack of defined procedure and proper guidelines and its timely disposition.

Judicial Review mechanism is also rendered redundant. This is because it barley add to the concern of convicts and victims.

These alterations will eliminate the possibility of arbitrariness in exercising discretion and also ensures that the petition endures beyond a certain time.


[1]Rupa Ashok Hurra v. Ashok Hurra and Anr,(2002) 4 SCC 388: AIR 2002 SC 1771.

[2]Shamsher Singh & Anr. v. State of Punjab, AIR1974SC2192, (1974)2SCC831.

[3]R. Govindasamy (Died) and Ors. v. KasthuriAmmal And Ors., (1998) 2 MLJ 291.

[4]Maneka Gandhi v. Union Of India, 1978 AIR 597, 1978 SCR (2) 621.

[5]The State Of West Bengal v. Anwar All Sarkar, 1952 AIR 75, 1952 SCR 284.

[6]State v. Jasbir Singh @ Billa And Kuljeet, 17 (1980) DLT 404, ILR 1979 Delhi 571.

[7]Swaran Singh v. State of U.P. & Ors on 5 March, 1998.