A draft of the Personal Data Protection Bill, 2019 (“Bill”) was introduced before the Lok Sabha on December 11 of 2019. The Bill is largely based on the draft bill of the Personal Data Protection Bill, 2018 which had been attached to the report submitted by the Committee of Experts set up in 2017 by the Ministry of Electronics and Information Technology, headed by Justice Srikrishna (Retd.). However, the Bill also manages to stand apart from the said draft bill on numerous counts, due to which it has attracted a lot of criticism.
The Statement of Objects and Reasons of the bill discusses the background, wherein it mentions the celebrated case of Justice (Retd.) KS Puttuswami v. Union of India, a Supreme Court case which declared “privacy” as a Fundamental Right under Article 21 of the Constitution of India. In this particular case, the Supreme Court impressed upon the Government to bring out a vigorous data protection regime. It also specifies the aforementioned Committee of Experts as well as varied suggestions received from the stakeholders.
The Personal Data Protection Bill, 2019 aims at bringing forth a robust and strict framework of data protection for India by setting up an authority for protection of personal data and thus not only confers upon the citizens Fundamental Right of privacy but also seeks to ensure such ambitious right. What is particularly noteworthy of the Bill in question is that the application is not dependant on the territorial boundaries but rather on the processing of the Personal Data.
Some of the key features of the said Bill are discussed as follows:
Consent: Consent has been made the protagonist, as it should have been. It has been emphasised as the primary basis for processing of Personal Data. However, other reasonable basis for processing have been mentioned. Such consent is to be free, informed, unambiguous and capable of being withdrawn by the subject and must be obtained no later than at the first foot forward for the procession the personal data consented for. Construct of consent managers, coined as data fiduciaries is unique and has perhaps been done in order to provide support to the Data Empowerment and Protection Architecture for the financial and telecom data which powers the Account Aggregators who are licensed by the RBI.
Regulatory Sandbox: A regulatory sandbox which is envisioned to be between twelve and thirty-six months in duration, has been created with the aim of furthering the development of fresh technologies in the nature of artificial intelligence, pursuant to which exemption for the purpose, storage and consent requirements under the Bill be awarded to the entities. However, such exclusion would need to operate within the ambit of the tests which have been delineated in the Aadhar Judgment.
Right to Erasure: The Bill confers upon a user the right to erasure which is commonly referred as the ‘Right to be Forgotten’ which is the right of the user to be able to prevent their data from being disclosed once the purpose for which the data was collected has been served, if the user withdrew consent, or in case the data had been disclosed illegally. The user could make a complaint to the authority envisioned under the Bill which is the Data Protection Authority, who will then order the data fiduciary to remove the said user’s data.
Children’s data privacy: Data fiduciaries are envisioned to be able to process a child’s personal data only post verifying their age, and obtaining the consent of their parent or their guardian. The Data Protection Authority are empowered to classify a data fiduciaries who operates services which are meant for children, or ones who are responsible for processing good amount of children’s personal data as a “guardian data fiduciary”- who will not be allowed to profile, track, monitor the behavior, target ads or even carry out procession which could potentially cause significant harm to the subject child.
Social media intermediaries and verification: If any “social media intermediary” has a certain number of users, and could potentially impact electoral democracy, country’ security, sovereignty or public order, can be notified by the Central government and DPA as a “significant data fiduciary”. Different thresholds are envisioned to be notified for varied classes of such intermediaries. Social media intermediaries do not include intermediaries which enable commercial or business transactions, provide access to the internet, email services, search engines, and online knowledge powerhouses aka encyclopedias. Such intermediaries can give account verification options to users who are willing- such users will in return a visible mark of verification.
Personal Data: Star of the show- personal data is sought to regulated by the Bill in 3 variants i.e. Critical Personal Data Personal Data and Sensitive Personal Data. The definition of Personal Data has been expanded as compared to the one put forth in the bill presented by the Committee of Experts. Sensitive Personal Data can only be transferred outside the country with explicit consent of the user along with the permission of Data Protection Authority and that of the Central Government. Such transfer comes with another caveat- it can be stored only in India. Critical Personal Data has not been defined by the Bill and is said to be notified by the Central Government in due time.
Data Sharing with the Government: The Bill empowers the Central Government to require Data Processors or Data Fiduciaries to provide them with anonymized Personal Data, or other non-personal information of the users in order to further the target or delivery of services and for fulfilment of requirement of evidence while formulating certain policies. It reiterates the right of the Central Government to bring forth policies for digital economy, barring the involvement of personal data. Such right is especially relevant in view of the proposed E-Commerce Policy.
Cross Border Transfers of Data: The Bill does not place any restrictions on the cross-border transfer and procession of the personal data. There is a significant dilution of the data localisation which is a departure from the requirement specified in the draft put forth by the Committee of Experts wherein a copy of all personal data was required to be stored in India. Instead, the Bill in question specifies the requirement of the localisation of sensitive personal data as well as imposes conditions on the cross-border transfer in case of sensitive and critical personal data.
Data Protection Authority: The Bill in question seeks to establish an authority which is envisioned to serve as the regulatory and enforcement body for the Bill in question. The authority in question has been vested with varied powers namely,
provide directions and guidelines on applicability of certain provisions of the Act,
ensure consistency of data protection regulations across ministries, regulators and legislations and monitor, and
secure compliance of provisions of the Act. In performing such said functions, the authority or such Inquiry Officer, as has been appointed by the authority, would be conferred with the powers akin to that of a civil court with respect to discovery, summons and inspection.
The Personal Data Protection Bill, 2019 has been introduced in Parliament and further on has been referred to the Joint Select Committee, which is required to submit its report to Parliament by the next session which has been scheduled for February 2020.
While the said Bill does manage to throw light on the compliance requirements and obligations which are applicable to the data fiduciaries and processers, a number of varied compliances do remain in the dark which have been left to the determination of the Data Protection Authority, and the true impact of the legislation in question can only be fully realized and thus analyzed once they are actually put in force.
The Central Government introduced an Amendment to the Indian Stamp Act, 1899, through the Finance Act 2019. With the changes pursuant to the Amendment, the Indian Stamp (Collection of Stamp Duty through Stock Exchange, Clearing Corporations, and Depositories) Rules 2019 have been introduced for the purpose of proper implementation of the said amendment.
The Amendment was brought to change the law regarding the imposition of the stamp duty on securities and how the process of levy and payment of the stamp duty would be made. Along with the amendment the rules will act as a guiding law for the stock exchange and the depositories for giving a systematic approach in collection of the stamp duty.
The main objective of the revenue department was to have a harmonized system of stamp duty where the levy of such will help and rationalize the tax evasion problem. The department also declared that for the rates of stamp duty, a benchmark set by the system of levy of stamp duty in Maharashtra will be considered because its collection accounts for a major part in total collection.
AMENDMENT OF CERTAIN KEY PROVISIONS
[1]SECTION 2: DEFINITION
SECTION 2(1): Allotment List
Any issuer making the allotment to the depositories section 8(2) of the Depositories Act, 1996 will be recorded in the list, the list containing such details is an Allotment List. The section 2(1) and 2(1A) will be substitute section 2(1). Section 2(1A) defines Banker.
SECTION 2(5): Bond
For the purpose of this section, a debenture is not included under bond.
SECTION 2(7A): Clearance List
It is a list submitted to a clearing corporation containing transactions of sale and purchase relating to contracts traded on the stock exchanges in accordance with the law for time being in force on this behalf.
SECTION 2(10A): Debentures
The definition of debenture proposed to include all types of the debentures, whether listed or not. It defined as
- Debenture stick, bonds or any other instrument of a company evidencing a debt, whether constituting a charge on the assets of the company
- Bonds in the nature of debenture issued by an incorporated company or body corporate
- Securitized debt instruments; and
- Any other debt instruments specified by the SEBI.
Before this amendment, debentures for the purpose of the levy of stamp duty under Article 27 of the Schedule of the Act included only those debentures which were marketable securities.
SECTION 2(10B): Depository
This section was inserted to define the term depository. It includes a depository according to section 2(1)(e) of the depository act, 1996 and any other entity declared by CG.
SECTION 2(14): Instrument
By the amendment act the definition of instrument was broadened to also include electronic documents but it does not include any documents specified by the government.
Thus, an instrument includes:
- Every document or a document whether electronic or otherwise created for a transaction in a stock exchange or depository, by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished, or recorded.
- Also include any document which is mentioned in Schedule – I.
SECTION 2(16A): Marketable Securities
By the amendment act, the definition of marketable security is limited as now only those securities are subject to this act which are traded in any Indian Stock Market earlier which had also included securities that could be sold in Indian Stock Market as well as the United Kingdom.
SECTION 2(23A): Securities
The amendment act inserted a definition of securities for purpose levy of stamp duty. It included any security:
- As under Section 2(h) Securities Contracts Regulation Act 1956;
- A derivative under section 45U(a) of the RBI, 1934;
- A certificate of deposit, commercial bill, commercial paper, repo on corporate bonds and such other debt instrument of original or initial maturity up to one year as the RBI may specify from time to time; and
- Any other instrument declared by CG only for this Act.
[2]SECTION 8A: SECURITIES DEALT IN DEPOSITORY NOT LIABLE TO STAMP DUTY
By the amendment act 2019, the provision under section 8A was substituted. It states that
- an issuer, by the issue of securities to one or more depositories, shall, in respect of such issue, be chargeable with duty on the total amount of securities issued by it and such securities need not be stamped;
- the transfer of registered ownership of securities from a person to a depository or from a depository to a beneficial owner shall not be liable to duty;
- Explanation.—For the purposes of this section, the expression ―beneficial ownership shall have the same meaning as assigned to it in clause (a) of sub-section (1) of section 2 of the Depositories Act, 1996 (22 of 1996).
With the amendment act, the earlier exemption from stamp duty available under sub clause (c)(ii) and (iii) of the Act, where a transfer of dematerialized securities between beneficial owners has been removed. Also, no exemption will be available in case of transfer between a person to depository or from a depository to a beneficial owner[3].
[4]PART AA- OF THE LIABILITY OF INSTRUMENTS OF TRANSACTIONS IN RELATION TO SECURITY
By the amendment act, new part AA was inserted where section 9A was substituted by insertion of new sections 9A and 9B. Section 9A deals with the provisions for the instruments chargeable with the stamp duty for transactions in stock exchange and depositories whereas Section 9B deals with the instruments chargeable with the stamp duty for transactions otherwise through a stock exchange and depositories.
- The duty will be charged on the market value of the security instrument according to Section 9A which will be the main instrument whereas no duty will be charged on any other instruments.
- The stamp duty will be now collected on the certain instances as specified under the Act will be collected by authorities of the State government on their behalf whereas the power to make rules related to the collection and disbursement of stamp duty is conferred on the central government.
- The authorities shall collect the stamp duty on certain instances:
a) On transaction of sale of any securities by stock exchange. This will be collected by the stock exchange or the clearing corporation appointed by such authority.
b) when a depository makes a transfer of a securities, otherwise this the transaction mentioned above will be consider for basis of stamp duty collection.
c) When due to issue of the securities there occurs any change or creation to a record of depository, the authorities for the state government will collect the duty.
[5]SECTION 21: DETERMINATION OF VALUE OF STOCKS AND MARKETABLE SECURITIES
By the amendment act, the provision was substituted whereas the new provision states that when an instrument is chargeable with ad valorem duty, the stamp duty shall be chargeable on the market value of stock or any marketable or other securities.
In addition the amendment act added a proviso to section, which established what will be considered as the market value for purpose of stamp duty:
- In case of options in any securities the value of premium paid by the buyer;
- In case of repo on corporate bonds the value of interest paid; and
- In case swap the value of the first leg of the cash flow only.
[6]SECTION 62A: PENALTIES w.r.t. NON-COMPLIANCE OF SECTION 9A
By the amendment act, section 62A was inserted with the intent to penalize anybody who fails to comply with the provision laid under section 9A. It states that
Any person who:
- Fails to collect the duty being required under section 9A(1); or
- Fails to transfer the duty to the State Government within 15 days as specified under section 9A (2).
Any person who:
- Fails to submit details a transactions to the government as laid under section 9A (5); or
- Submits a document or makes a declaration which is false or which a person knows or believes to be false
Shall be punishable with fine of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less.
[7]SECTION 73A: POWER OF CENTRAL GOVERNMENT TO MAKE RULES
By the amendment act, section 73A was inserted which gives power to CG to make rules for all or any of the following matters:
- The manner of collection of stamp-duty on behalf of the State Government by the stock exchange or the clearing corporation authorized by it, from its buyer under clause (a) of subsection (1) of section 9A;
- The manner of collection of stamp-duty on behalf of the State Government by the depository from the transferor under clause (b) of sub-section (1) of section 9A;
- The manner of collection of stamp-duty on behalf of the State Government by the depository from the issuer under clause (c) of sub-section (1) of section 9A;
- The manner of transfer of stamp-duty to the State Government under sub-section (4) of section 9A; (e) any other matter which has to be, or may be, provided by rules.
STAMP DUTY ON SECURITIES IN DEMATERIALISED FORM
- Stamp duty for transfer of securities in DEMAT Form – Before the amendment Act, no stamp duty was imposed on the transfer of securities in demat form. Thus, through the amendment it is proposed to this exemption and provided that such transfer in demat or electronic form must not be free from stamp duty and accordingly duty must be levied.
- Collection of stamp duty from transfer of securities in DEMAT Form – By the amendment act, it is proposed that a proper procedure was introduced to collect the stamp duty imposed on securities transfer in demat form. Section 9A deals with the collection of the duty in case of transfer, sale and issue of securities in case of demat form along with other form of transfer
TRANSACTION LIABLE FOR STAMP DUTY
1. Sale of securities through stock exchange – the onus is upon Buyer to pay the stamp duty. The said duty is paid at the time of settlement of transaction, and duty is place on trading price.
2. Sale of securities otherwise than through stock exchange – Transferor pays the duty, which is to be paid at the time before executing transfer. It is placed upon consideration which is specified in the instrument.
3. Transfer of securities through a depository – Seller has the duty to pay the stamp duty before the executing the transfer. It is placed upon consideration which is specified in the instrument.
4. Issue of security otherwise through a stock exchange or depository – Transferor has the duty to pay the stamp duty at the time of issue of securities. It is placed upon consideration which is specified in the instrument.
5. Issuing of security through a stock exchange or depository or otherwise – Issuer has the duty to pay the stamp duty at the time of issue or change in the records of the depository. It is placed upon consideration or on issue price.
6. Offer for sale, private placement, tender offer or open offer through stock exchange or depository – Offeror has the duty to pay the stamp duty, which is paid once the offer is completed. It is placed on the offer price.
7. Issue of any other instrument not specified in Section 29 of the Indian Stamp Act 1899 – Person who makes, draws or executes such instrument
RATE OF STAMP DUTY
The rates before the amendment act, the stamp duty was payable at the rate of 0.25% of consideration of the shares on transfer. Also, other than the duty on share certificate to the shareholder no such stamp duty on issue of shares. However, by the amendment to Schedule I Article 56A was inserted – Securities other than Debentures (referring section 9A and 9B)[8].
DEBENTURE AND [9]SECURITIES OTHER THAN DEBENTURES
i.Issuance of debentures : 0.005%
ii. Transfer or re-issuance of debentures : 0.0001%
iii. Issuance of securities other than debentures : 0.005%
iv. Transfer of securities other than debentures on delivery basis : 0.015%
v. Transfer of securities other than debentures on non-delivery basis : 0.003%
DERIVATIVES
i. Futures (equity and commodity) : 0.002%
ii. Options (equity and commodity) : 0.003%
iii. Currency and interest rate derivatives : 0.0001%
iv. Other derivatives : 0.002%
GOVERNMENT SECURITIES : 0%
REPO ON CORPORATE BONDS : 0.00001%
CHANGE IN IMPLEMENTATION DATE
Further, the Central Government by its power conferred upon it through the Finance Act 2019 amended the provision of the Finance Act 2019 by the notification S.O. 1226(E) dated 30 March 2020. The amendment to the Indian Stamp Act through the Finance Act 2019 [Part I Chapter VI] to change the date of collection of the stamp duty on securities market instruments through stock exchange and depositories will come into force from 1 July 2020 postponing it 3 months later as earlier the implementation was effective from 1 April 2020. The change was brought only into the month from which the collection would be processed and therefore the financial year to bring the amendment into force will still be 2020.
CONCLUSION
The act was amended with intent to have a proper rationalized manner for levying stamp duty which will directly help to curb the problem of tax evasion. The act was bought to have a uniform manner to impose stamp duty on transfer of share that will be followed by every state. Also, the CG with the amendment had an objective to promote the electronic mode for transfer of securities for stamp duty. By the amendment, revenue to the state government was created. By such a system of the trading system, the mechanism of the collection and implementation of stamp duty by the different collecting authorities was streamlined in one procedure. In addition, this will bring a major change in the stock exchange. The intention behind the amendment was to create more revenue by such levy of stamp duty and have a stabilize collection status of revenue.
References:
[1] The Indian Stamp Act, 1899, § 2 r.w. Clause 11, the Finance Bill, 2019.
[2] The Indian Stamp Act, 1899, § 8A r.w. the Finance Bill, 2019, Cl 14.
[3] The Indian Stamp Act, 1899 – Amendments- w.e.f. April 1, 2020, available at https://www.indialaw.in/blog/blog/commercialcorporate/the-indian-stamp-act-1899-amendments-w-e-f-april-1-2020/.
[4] The Indian Stamp Act, 1899, § 9A r.w. the Finance Bill, 2019, Cl. 15.
[5] The Indian Stamp Act, 1899, § 21 r.w. the Finance Bill, 2019, Cl. 16.
[6] The Indian Stamp Act, 1899, § 64A r.w. the Finance Bill, 2019, Cl. 18.
[7] The Indian Stamp Act, 1899, § 73A r.w. the Finance Bill, 2019, Cl.19.
[8] The Indian Stamp Act, 1899, Sch. – I, r.w. the Finance Bill, 2019, Cl. 21.
[9] Ibid.
Labour in India constitutes the backbone of the Indian economy. It is imperative for a developing country to have a healthy economy and to actively facilitate economic development. Economic development implies not only creation of jobs for all but also to ensure a work environment conducive for work, growth, safety and dignity. Therefore, India being a welfare state takes on the responsibility to provide to its workforce greater number of jobs, appropriate wages and ensure a higher standard of living than the status quo. The Central and the State Governments along with the Ministry of Labour and Employment remain focused at providing to its workforce a safe working environment and protecting their welfare for the labourers in both organized and unorganized sectors.
In furtherance of the above mentioned objectives, the Ministry of Labour and Employement on recommendation of the 2nd National Commission on Labour has consolidated the central labour laws into four comprehensive codes with the aim of amalgamating the present set of laws. The labour laws have been neatly simplified into the below mentioned four Codes:
Labour Code on Wages.
Labour Code on Industrial Relations.
Labour Code on Social Security and Welfare.
Labour Code on Occupational Safety, Health and Working Conditions.
The welfare state of India, its economy and the laborers require from the Government of India that a comprehensive legislation protecting its labourers be curated in order to ensure social justice. The central aim of a Labour Code should be to ensure appropriate standards of wages, healthy working conditions etc. India, at present has various laws to regulate the labourers in the country however, the existence of a wide number of legislations which often overlap various legal issues leaving the labourers no single law to resort to. Further, the existence largely unemployed workforce in the country, there is low levels of productivity and no value addition to the labourers. Most importantly, one major weakness of the Indian economy is the informalisation of its labour leading to no job security. In the background of such a unstable labour conditions, the archaic laws of the country would not stand to serve its workforce. Therefore, it was imperative that the Government of India acts to initiate the codification of of previously existing labour legislations in India and enact the Labour Code, 2019.
The Labour Code, 2019 can be comprehensively understood by elaborating upon the below mentioned sub-codes:
The Labour Code on Wages: The Code on Wages, 2019 has been approved by the Lok Sabha and Rajya Sabha on 30th July, 2019 and 2nd August, 2019 respectively. The intention of the proposed Code was to amalgamate the important provisions of four central labour laws w.r.t. wages namely, the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Payment of Bonus Act, 1965 and the Equal Remuneration Act, 1976. The Code highlights and deals with the following issues:
It aims to provide a definition for ‘wages’ which includes salary, allowances, and other components expressed in monetary terms. It also provides with a distinction between a ‘worker’ and an ‘employee’.
It aims to set a common standard for wages and its timely payment.
It aims to compel the Central Government to set a Floor Wage post factoring in minimum standards of living.
It aims to ensure the existence of a mechanism which facilitates the transfer of wages to labourers via electronic means.
It aims to fix the number of hours constituting a day and the subsequent overtime pay which must be given to the labour which must be twice the amount of the pay.
It aims to prohibit gender discrimination.
The consolidated code has a two-fold benefit: one for the employers to be able to understand and comply with one law and thereby serve the needs of its workers, and secondly for the workers themselves to be aware of their rights and duties and to be able to resort to the law in case of its violation.
The Labour Code in Industrial Relations: The Code summarizes three central government labour legislations namely the Trade Unions Act, 1926, the Industrial Employement (Standing Orders) Act, 1946 and the Industrial Disputes Act, 1947. The Code highlights and brings to the surface the following issues of law:
It aims to provide coherent and universal definitions of various labour law terms so to avoid any previously existing confusion due to the existence of the overlapping legislations.
It also aims to provide wages and social security benefits for fixed term employees which are at par with the regular employees having the same job.
It states that a company may lay off any number of people upto a threshold of 100 without government’s permission.
It also mandates for the companies to create a re-skilling fund to be used for upskilling of the retrenched workers.
It has been reported that the Code does not meet the expectations of the workers and cripples the unions in existence by incapacitating the unions of their right to bargain, strike and represent their interests. On the other hand, the Code facilitates the employers to engage with workers based on their needs and also helps them to resort to one comprehensive law for all compliances.
The Labour Code on Social Security and Welfare: The draft of the Code circulated by the Ministry via a letter dated 17th September, 2019 seeks to consolidate and amalgamate 11 previously existing labour laws namely, the Employees’ Compensation Act, 1923, the Maternity Benefit Act, 1961, the Payment of Gratuity Act, 1972, the Unorganized Workers’ Social Security Act, 2008, the Iron Ore Mines, Manganese Ore Mines, Chrome Ore Mines Labour Welfare (Cess) Act, 1976, the Beedi Workers Welfare Cess Act, 1976, the Beedi Workers Welfare Fund Act, 1976, the Cine Workers Welfare Fund Act, 1981, the Building and Other Construction Workers Cess Act, 1996 and Chapter IV and V of the Building and Other Construction Workers Act, 1996. In addition to the consolidation of all the above mentioned laws, it also seeks to introduce various new initiatives for social security of the workers of the unorganized sector. There are five major highlights of the Code which are as follows:
The workers of the unorganized sector are not entitled to insurance, provident fund, life cover, old age protection and other suitable welfare schemes as per the Central Government notification issued from time to time.
It is to be noted that Employee Provident Fund Organisation (EPFO) and Employee State Insurance Corporation (ESIC) are corporate bodies which implies that these bodies will not become more structured.
The gig and the platform workforce in India will also be entitled to health benefits, maternity benefits, disability insurance etc.
The Code entitles every woman to a maternity benefit at the rate of average daily wage for a duration of the period of her absence starting one day before the date of delivery and until any day after the delivery.
The Code aims to amalgamate existing laws removing all inconsistencies and irregularities in the laws.
Therefore, it is stated that the Code on the whole aims to bring under the ambit of labour laws the current 90% worker population that is not covered under social security and to include the unorganized sector under the ambit of the law.
Labour Code on Occupational Safety, Health and Working Conditions: The Code was introduced by the Ministry on 23rd July, 2019 pursuant to the recommendations made by the Report of the Second National Commission on Labour on Occupational Safety, Health and Working Conditions of the Workers. The Code envisaged consolidating 13 existing legislations such as the Factories Act, 1948, the Contract Labour (Regulation and Abolition) Act, 1970, the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, and The Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981, etc. The Code envisages the following objectives to be achieved:
The Code is envisaged to be applicable to all establishments relating to business, trade, industry, factory, dock etc.
The Code aims to formulate a single procedure to be followed for registration for all kinds of establishment.
The Code prohibits the employment of employees if the establishment is not registered.
The Code mandates that all employers are responsible for providing to its employees a healthy working environment, safety against hazards, providing them with annual health checkups.
The Code also provides that the Government may prohibit the employment of women in case such employment is dangerous for their health and safety.
The Code is a positive step towards achieving more flexibility of laws in coherence with the needs and demands of the workers in the country. However, the Trade Unions are of the opinion that the worker’s safety has not been taken into consideration and have demanded a review of the same. It has been strongly out forth that the safety provisions have been shockingly diluted.
One of the major bills introduced in the parliament is the Labour Code, 2019; however, the Code is at the receiving end of criticism from the Trade Unions. Although the Code envisages expanding its applicability and bringing under its ambit more workers but at the same time, it also curbs unions and their strikes which hits at the very essence of the union and thereby weakens their bargaining position which is not healthy for the workers. Further, it is suggested that the Government must formulate a legislation which pleases the workers of the countries as well the employers so as to make the most of the situation.
The Parliament has given its approval to the Mineral Laws (Amendment) Bill, 2020 after it had been adopted by the Rajya Sabha on 12th March, 2020.
The proposed legislation envisages to bring Amendments in the various provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) and the Coal Mines (Special Provisions) Act, 2015 (CMSP Act), while replacing the ordinance for amendment that was promulgated on 10th January, 2020.
The Mines and Minerals (Development and Regulation) Act, 1957 had been enacted to ‘provide for the development and regulation of mines and minerals under the control of the Union’ while The Coal Mines (Special Provisions) Act, 2015 was enacted to ‘provide for allocation of coal mines and vesting of the title, right and interest in and over the land and mine infrastructure along with providing mining leases to the successful bidders and allottees.’
Before this Amendment, the mines that were allocated through auctions could start mining operations only after procuring as many as twenty clearances from various Government agencies that caused inordinate-delay in commencing the mining operations and subsequent production of the minerals. To subdue the abovementioned difficulty, it was imperative to bring certain altercations so as to facilitate seamless transfer of all valid rights, approvals, clearances, licenses and other requisites to the new lessee for a period of two years in case of minerals other than coal, lignite and atomic minerals.
This would expedite the process of the implementation of projects, lead to simplification of procedure and most importantly proselytize “Ease of doing business” while benefiting all the parties in the area where minerals are located. The amendment would also facilitate the country in becoming self-reliant in the sector by ensuring uninterrupted supplies of coal and other raw materials to the thermal plants and similar industries. Additionally, the amendment would also allow the companies that do not have any prior experience of coal mining in India to participate in the auction of coal and lignite blocks which would lead to a reduction of the monopoly of Coal India and increase Foreign Direct Investment in the sector.
· The prior approval of the Central Government shall not be required by the State Governments in granting licenses for coal and lignite in some ascertained cases.
· The State Governments have now been entitled to undertake an advance auction i.e., auction for the mining lease before the expiration of the current lease period.
· The new successful bidder of mining leases selected through the auction shall be deemed to have acquired all valid rights, approvals, clearances, licenses and the like vested with the previous lessee for a period of two years but the new lessee shall have to apply and obtain the same within a period of two years from the date of the grant of the new lease.
· A new type of composite license called prospecting license-cum-mining lease in respect of coal or lignite has been introduced.
· Companies have been allowed to carry on coal mining operations for own consumption, sale or for any other purposes, as may be specified by the Central Government.
· The companies that do not have a prior experience of coal mining in India or in other countries or any other mineral would still be allowed to participate in the auctions for the coal and lignite blocks.
· The companies that do not engage in the specified end-use would be allowed to participate in auctions of Schedule II and III coal mines after this amendment.
Presently, upon the termination of the lease period, the mining leases for specified minerals were transferred to the new lessee through auction but various statutory clearances were required before initiating the mining operations. But through this amendment, the various approvals, licenses and clearances that were given to the previous lessee shall be automatically extended to the successful bidder for a period of two years.
Under the MMDR Act, mining leases were auctioned only after the expiration of the lease period but now after this amendment, the state governments can take an advance auction of a mining lease before its expiry so that the new leaseholders can be decided before the current lease period ends. This will ensure smooth production of minerals in the country.
The new amendment provides for prospecting license-cum-mining lease, while formerly different licenses had to be procured for prospecting and mining of coal and lignite.
In the present scenario, companies that have acquired Schedule II and III coal mines through auctions can use the coal produced only for specified end-uses like power generation and steel production, but after this amendment, the companies shall be allowed to carry mining operations for own consumption, sale or any other purpose as may be specified by the Central Government.
Under the MMDR Act, the state Governments are required to have the prior approval of the Central Government for granting reconnaissance permit, prospecting license or mining lease but after this amendment, the same shall not be required in the cases where either the allocation has been done by the Central Government or where the mining block has been reserved to conserve a mineral.
Significance of the Medical Termination of Pregnancy (Amendment) Bill, 2020
In the last week of January 2020 a significant development took place when the Ministry of Health and Family Welfare proposed an amendment in the Medical Termination of Pregnancy Act,1971: to increase the time period allowed for termination of pregnancy from the current 20 weeks time period to 24 weeks and the same was approved by Union Cabinet after due deliberations. This is a step in the right direction because with the advent of new technologies, many abnormalities which used to went undetected can now be detected but that can be done only after the fetus has developed to certain extent. And the current Medical Termination of Pregnancy Act,1971 acts as a hindrance to terminate fatal pregnancies because there is a upper limit of 20 weeks.
The controversial act has been in news for quite a time now as in the year 2014 the Constitutionality of Section 3 of the act was challenged in the Supreme Court of India by the way of writ petition filed by Human Rights Law Network on the ground that it violates the Fundamental Rights to life, health, dignity and equality of women as the 20 weeks time period is arbitrary and outdated.
In year 2019, activist Amit Sahani also filed a Petition in the Delhi High court demanding changes in the existing law. The petition challenged Section 3(2)(b) of the existing Act, demanding the pregnancy period for abortions to be raised to 24-26 weeks from 20 weeks, in case of a health risk to the mother or the fetus.
So it will not be wrong to say that the proposed Amendment was long due and the proposed Amendment will be a step in the right direction because it will provide for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social ground. It is a step towards safety and well-being of the women and many women will be benefited by this. This Amendment has been proposed keeping in mind vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc. Another important provision of the proposed Amendment is that the name and other details of the woman whose pregnancy has been terminated shall not be revealed except to a person authorized by the law. This will provide a sense of security to the women coming from a male dominated society.
Though the Government has taken a major step but they have made the process of abortion more tough by adding provision like anyone seeking abortion between 20-24 weeks will need the approval of two physicians to go through the process, which makes this process far less accessible for many women, especially women from the marginalized sections and rural communities, who may not have access to any medical practitioners.
Also, if a pregnancy has to be terminated between the 5th (20 weeks) and 6th month (24 weeks) due to fetal abnormalities, the permission of a medical board is required, which again may be hard for many to access, and for those who can, it might be a long bureaucratic process, making the abortion a very cumbersome process. But as rightly said by someone, something is better than nothing. The government of India has taken the initiative to amend the 49 year old and outdated law and maybe in coming years these rules will also be changed and the process of abortion will be made simpler so that no women suffers.
The Amendment will have far reaching effect on the Indian society where Abortion is still considered as a social stigma and taboo and there is lack of information among women regarding their reproductive health due to which millions of women ends up losing their life due to non availability of medical care and lack of knowledge
Nevertheless, the Amendment, if passed, will be a victory, albeit a small one, for women's reproductive rights.
Tax evasion is defined as the illegal non-payment or under payment of tax by an individual. The Oxford dictionary defines tax as ‘A compulsory contribution to state revenue, levied by the government on workers’ income and business profits, or added to the cost of some goods, services, and transactions.’
For a nation to prosper on social and economic indicators, an efficient tax system and collection is critical. However, tax evasion or fraud by individuals or companies is akin to cancer which threatens to infect and damage a nation’s economic system.
Not Filing Income Tax Returns: If a taxpayer is required to file income tax returns before the due date as required under 139(1) of Income Tax Act and fails to do so, the assessing officer can impose a penalty of INR 5,000 or more.
Failure to Pay Tax as Self-Assessment: As per Section 140 A (1) of the Income Tax Act, if a taxpayer fails to pay wholly or partly—self-assessment tax or interest and fee or both, the taxpayer is declared as a defaulter. The assessing officer can as per Section 221(1) declare the taxpayer as a defaulter and impose a fine that does not exceed the tax in arrears. However, if the taxpayer is able to provide sufficient proof for default, the assessing officer can exempt the taxpayer from paying the penalty.
Failure to Comply with Demand Notice: If a taxpayer receives a demand notice asking for tax payment, the taxpayer has to pay the requisite amount in 30 days to the name and department mentioned in the notice. Failure to do so will result in further penal provisions and the taxpayer will be treated as a defaulter.
Failure to Get Accounts Audited: If a taxpayer receives a demand notice asking for tax payment, the taxpayer has to pay the requisite amount in 30 days to the department mentioned in the notice. Failure to do so will result in further application of penal provisions and the taxpayer will be treated as a defaulter. Section 92(E) requires the taxpayer to furnish a report. Failure to do so will incur a penalty of INR 1 lakh or more. If any document is not furnished or attached, a penalty of 2% of the transaction’s value (international or domestic) is levied under Section 92(D).
Concealment of Income: Income concealment to not pay tax is a disease that needs eradication before its effect throws the economy into a downward spiral. Under section 271(C) of Income Tax Act, there is a 100% to 300% penalty of the tax evaded if someone is caught concealing tax. The tax evasion penalty varies under certain conditions which are as follows:
•If the taxpayer admits to the concealed tax, he or she will have to pay 10% of the previous year’s undisclosed income along with interest.
•If the taxpayer does not disclose the undisclosed amount but does so in the return of income furnished in the previous year, 20% penalty of the undisclosed amount along with an interest is levied.
•If the previous year’s amount is undisclosed, the minimum penalty that can be levied is 30% and the maximum is 90%.
Failure to comply with Income Tax notice: When the Income Tax department issues a tax notice, the recipient taxpayer has to comply. Failure to comply enables the assessing officer to send a notice under Section 142(1) or 143(2) asking the taxpayer to:
•File the return of income.
•Furnish in writing all details of assets and liabilities.
To Boost The Economy, the cabinet will soon consider a proposal to amend the Companies Act to decriminalize about 44 of 66 offenses, including corporate social responsibility (CSR) violations and non-filing of returns. It will also consider easing remuneration norms to allow loss-making companies to offer higher salaries to key managerial personnel, a senior government official said. Proposed changes have been drawn from the report of the Company Law Committee (CLC).
In her address on the "roadmap to a $5 trillion economy" at the Nani Palkhivala centenary celebrations in Chennai on 19 January 2020, the Finance Minister Nirmala Sitharaman said that decriminalizing corporate laws, settling tax disputes and rapid privatization of state-run firms were among the steps that the government will take to achieve the of $5 Trillion economy.
The Minister said that the Government has already identified the statutory changes to be made in the Companies Act to decriminalize several procedural lapses and those that do not affect public interest as part of efforts to reduce the rigors of compliance and to improve ease of doing business.
The Government is planning to amend about 46 penal provisions to either remove criminality, or to restrict the punishment to only fine, or to allow rectification of defaults through alternative methods, which would help to de-clog the criminal justice system in the country. The intention of the Minister of Finance is to extend this exercise to laws dealing with income tax and money laundering. The Crux of the Finance Minister’s address was that the Government is working to decriminalize companies and ensure that no other Acts including Income Tax Act and PMLA have such provisions.
With these, the wheels have been set in motion for decriminalizing a substantial number of provisions in the Companies Act 2013 that are technical or procedural in nature, and to replace the punishment of imprisonment with civil liabilities and/or monetary fines. Only serious offenses will attract a jail term. Recently, the government moved to criminalize non-compliance with corporate social responsibility (CSR) provisions, which resulted in an immediate outcry from industry. But better sense prevailed, and it was clarified that CSR violations would be treated only as a civil liability.
Decriminalization of some of these business laws would have twin benefits of adding to the “ease of business” climate in the country, and will also lower the burden on the judiciary. There is no proven evidence to suggest that criminal sanction reduces the propensity of non-violations in business, and it may just set the stage for arriving at a judicious balance between criminal sanction and civil liability.
Senior Advocate and Congress leader Abhishek Singhvi is set to table a private member bill in the Upper House that calls for enforcement of a two-child norm through incentives and disincentives, providing measures to control the population in the country. Formerly, Singhvi had announced his plan to introduce the Population Control Bill during last year’s winter session of the Parliament but now the Bill is going to be introduced in the Rajya Sabha during the current session.
The Bill introduces incentives for Population Control and provides for the constitution of a National Population Stabilization Fund. While steps like population control and enforcement of two child norm for the Central Government employees have been provided as immediate measures; providing contraceptives and encouraging family planning have been considered relevant in playing a stronger role in decreasing the population growth rate in the long run.
Presently, India adds 15 million people to its population base every single year which is by far the largest in the world and is projected to become the world’s most populous country by 2024, while accounting for about 17 per cent of the world population with only 2.2 per cent of the world’s land mass. This increasing population has resulted in an increasing pressure on the country’s limited natural resources because of which, we have witnessed a range of socio-economic issues in the past few decades such as large-scale environmental degradation, urban air pollution and the reduction in the size of agricultural holdings.
Furthermore, the state of infrastructure in our country has failed to meet the demands of the growing population as most parts of the country still suffer in the absence of basic education and health facilities. Although, India has made significant progress in decreasing population growth with a declining fertility rate, according to the United Nations World Population Prospects report, the population in the country shall continue to increase up till 2050.
Given the array of socio-economic issues arising as a result of overpopulation, it is important that India as a country starts focusing on steps to decrease population rather than just stabilizing it. Additionally, the population growth is quite uneven across the country. While some states have been able to successfully stabilize their population, the northern states have witnessed and continue to witness high population growth. It is therefore essential to focus on specific districts with high population growth rates to tackle the problem effectively.
Section 3: Application of the Act
The proposed legislation shall be applicable only to those married couples where the age of the boy is not less than twenty-one years and the girl is not less than eighteen years of age.
Section 4: Availability of Contraceptives
The Central Government shall ensure that the contraceptives are available at reasonable rates at all sub-health centers in the country.
Section 5: Setting of District Population Stabilization Committees
A district level monitoring committee shall be set up by an appropriate Government in hundred districts which have the highest recorded population growth rates. This committee shall be known as the District Population Stabilization Committee and will take steps to encourage the use of contraceptives and control the population growth rate in their concerned district.
Section 6: Benefits to couples who opt to undergo sterilization/ operation
If a married couple has only one child and both the husband and the wife voluntarily undergo sterilization/ operation, then the appropriate Government shall provide them with the following benefits:-
(a) Preference shall be given to a single child for admission in the institutions of Higher Education;
(b) Such preference to a single child would also be given in the Government jobs.
(c) Other such benefits as may be prescribed by the appropriate Government.
Section 7: Special Benefits to couples living below poverty line
If the couples living below the poverty line have only one child and they voluntarily undergo sterilization/ operation, they shall be further eligible for a one-time lump sum amount of Rs. 60,000 if the single child is a boy and Rs. 1 Lakh in case where the single child is a girl.
Section 8: Disincentives to couples having more than two children
Section 8 of the Bill enlists the disadvantages that married couples who have more than two children would have to face. They shall be debarred from:
· Contesting in the elections to the Lok Sabha, State Legislature, and Panchayats;
· Getting elected to Rajya Sabha, the State Legislature, and other similar elective bodies;
· Getting a promotion in the government services;
· Applying to ‘Group A’ jobs under Central and State Governments;
· Receiving a Government subsidy when the married couple is Above the Poverty Line.
Section 9: Introducing Population Control in School Curriculum
A compulsory subject concerning population control shall be introduced by the appropriate Government in all senior secondary schools in States with average fertility rate more than the replacement level of 2.1 children per woman.
Section 10: Constitution of National Population Stabilization Fund
National Population Stabilization Fund shall be instituted by the Central Government and the Central Government and the State Governments would contribute to this Fund in such a ratio as may be determined by the Central Government.
The States with higher fertility rate shall contribute in higher proportions as compared to the States with lower fertility rate and the money collected shall be redistributed to the States and Union Territories that have undertaken reforms to control population and have been able to significantly reduce their population growth rate.
Section 12 and 13: Provisions for Central Government Employees
All Central Government employees shall have to submit an undertaking in writing to the respective appointing authority after one year of commencement of this Act, enunciating that they shall not procreate more than two children and the employees who already have more than two children shall submit an undertaking that they shall not procreate any more children.
The Central Government when recruiting employees shall give preference to candidates that have two or less than two living children.
Tabling of the bill is yet to take place, passing of it a far-away process. But in the current scenario when India is struggling with population explosion, this bill will work as a remedy.
Introduction
The deadly COVID-19 has claimed over 23,372 lives all across the world and is gradually increasing with each passing day. The World Health Organization has declared COVID-19 outbreak as a pandemic.
The outbreak of COVID-19 has forced the Indian Government to invoke the Epidemic Diseases Act. It is a 123 year old law which was first introduced at the time of outbreak of plague at Bombay.
On the 11 March 2020 Cabinet Secretary of India announced that all states and Union territories should invoke the Epidemic Diseases Act, 1897, to provide for prevention of the spread of “dangerous epidemic diseases,” to fight the novel coronavirus in India. This Act empowers a person to take certain measures and prescribe temporary regulations to prevent the outbreak of a disease or its spread. Whenever there is an outbreak of an epidemic, the government can impose the Act if it thinks that ordinary provisions of the law, which are in force, are insufficient to contain an epidemic.
What does Epidemic means?
An ‘’epidemic’’ word comes from word ‘’ epidemos’’ the Greek word where the "epi" means "upon or above” and word "demos" means "people or population". So the meaning of that word is “upon the population”. Epidemic is rapid spread of disease to a large number of people in a given population within a short period of time.
A disease that spreads to a large amount of population within a short span of time is known as an epidemic disease”. Severe acute respiratory syndrome (SARS) that happened in the years 2003.
What is Epidemic Diseases Act, 1897?
This colonial-era law was meant to "to provide for the better prevention of the spread of dangerous epidemic diseases". The Epidemic Diseases Act was introduced by the British to tackle the epidemic of bubonic plague that broke out in the then state of Bombay. It was passed in 1897. The then Governor-General of colonial India had conferred special powers upon the local authorities to implement the measures necessary for the control of epidemics including restricting the number of persons gathering.
The Epidemic Diseases Act is one of the shortest Acts in India, comprising just four sections. But being short does not deprive it of its power. The first section explains the title and the extent, while the second gives powers to the state and Central governments to take special measures and formulate regulations that are to be observed by the people to contain the spread of disease. The third section describes penalties for violating the regulations, in accordance with Section 188 of the Indian Penal Code. The fourth deals with legal protection to the implementing officers acting under the Act.[1]
Description of the act
Section 1 says that the act may be called as Epidemic Diseases Act, 1897 and it extends to the whole of India except the territories which immediately before the 1st November, 1956 were comprised in Part B states.
Section 2 states that when the state government is satisfied that the state or any part thereof is visited by or threatened with an outbreak of any dangerous epidemic disease; and if it thinks that the ordinary provisions of the law are insufficient for the purpose then the state may take, or require or empower any person to take some measures and by public notice prescribe such temporary regulations to be observed by the public. The state government may prescribe regulations for inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.
Section 2A empowers the central government for inspection of any ship or vessel leaving or arriving at any port and for detention thereof, or of any person intending to sail therein, or arriving thereby.
Section 3 prescribes penalty for disobeying any regulation or order made under the Act is in accordance with section 188 of the Indian Penal Code. Under this provision, a punishment of 6 months imprisonment or 1,000 rupees fine or both shall be meted out to the person who disobeys any order under the Act.
A provision pari material to this is in IPC is Sec. 269 which defines the ‘negligent act likely to spread infection of disease dangerous to life’ which states that- whoever unlawfully or negligently does any act which is, and which he knows or has reasons to believe to be, likely to spread infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term that may extend up to 6 months, or with fine, or with both.
Section 4 clearly mentions that no suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act. It also allows the central government to “take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in (the territories to which this Act extends).”
Instances where the Act was applied
· In 2018, the district collector of Gujarat’s Vadodara issued a notification under the Act declaring the Khedkarmsiya village in Waghodia taluka as cholera-affected after 31 persons complained of symptoms of the disease.
· In 2015, to deal with malaria and dengue in Chandigarh, the Act was implemented and controlling officers were instructed to ensure the issuance of notices and challans of Rs 500 to offenders.
· In 2009 it was invoked in Pune to combat swine flu (H1N1).
· In March 2020, the act is being enforced across India in order to prevent the spread of Coronavirus disease.
Limitations of this act
The Act was formulated about 123 years ago and thus has major limitations in this era of changing priorities in public health emergency management. The factors leading to the emergence and spread of communicable diseases have also changed over the years.
The century old Act over the years has accumulated quite a number of flaws which can be attributed to the changing priorities in public health emergency management. In a 2013 paper, medical scholars Binod K Patro, Jaya Prasad Tripathy, and Rashmi Kashyap questioned the efficacy of the Act, given its vague language and non-specific definitions. Epidemic Act 1897 is silent on the definition of dangerous epidemic disease. Apart from isolation or quarantine measures, the Act is mum on the legal framework of availability and distribution of vaccine and drugs and implementation of response measures. There is no explicit reference pertaining to the ethical aspects or human rights principles during a response to an epidemic,” they observed.
Moreover, it being a century old act, the territorial boundaries of the act needs a relook. Apart from the isolation or quarantine measure the act is mum on the legal framework of availability and distribution of vaccine and drugs and implementation of response measures.
The punishment for violation of regulations under section 188 of Indian Penal Code also warrants a revision. Can section 188 IPC guarantee justice to all those who suffered from the plague epidemic which cost the Indian economy over $600 million and took the toll of hundreds of lives is a big question, and we certainly have no answers to that.
Although India has a number of legal mechanisms to support public health measures in an epidemic situation, they are not being addressed under a single legislation. There is an urgent need to assemble all the provisions in one over-arching public health legislation, so that the implementation of the responses to an epidemic can be effectively monitored.
Current Scenario
This Act came into force in 11 March 2020, across India in order to limit the spread of coronavirus disease 2019. The biggest lockdown of its kind in human history is being observed. While the WHO declares the disease as Pandemic, the States observe it as an Epidemic disease. Due to the number of infected cases increasing every day, the PM Narendra Modi advises people to stay wherever they are.
With a full curfew imposed, the States are maintaining their own Regulations. “The government of Himachal Pradesh has announced The Himachal Pradesh Epidemic Disease (COVID-19) Regulations, 2020. Similarly, the Delhi government has announced The Delhi Epidemic Disease (COVID-19) Regulations, 2020 and the state of Maharashtra too following the other states, has announced The Maharashtra COVID-19 Regulations, 2020. Currently, the State of Bihar goes under complete lockdown due to the Epidemic Disease Act being invoked by the State Government. A complete seal of any geographical area where any positive case is found is being followed by the Government”.
Since the outbreak of Corona Virus or Covid-19 in China, this horrendous infection has spread more fiercely than a forest blaze. The power of the transmission is with such agility that it has just been pronounced a pandemic. The Land and Air Borders have been shut by numerous countries. Nearly about a million people the world over are catching this viral infection. The circumstance has exacerbated in view of the apathetic mentality of the world towards such episode and absence of foresightedness. Since it is an infection which is transmitted from human contact, it was thought that it could be contained by secluding the individuals who are effectively affected by the disease. Nonetheless, here we are in the grasps of this yet so small however a beast.
As of late, it has begun spreading in India, the first case being reported on 30th of January. Since, the healthcare and Sanitation services in India are not at par with many developed nations, it was extremely keen of the administration to immediately cause into action to contain the infection by announcing a total lockdown. Though, there are ramifications of this lockdown, it appears the far reaching venture to handle the circumstance from compounding.
In the light of the lockdown, I have taken up the laws and guidelines with respect to pandemic in India and its readiness in controlling such dangers, for study. Prior to this, there have been occasions of pandemic and different illnesses at different points of time. However this flare-up is exceptional. This episode compels one to re-evaluate the law administering such circumstances.
The pervasive circumstance and the bedlam in the midst of the breakout bring the Epidemic Diseases Act, 1897 into play. Be that as it may, with this into picture a few inquiries identified with the legitimacy of the law are cropping up. Since, this is a pre-independence law it must be weighed with the constitutional values and different benchmarks built up by the law.
What is Epidemic Diseases Act, 1897?
The Epidemic Diseases Act, 1897 (hereinafter referred to as the ‘Act’) is an expansive enactment and includes a wide exhibit of situations where it is not relied upon of the governmental authority to adapt up to the law in power at present. In such circumstance this law comes into picture where there is episode of scourge sicknesses and the governmental machinery is hampered. The objective of the legislature is to accommodate better prevention of the illnesses and under section 2 of the Act vests the state government with the power to control the circumstance as health falls under the state list.
Whether the Powers given to the Central Government under the Act is very restrictive?
Presently, the significant thought is whether the power given to the central government is prohibitive or not. It is well open for debate that the power conferred upon the Central Government under the Epidemic Diseases Act, 1897 is prohibitive. Be that as it may, the power vested by the Indian Constitution specifically the emergency provisions bring the central government to the forefront as far as directing the critical circumstance is concerned. The term ‘internal disturbance’ according to Sarkaria Commission report envelops circumstance like epidemic and along these lines Central Government has no limitations.
Nonetheless, one may contend that why the central government is not enabled in the nascent stage of battling the infections because of epidemics. In my opinion, as public health is a state subject Central government must decline meddling and what's more may aid the state government under section 2A of the Act. In the current situation, the Disaster Management Act comes into picture under which the legislature has told COVID-19 to be a debacle and has given directions and set up funds under the same.
Hence, India's lawful and Regulatory Framework is skilled, sound and resilient to handle dangers like this. Be that as it may, some minor changes regarding job of Central Government must be thought of.
Whether this legislation still holds good in the light of prevailing problems?
The power given to the central government is exceptionally prohibitive in nature in contrast to that of state governments. Up to this point we have come battling the bubonic infections, cholera flu and different sicknesses with this Act. However, given the idea of the Corona its adequacy is being addressed and interest for a particular enactment is picking up force. This enactment is additionally being question as it doesn't define or characterize what ‘epidemic’ is and along these lines its endlessness prompts uncertainty.
Nonetheless, in my opinion, the extent of this enactment is extremely sound and still holds great. In any case, an expansive meaning of epidemic is to be looked for. As the definition has anyway not been given, so whenever an epidemic is pronounced the Act holds great. The definition cannot be limited as it would be hard to introduce explicit enactments each time we are confronted with such diseases or epidemics.
Whether there are other laws to complement this Act?
This inquiry drives us towards our readiness in handling such dangers. In the current situation, the laws and guidelines which supplement the Act are Drugs and Cosmetics Act, 1940, Medical Devices Rules, 2017, New Drugs and Clinical Trial Rules, 2019. These laws are in a way integral to the Epidemic Disease Act in circumstances where there is such breakout. The previously mentioned laws are however independent of the Act. The Drugs and Beautifiers Act would come into picture in the current situation as testing kits are to be readied which would be named as Medical Device under MD Rules and Drugs under Cosmetics Act.
The arrangements of the testing kits require approval from permitting authority which can be modified at situations like this. Under NDCT Rules the remedy for the fix to be tried and to acquire a permit to appropriate the remedy can be acquired for as long as 90 days in any case an unwinding can be allowed regarding time as well as process.
It is in this way exceptionally clear that the previously mentioned laws as they stand today put us on a superior footing contrasted with what the circumstance back in the days.
What is the current situation surrounding the Act?
In the current scenario in India, many states including Uttar Pradesh, West Bengal, Rajasthan, etc. have invoked the Act. The Central Government under section 2A have finally invoked the Act to combat the spate of COVID-19 pandemic in the country. Under section 3 of this Act, which says that ‘any individual defying any guideline or request made under this Act will be regarded to have committed an offense under Section 188 of the Indian Penal Code’, violators can be fined or imprisoned.
Conclusion
It is far beyond doubt that this century old Act needs a complete overhaul to cater to the changing public health priorities. Undeniably, the role of public health specialists in this regard cannot be ruled out. There is a need for an integrated, comprehensive, actionable and relevant legal provision for the control of outbreaks in India that should be articulated in a rights-based, people-focused and public health-oriented manner.
Health is a subject of the State Government and the Center cannot do much about it, it is high time that the Center should also be given powers so that it becomes a unified law. The Epidemic Disease Act runs on the old laws, it is high time to change it. our country can take lessons from Sweden where they contested in the year a regular drill practices so that people get a habit of staying in lockdown. Lastly, as highly recommended by the 15th Finance Commission, N.K.Singh, the ‘Right to Health’ should be transferred to the concurrent list of the Constitution of India.
References
[1] epidemic diseases act,1897.
The Citizenship Act of 1955 focuses about granting the Indian citizenship. It holds out the concept of giving the citizenship through birth, decent, registration or naturalization. It also provides for the Overseas citizenship being granted to holders residing outside India. Now talking about the recent development in regard to concerned act, A bill specifically named as Citizenship Amendment Bill, 2019 was passed in Lok Sabha with 311 ayes and 80 noes.
This bill seeks to change the basis of Indian citizenship by doing a religious discrimination (based on the existing minorities of the respective countries) in a legal manner. The present CAA has completely changed the definition of illegal immigrant for certain classes which includes Parsi, Hindu, Sikh, Buddhist and Christians who are immigrants and came from three countries which include Pakistan, Afghanistan and Bangladesh and lived in India without any proper documents. It provides a list of six religious minority groups: Christians, Parsis, Hindus , Christians, Buddhist and Sikhs of Bangladesh, Pakistan and Afghanistan for making them eligible to apply for the citizenship if they have lived in the country for the past six years.
But before going further it is important to know about its statement of objective and reasons for its enactment. The statement of objects and reasons were concerned about the trans-border migration of population which has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. This depicts the picture that the CAA was enacted to provide citizenship to certain classes of persons who fled from these three particular countries only.
The Act provides for granting of citizenship to concerned minorities on the grounds of persecution. Now the point of focus is required to be made to differentiate this term “ persecution” from “religious persecution” as such.
The term “religious persecution” can better be related to the situation in which religious minorities are suffering under restrictions to their religious freedom across the world. CAA also extends immunity to the migrant of the aforesaid communities so that there should be no bar from applying for Indian citizenship in respect of their status of migration or citizenship. And on acquiring such citizenship of India, such migrants shall be deemed to be the citizens of India from the date of their entry and all legal proceedings concerned with their status as illegal migrants or regarding their citizenship will be abated or stands closed.
However as per the current developments which are going on in the country led to a controversy of the discrimination against Muslims. It cannot be denied that the concerned bill provides a window for specified minorities to have Indian Citizenship. However, the Bill clarifies that the amendments proposed on citizenship to the specified class of illegal migrants will not apply to certain areas. These are:
(i) Assam tribal areas , Mizoram, Meghalaya and Tripura, which are included in the 6th Schedule in our Constitution, and
(ii) Under the Bengal Eastern Frontier Regulations 1873 the states being regulated by the “Inner Line” permit.
Now the question arises that the differentiation being made by the bill stands on the reasonable pillars or not? According to some experts it can be done as it marked the policy decision which the government of this nation is empowered to do so. However we need to have constitutional microscopic view to understand the situation.
CAA exempts certain areas in the North-East from its implementation. It would not apply to tribal areas of Assam, Meghalaya, Mizoram and Tripura as included in Sixth Schedule of the Constitution and the area covered under the Inner Limit notified under the Bengal Eastern Frontier Regulation, 1873.
In other words it means that Arunachal Pradesh, Nagaland and Mizoram along with almost whole of Meghalaya and parts of Assam and Tripura would not come in the ambit of the Citizenship (Amendment) Act. The North-Eastern states have faced a large scale migration from neighbouring countries and as a result, protests have been there from indigenous residents over the strain. There have been continuous protests against the provisions of the CAA in these states because of the legitimisation being provided to all immigrants from any country irrespective of their faith.
This amendment unfolds many new questions which will be answered in future. It is an unclear situation being engraved in the present roots. The Supreme Court can better give the answer of these pertaining questions. The Supreme Court will hear the petitions pertaining to the present issue on 22nd January, 2019. In this present case efforts has been made to have taken a neutral approach pertaining to the facts and changed situation of the said act.
Introduction
India, acknowledging the need to assimilate and prevent corrupt activities in the country, introduced a corruption prevention act back in 1988. However, despite the foresight of our legislators and the timely construction of the act, the code did not create much of a difference.[1] The legislative piece meant to control and restrict all illegal and unethical activities in the public, as well as the private sector, failed to bring about a significant change. Public officials, even after the act’s induction, made off with their illicit activities; while private corporations were never held accountable for their unlawful exploits. The state recognized the act’s intermittent failings and to make it more effectual, introduced the 2018 amendment. The amendment brought about a significant number of changes; it was India’s effort to align itself with the United Nations guidelines on corruption prevention,[2] and construct a legal provision which incorporated international standards on the restriction of illegal malversations.
A multiplicity of features such as definitive meanings for ‘undue advantage’, ‘property forfeiture’, and new rules for commercial organizations were introduced. The act which recently dealt with cases like Madhu Kodhe’s bribery charges,[3] was significantly advanced from its original form. Nevertheless, the changes made and the characteristics instituted were not enough. The legislation, despite its recent changes, forms multiple issues in the application and creates a number of modalities inconsistent with the idea of preventing corruption. A deeper analysis of the act and the judgements passed under it, preclude a number of issues. Accordingly, the aim of this feature is to analyze the prevention corruption act, cover the UN guidelines on the issue, present the current scenario around it and suggest a few measures for reform.
The United Nations Anti-Corruption Multilateral Treaty
The UN’s treaty on corruption prevention is the only international agreement outlining corruption deterrence standards for all member states. The treaty made enforceable in December of 2005;[4] formed a combination of both preventive and punitive measures that restricted cross border illegal activities and provided intergovernmental norms for subscribing nations. The department, with its head office in Vienna,[5] set some practice rules for ratifying parties to increase co-operation in international investigations and expand the efficiency of the state-based public accountability centres.[6]
The convention includes multiple elements ranging from trade influencing to asset recovery; however, there are five key tenets- criminalization, preventive measures, international co-operation, technical assistance and law enforcement.[7] All of the varying provisions of the treaty can be broadly covered under either of the above-mentioned fields. The provision, despite being restrictive and contractual, covers a variety of issues and a multiplicity of situations and at no stage becomes extensive. International asset recovery, amongst other features, has been a prominent function of the treaty to increase judicial co-operation and strengthen law enforcement mechanisms.[8] The act was originally passed by 140 member nations[9]and incorporated overarching features to ensure operational and functional accountability. Article 63 of the treaty establishes a Conference of State Parties, with UNODC as its secretariat, to increase co-operation and maintain intercontinental sustainability.[10] The conference has instituted multiple international regulations and formed various sub-committees to implement specific aspects and goals of the UNCOC.[11] India ratified the treaty in 2011 and joined the conference to enhance its domestic corruption prevention measures.
Key Facets of The Amendment and The Current Scenario
The Prevention of Corruption Amendment Act, 2018 introduced a variety of new features. A key amongst the many is the inclusion of the new guidelines for organizations to prevent their employees and other representatives from acting against the interests of the general public. Section 9[12] of the act was expanded to modify the ambit of individuals who qualify as representatives of commercial organizations. The section includes a phrase, “persons associated with commercial organizations,” which goes beyond the previously restrictive idea of only employees and covers associations as an individual in nature as vendors and distributors to impute organizational liability.
The act under section 4(4)[13] also eliminates the earlier requirement of wrapping up proceedings for corruption charges within a maximum period of two years. The judiciary was earlier required not to extend a cases’ hearing beyond twenty-four months; however, such an unnecessary restriction doesn’t exist anymore. A provision which quite a few times hampered the investigation process and estopped the prosecution from forming constructive charges and proving them in court was fortunately removed.[14] The court now has the power to grant extensions of up to six months at one hearing, with a maximum entailment period of four years.[15]
Moreover, an incredibly essential feature that the amendment added was to remove criminal liability for corrupt actions performed under compulsion.[16] Section 8 punishes individuals for attempts to bribe officials and representatives; however, the amended piece now includes a provision of exemption for any person compulsorily made to offer bribes. The act does not impute any liability if the coerced individual reports his/her actions to the police within seven days of giving a bribe.[17] The act’s new features also grant cohesive punishments- Section 9 and 10 together impute liability on both the organization’s attempting to carry out corrupt activities and the public officials facilitating them, all under one charge.[18]
The most recent action under the legislative piece has cleared all confusions regarding its retrospective applicability. It was argued in Madhu Kodhe’s v. State through CBI,[19] that the ex-chief minister of Jharkhand should be relieved of all his corruption charges in accordance with the lack of ‘Mens Rea’ of the accused to carry out his alleged charges. The court held that section 13[20] of the amendment act, does not entail any retrospective applicability and the ‘doctrine of beneficial construction’ will not be held applicable in Madhu Kode’s case.[21]
The various tenets amended and added to the act, create a much more enforceable provision; nevertheless, the code still has multiple issues in practice and application. No act can be amended to sufficiently remove all issues; however, the prevention corruption act leaves out many key features that require immediate addressal.
THE ACT’S INADEQUACIES
One of the rather detrimental changes that the amendment brought about is the increase in stronghold requirements for charges against public officials; to a certain level, diluting the instances in which a state’s officer can be held liable.[22] The amended section 13[23] holds measures of disproportionate assets such as unjust enrichment and property alleviation, as grounds to impute liability and discards the earlier simpler practice of charging criminal misconduct on an official’s attempts to indulge in illicit activities and accept bribes. The standard for the act’s application has been unfavourably increased. The act also necessitates the requirement of seeking permission applications to conduct investigations against public officials. Under section 19,[24] if an officer of the state were to be investigated for criminal charges, a barrage of permissions from different individual authorities are necessary to even bring the other interrogatory provisions of the act into play.[25]
The act along with creating problems in probing officials; also has a variety of interpretational issues.[26]It, for now, does not describe the necessary steps to be taken if the case goes beyond the new maximum time period of four years. It also leaves out many lacunas in imputing chain liability for an illegal liability. Its definition of ‘undue advantage’ uses incredibly generic terms, which may create the impression that any individual or organization related in whichever way possible, no matter how inconsequential, can be prosecuted.[27]Moreover, its bare reading also gives the impression that any organization contracting with international bodies which are involved in illicit activities, will be held liable for the international organization’s actions, regardless of the fact whether they had knowledge of the acts in question or not. This simple addition may greatly restrict India’s foreign interaction and may even Foreign Direct Investments.
Despite the multiple favourable additions in the act, and the new more efficient systems of interdepartmental transparency, the act by itself, as visible from above-mentioned factors, is not complete. It must address the new issues of accountability enforcement, interpretational inadequacies and the possibility of overarching applications. The provision for corruption prevention, in a country as economically diverse as India, must be as equitable as possible.
CONCLUSION
In an attempt to conclude the feature, the act may, in fact, have variably changed the rather ineffective operations in controlling the country’s corruption. Nevertheless, for it to be an equitable legislative piece, it must remove the newly included higher standards for liability imputation on public officials. Not only does it substantiate differentiated standards for private organizations and the government; it creates an inequitable idea for a legislative piece’s application. If the country’s rather rampant corruption trail was to be controlled and provisionally uprooted, such a decisive free hand must not exist. Consequently, the vision of our country’s legislators back in 1988 was to ensure the country’s safety from any acts which may divest citizenry rights, and in order to stand true to that testament, we must make a provision, as equitable and enforceable as possible.
[1]The Prevention of Corruption (Amendment) Act, 2018.
[2]United Nations office on Drugs and Crime, United Nations Convention Against Corruption, available at https://www.unodc.org/unodc/en/treaties/CAC/ (Last visited on May 26th, 2020).
[3]Madhu Koda v. State of Jharkhand, AIR 2012 SC 782.
[4]United Nations office on Drugs and Crime, United Nations Convention Against Corruption, available at https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf (Last visited on May 26th, 2020).
[5]U-4 Anti-Corruption Resource Centre, UNCAC in a Nutshell 2019, January 2019, available at https://www.u4.no/publications/uncac-in-a-nutshell-2019 (Last visited on May 26th, 2020).
[6] United Nations Meeting Coverage and Press releases, Battle against Corruption Vital to 2030 Agenda, May 23rd 2018, available at https://www.un.org/press/en/2018/ga12017.doc.htm (Last visited on May 26th, 2020).
[7]Supra Note. 2.
[8]UN News, UN Convention against Corruption, a tool to recover stolen assets, takes effect, December 14th 2005, available at https://news.un.org/en/story/2005/12/163672-un-convention-against-corruption-tool-recover-stolen-assets-takes-effect (Last visited on May 26th, 2020).
[9]United Nations Office on Drugs and Crime, Signature and Ratification Status, available at https://www.unodc.org/unodc/en/corruption/ratification-status.html (Last visited on May 26th, 2020).
[10] Id.
[11]Supra Note. 8.
[12]The Prevention of Corruption (Amendment) Act 2018, § 9.
[13]The Prevention of Corruption (Amendment) Act 2018, § 4(4).
[14]Supra Note. 3.
[15]Id.
[16]The Prevention of Corruption (Amendment) Act 2018, § 9.
[17]Id.
[18]The Prevention of Corruption (Amendment) Act 2018, § 9 & 10.
[19]Madhu Koda v. State of Jharkhand, AIR 2012 SC 782.
[20]The Prevention of Corruption (Amendment) Act 2018, § 13.
[21]Live Law, Prevention of Corruption (Amendment) Act 2018 Will Not Affect Offences Committed Prior To Its Enactment: Delhi HC, May 23 2020, available at https://ezproxy.nujs.ac.in:2123/news-updates/prevention-of-corruption-amendment-act-will-not-affect-offences-committed-prior-to-its-enactment-delhi-hc-read-judgment-157219 (Last visited on May 26th, 2020).
[22]Mondaq, Prevention of Corruption (Amendment) Act, 2018- Key Highlights, August 9,2018, available at https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/726890/the-prevention-of-corruption-amendment-act-2018-key-highlights (Last visited on May 26th, 2020).
[23]Supra Note. 13.
[24]The Prevention of Corruption (Amendment) Act 2018, § 19
[25]The Prevention of Corruption (Amendment) Act 2018, § 7, § 11, § 18 & §19.
[26]Lexology- Khaitain & Co, Prevention of Corruption Act, 2018– Booster for the Honest and Corrupt, August 1, 2018, available at https://www.lexology.com/library/detail.aspx?g=8d4787ba-7ad9-473d-a996-af043369b73b (Last visited on May 26th, 2020).
[27]The Prevention of Corruption (Amendment) Act 2018, § 7(a) & 8.
“Legislations are the primary characteristic and means of growth in any mature legal system.”
Roscoe Pound
INTRODUCTION
With the advent of modernization, the Indian society has undergone remarkable changes. Family, the primary unit of society has also changed in its form and function. The elderly, who have been an important component and had the protection under the traditional family setup, are the worst affected in this changed scenario. The demographic statistics reveal that India is ageing at a fast pace and people in the age group of 60 years and above will increase by 326% and those in the age group of 80+ by 700% (As depicted in the figure below). National Development requires governmental planning and programming, which in turn require legislative enactments for their validation and implementation. This underlines the pressing need for a robust policy to ensure that the senior citizens are not exposed to vulnerabilities of the old age.
THE EXISTING LEGAL FRAMEWORK
The framers of our constitution were aware of the vulnerabilities that an individual could be exposed to by the old age and therefore the well-being of senior citizens is mandated in the Constitution of India under Article 41. It provides that, “The state shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of old age”. Other laws dealing with the same are Code of Criminal Procedure (Chapter IX, Section 125(1)(2)), that Requires persons who have sufficient means to take care of his or her parents if they are unable to take care of themselves. The Hindu Adoption and Maintenance Act, 1956 also requires Hindu sons and daughters to maintain their elderly parents when parents are unable to maintain themselves. In light of the constitutional mandate, parliament came up with The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007. It was introduced in the Lok Sabha on 20th March 2007 and finally received the assent of the President of India on 29th December 2007. The legislation was passed with the objective to provide for effective provisions regarding the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution. The legislation aims to create an effective mechanism for senior citizens to ensure that the children perform their moral obligation towards their parents. In a sense, it provides for the institutionalization of a suitable mechanism for ‘protection of life and property of older persons.
FAULTLINES IN THE IMPLEMENTATION OF THE ACT
The concerned legislation was enacted with the noble objective to ensure that Right to live with dignity, Right to life and liberty and the Right to shelter guaranteed under Article 21 of Constitution, but the legislative intent of protecting the rights of senior citizens do not seem to have been fructified. Section 32 of the Act states that the State Government make rules for the effective implementation of this Act. Chandigarh Maintenance and welfare of Senior Citizens Rules, 2009 provides for the rule of eviction by the Maintenance Tribunal,[1] which has abated the ambiguity regarding the jurisdiction of maintenance tribunal in passing the order for the eviction of a son, daughter-in-law.
But such directives are missing in other states regarding the rule for eviction and this has led to an uncertain situation regarding the jurisdiction of Maintenance Tribunal.
The Act states, “The State Government shall prescribe a comprehensive action plan for providing protection of life and property of Senior Citizens.”[2] The problem that arises is that when it comes to eviction of children by parents from their self-acquired property following the failure of children and daughter in law to maintain their parents, the decision of High Courts in various states cannot be said to be uniform.
Various High Courts have opined differently on the question of jurisdiction of Maintenance Tribunal in this regard. Kerala High Court in a judgment [3]where a petition was filed against the eviction order passed by the Maintenance Tribunal there the high court while setting aside the eviction order passed by the Maintenance Tribunal said that bypassing such order the Tribunal has exceeded it’s jurisdiction as it is not expressly mentioned under Section 23 of the Act that parents have right to evict their children from their house. Similar was the viewpoint of Kerala High Court in C.K. Vasu vs. The Circle Inspector of Police[4] where an aggrieved senior citizen filed a complaint to the Maintenance Tribunal and obtained an order for eviction against his children was set aside by Single Judge since after examination of the act it is nowhere mentioned that passing an order of eviction is within the jurisdiction of Maintenance Tribunal.
Like Kerala, there are other State High Courts where the order of eviction passed by the Maintenance Tribunal was set aside by according the reason that the act does not mention the provision regarding the eviction of children by Maintenance Tribunal on the complaint made by their parents. In M.P. Tej Babu vs. The State of Telangana and Others[5]. It was said that the only provision under which the Tribunal is conferred with the jurisdiction to intervene in the matter of property of senior citizens is under Section 23 of the Act. Therefore, after a thorough examination of the said provision reliefs of eviction of the person cannot be ordered by the Tribunal as it is out of the ambit of its jurisdiction.
The Act empowers State Government to make rules regarding the power and duties of the authorities for implementing the provisions of this Act[6] and a comprehensive action plan for providing protection of life and property of senior citizens[7] in absence of State rules if the Maintenance Tribunal provides the remedy of eviction then it will lead to arbitrariness[8].
There is a catena of judgments where the High Court of Punjab and Haryana considering the provisions of Chandigarh Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 have compelled children to vacate the property of aggrieved. In Hamina Kang v. District Magistrate[9] where the eviction order passed by Maintenance Tribunal was challenged in the High Court but the Court in the light of Rule 3 of Chandigarh Maintenance and Welfare of Parents and Senior Citizens Act, 2009 upheld the eviction orders passed by the Maintenance Tribunal.
There are cases where the daughter-in-law after the death of her husband claims to live in the house of her in-laws forcefully against the wishes of the parents and threatens to falsely charge them of Domestic Violence, molestation, harassment etc., regarding the right to live in the in-law’s house High Court of Punjab and Haryana said: “It has also contended that right to residence in a shared household can only be appreciated if the house belongs to or taken on rent by the husband or the house belong to the joint family to which husband is a member but the shared household would not mean that wherever the husband and wife lived together in the past, the same would become their shared household.”[10]Similarly in Darshan Singh and others Vs. State of Punjab and others [11]it was observed by the Hon’ble Punjab and Haryana High Court “the son and his family would be permitted to live in the residential house, owed by father only till he wants them to live but only as licensees.”
CONCLUSION
After going through the viewpoints of different High Courts, it can be safely concluded that in absence of eviction as a remedy in the Legislation the objective which it sought to achieve cannot be fulfilled, because then the aggrieved Senior Citizens will then continue to bear the stress which they have to face by the non-consensual presence of their son, daughter, daughter-in-law, etc.
The step taken by Government of India in providing social justice enshrined our Preamble is worth appreciating, however, it must be emphasized that the National Programme is now about 12 years old and must be implemented with due earnestness for it to bear fruits. Otherwise, it will remain only a paper programme. The Apex Court in the case of Dr. Ashwani Kumar Singh v. Union of India[12] has rightly said: “there’s a lot that is required to be achieved and we expect the Union of India and all the State Governments and Union Territories administrations to take an active interest in the implementation of the National Programme”.
Decisions taken by the Punjab and Haryana High Court in Hamina Kang v. District Magistrate was in the light of the rule that specifically mentioned eviction to be granted in case of unauthorized occupation on the property of Senior citizens. Because of which there was no question of ambiguity regarding the Jurisdiction of Maintenance Tribunal for passing the eviction orders. Therefore, it is recommended that the act be amended and should provide for eviction as a remedy for senior citizens if they are being mentally and physically harassed by their children. If the amendment is made in this Act then it will have a deterrent effect and there will be a guarantee of elders living peacefully, also there will be no ambiguity in this regard in different states as the parent act will then have the provision for eviction on the ground of ill-treatment because “subordinate legislation should always be read only within the confines and context of parent act”[13].
[1] Rule 3(1)
[2] Section 22(2)
[3] Janardan vs. Maintenance Tribunal Appellate Authority & District Collector, 2017 Law Suit (Ker) 664.
[4] W.P.(C) No. 20850/2011
[5] (2016) SCC Online Hyd. 79.
[6] 32(2)(e)
[7] 32(2)(f)
[8] B.Ramasamy vs. The District Collector and Others.
[9] 2016 SCC Online P&H 208
[10] Vimaljit Singh v. State of Punjab and Others, AIR 2018 P&H 185.
[11] 2017(3) ALLMR 34
[12] 2019 (1) AWC 1080 SC
[13] Global Energy Limited and Another. V. Central Electricity Regulatory Commission, (2009) 15 SCC 570
The Consumer Protection Act of 1986 (the Act) envisaged protecting the interests of consumers by establishing consumer councils and other such authorities for settling consumer disputes. The perceived guiding principle behind this Act is that business organizations must adopt utmost ethical practices while conducting their business transactions. If and when the businesses gallivant and fail to fulfil their social and ethical obligations, the government will come to the assistance of the consumer.
Another oblique purpose of this Act, as stated by H.K.L Bhagat, the then Minister of Parliamentary Affairs, was to spur strong voluntary consumer movement at the grass root level. However, a law is a part of society, it takes issues from society. Hence, laws are not immune to the fault-lines prevalent in the society.
The Act has failed to substantially stimulate the welfare of consumers belonging to subaltern groups. Here subaltern group refers to consumers from lower socio-economic classes. The Act envisaged bringing in a behavioral change in the attitudes of the buyers and sellers, shifting the focus from caveat emptor to caveat venditor. This behavioral change can be brought on a macro level only when people are aware of the Act, its contents, and its consequences.
However, we have dismal awareness about the Act in India, especially in rural areas. As per a study sponsored by Department of Consumer Affairs the awareness of the Act is directly proportional to the level of education and income level. Subsequently, the Act has had a much less impact on the marginalized and subaltern groups of the society who lack education and are living in rural areas with minimal levels of income. Thus, to a large extent, socio-economic background of the consumer will determine the impact that this Act has on them.
Further, the Act aimed to provide speedy and effective justice to aggrieved consumers by establishing three-tier consumer redressal forums. It was deemed that shifting consumer dispute cases from the judiciary to specialized forums would ensure speedy redressal. However, most of the specialized consumer forums do not have the minimum facilities to function and the members appointed, especially non-judicial members, lack the basic legal expertise to deal with the legality of myriad issues.
According to a report submitted by a committee headed by retired Supreme Court Justice Arijit Pasayat, most of the non-judicial members are political appointees, serving political interests, who are incapable of even writing or dictating order. Fearing delays and further complications, the consumers have been generally cautious of approaching these special forums.
Marketization and privatization have further lead to overtly strengthening the caste and class consciousness deepening the archaic social hierarchies and innate biases. The members of the redressal forums are also not immune to it. Most of the appointed members belong to the affluent class and castes of the society and hence they have certain predispositions toward other members of the society, especially those from the less privileged sections.
The graded and structural inequalities in social, political and economic edifices of society are also reflected in the working of the Act. Superficially, it seems that the Act provides equal opportunities for consumers to put forth their point of view before the forum.
However, under the Act, consumers can argue their case either through the medium of an advocate or they can represent themselves before the consumer forums. The latter arrangement is based on the assumption that the process and technicalities in the consumer forums are far too benign and easy as compared to the one followed in the civil courts and as such even a layman may understand the proceeding, or the lack thereof, and may represent himself saving the fees of advocacy.
However, this procedure, although established with a benign intent, does not help the subaltern consumers. This is due to the following two factors:
1) The poor, being illiterate in most cases, do not have proper guidance and understanding of the legal processes to present their own arguments before the redressal forums, and as such, they don’t get any assistance with this regard from the officials present therein.
2) Most the subaltern people don’t have the pecuniary resources to hire a lawyer to fight a case on their behalf.
Thus, the Act, and consequently consumerism, has failed to protect the interests of the subaltern consumers for whom every hard-earned penny matters.
Goods and Services Tax
Tax is the financial charge imposed by the Government on income, commodity, or activity. As we know, there are two types of tax – Direct tax, and Indirect tax. A direct tax is one where the burden of the tax is directly on the payer e.g., income tax, wealth tax etc. Indirect tax is paid by the person other than the person who utilises the product or service e.g. Excise duty, Custom duty, Service tax, Sales tax, Value added tax and recently GST – Goods and Service Tax in India.
GST is mainly followed on the TCS guideline – tax collection at source.
Goods and Service Tax in India
Earlier, more than 150 countries already had GST except in India. A reform swayed in the Indian economy and in its tax laws since 30th June to 1st July 2017 when the Indian Government decided to introduce GST to the citizens of the country.
Goods and Service tax is an indirect tax levied on the goods and services bought by the consumers. It is a single detailed and multi-oriented tax that will undermine all the other small indirect taxes like the excise duty, custom duty, service tax and etc.
The thought of proposing GST Act in India was not something new. This thought was initially proposed in the year 2000 under the leadership of the then Prime Minister Atal Bihari Vajpayee but it never came to fruition. Nevertheless, it was again introduced in 2016 as a Bill by the Lower House of the Parliament i.e., the Lok Sabha and passed on to the Upper House i.e., Rajya Sabha for its assent. After the bill was passed by both the Houses, President Pranab Mukherjee signed the bill and gave assent to it. This time the new reform was brought under the leadership of current Prime Minister Narendra Modi, the leader of the BJP party who holds maximum seats in the Lok Sabha. The GST council, and the current finance minister, and the leader of the Rajya Sabha Arun Jaitley presides over the GST matters. Finally, after the Bill was passed by the Parliament it has now become a GST Act, 2017.
Coming to the Goods and Service Tax, it has been divided into three kinds –
CGST – Revenue collected by the Central Government.
SGST – Revenue collected by the State Government for intra-state sales.
IGST – Revenue collected by the Central Government for inter-state sales.
The new GST rates in India are 0%, 5%, 12%, 18% and the highest rate being 28%. As a matter of fact, there will be no GST on the sale and purchase of securities. It will continue to be governed by Securities Transaction Tax (STT).
The Government of India finally enacted the new Act in the Sixty-eighth year of the Republic of India. The Central Goods and Services Act, 2017 thus came into force. It is an Act to make a provision for levy and collection of tax on intra-state supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto.
GST Bill
The Constitution amends both the Centre and the State to levy GST. This would subsume various indirect taxes of both Centre and States into one. After this new tax reformation, there would be a Centre level GST and State level GST.
Changes in GST Law
GST law is applicable to the whole country except Jammu and Kashmir. According to GST law, if the buyer fails to pay the service provider, then the input tax credit availed by the buyer would be disallowed. Then he has to pay the ITC with interest. The time period for this is 180 days. Even, if the payment is made after 180 days the ITC will be allowed to pay. This provision includes both to services and goods. The GST law included “Actionable claims” in the definition of “goods”. It explains in the Act that the actionable claims other than the betting, gambling and lottery would not be treated as a supply of goods nor of services. Thus, GST would be applicable on gambling, lottery and betting but not on other “actionable claims.”
Benefits of GST
GST has been introduced to simplify the other small indirect taxes and comply into one. In short, it is the funnelling down of multiple small tax structures into one. It would reduce the burden of heavy lengthy taxation process. This basically divides the taxation into the manufacturing process and the services. GST would be charged at the final destination of consumption and not before that. This would be a great step forward to the country’s development as it will reduce the economic complexities and somewhat prevent corruption.
GST would benefit the individuals and companies as the price of certain products would decrease resulting more consumption of them and hence more production by the companies. Although, petroleum products, alcohol, and electricity do not fall under GST till now. The biggest advantage is the reduction of the tax burden imposed on the administrative system of our country. It would benefit the GDP of the country and positively affect the Indian economy.
Flaws of GST
The introduction of GST in the Indian economy has not been spared from criticism by the citizens. As human beings we know we are resistant to change and any change initially is not well likely taken by anyone. So, the same scenario is with the goods and service tax. GST is a whole new reform in the tax structure of the country. People would take time to understand and accept this system.
Real estate prices would likely go higher by 8%. Services like telecom, restaurants would likely charge higher tax rate. The division of tax between the Centre and States could create conflicts. It would also lead to additional compliance cost for small and medium enterprises for registration and tax filing purposes. The consumers might have to pay extra for the increasing operational costs by a certain amount.
Certain factors:
The GST would be governed by five GST laws namely CGST law, UTGST law, IGST law, SGST law and GST Compensation law. The levy of GST can commence only after the GST law has been enacted.
GST would be charged at the destination point i.e. at the consumption level.
Import of goods would be charged under IGST i.e., inter-state supplies along with the custom duties.
Exports would be zero-rated.
Taxpayers with an annual turnover of Rs 20 lakhs (for special category states it is Rs 10 lakhs as mentioned in 279A of the Constitution) would be exempt from GST.
GST has a system of input tax credit which would allow the sellers to claim the tax already paid, so the final liability on the end consumer gets decreased.
The motive of GST is “One nation, one tax.”
The Ministry of Home Affairs released a bill on 4th May, 2016, named ‘The Geospatial Information Regulation Bill’, which aimed to ‘regulate the acquisition, dissemination, publication and distribution of geospatial information of India which is likely to to affect the security, sovereignity and integrity of India’[1]. As per the act, the term ‘geospatial information’ would mean all geospatial imagery which has been obtained through aerial means, like satellites or airplanes[2].
A bare perusal of the Bill shows that the Bill proposes the creation of a ‘Security Vetting Authority (SVA)’, who would give general permission for any acquisition of geospatial imagery. Further, the Bill also suggests that all those who have already acquired the geospatial information as defined, should, within one year of the commencement of the act, make an application to the Security Vetting Authority (SVA) for permission to retain the same. Any contravention of the same would result in a large amount of fine, ranging from ten lakh rupees to one crore rupees.
Who does this Bill impact?
The short answer is, everybody who uses maps in apps. From regular Whatsapp usage, whereby we send our location to our friends, to bigger apps like Google, Ola, Zomato, Uber, and so on. Any app who uses maps as a major part of their services and functions would be severely impacted if this bill is enacted and made into a law. The ‘geospatial imagery’ they had obtained would be subjected to the SVA for approval, and there is already a worry in the minds of scholars regarding the fact that this approval is subject to the discretion of SVA, which is a bureacratic body, and that the whole process might get caught up in red-tapism[3].
Further, a potential enactment of this bill would also hamper scientific and academic research. The sweeping ambit of the definition of ‘geospatial information’ includes maps, aerial images and so on. These are the primary tools of research for earth scientists, and if this bill is enacted, these tools would be taken away from them[4].
Criticisms of the bill
The release of this bill has drawn flak and criticism from the legal and academic sphere alike. The Centre for Internet and Society had released comments on the same where they had proposed that the bill should be scraped off completely[5]. According to them, there are already laws existing which regulate usage of geospatial information that may undermine the security of India. Laws like the Official Secrest Act, 1923, as well as policies like The National Mapping Policy, 2005, which restricts wrongful depictions of India’s international borders. Say the government wants to substantiate the policy with a law, even in such cases the law enacted should be much more different, and would have a much more limited apply[6].
What could be the possible changes suggested to the Bill?
There are several areas of the Bill which require to be changed. One of the foremost is lessening the ambit of the definition ‘geospatial information’. As per the definition mentioned above, the sweep of this definition would also include personal messages (like Whatsapp), as well any tweet, or any Facebook post where the user ‘checks in’ in places. All such exchanges would require the prior approval of SVA, and it is the opinion of the author that an argument of this being violative of freedom of expression can be successfully made.
Further, section 15 of the Draft Bill imposes penalties for wrongful depictions of the boundaries of India[7]. Again, the sweep of ‘wrongful depictions’ is too broad. Not only this penalises wrongful depictions with reference to external political struggle, but it also penalises the depictions of India in history books, or newspaper reports which refer to such struggle and show the map as proposed by the enemy forces. This potential situation would again be violative of freedom of speech and expression.
While one can argue that the legislative intention behind the Bill is to stop internationally hostile forces from depicting Indian borders wrongful for their own gain, still the Bill is draconian is ambit, and lacks reasonable foresight. It is argued by the author that if the legislative intention is such, the Bill should only be passed with heavier amendments which would narrow the scope of the Bill.
[1] Ministry of Home Affairs, ‘Note to all Stakeholders and Citizens'<http://mha.nic.in/sites/upload_files/mha/files/GeospatialBill_05052016_eve.pdf> last accessed 26 September 2016
[2] The Geospatial Information Regulation Bill (2016) s. 2(1)(e)
[3] K.N. Prudhvi Raju and Sarfaraz Alam, ‘The Geospatial Information Regulation Bill 2016’ (2016) 51 Economic and Political Weekly (Issue 31) 22, 23
[4] id
[5] Pranesh Prakash, ‘CIS’s Comments on the Geospatial Information Regulation Bill, 2016′<http://cis-india.org/internet-governance/blog/comments-draft-geospatial-information-regulation-bill-2016> last accessed 26 September 2016
[6] id
[7] See n 2, s. 15
The need for Sexual Harassment of Women at Workplace Act was talked about for the first time after the case of Bhanwari Devi. After this case Vishaka guidelines were framed in 1997. These guidelines in 2013 came out as the Act. This Act aims at protecting women from harassed at their workplace. It is beneficial as this act provides for speedy trial as within the company’s internal committees are formed to solve such matter. But with all these benefits comes with loopholes mainly being that this act is not gender neutral. But one major point of this act is that it punishes women who file a wrong case. This helps in reducing fake cases being filed and takes back the extra leverage given to women in usual cases. This act ignores Men as they are also being harassed and there is a need to bring all such cases also under surveillance.
Failure of this Act
1 Even after the passing of the act number of cases have rapidly increased. Government data shows that there were over 300 complaints of sexual harassment last year; the figure has steadily climbed over the last few years from 107 cases in 2011, 147 in 2012 and 249 in 2013.[1] This clearly shows that the cases are increasing at a rapid rate. Law if made and is not successful in threatening the wrongdoers or if it does not reduce the number of cases, it is said to have been never there. The increasing complains are a major problem. But the unreported cases are also a major problem a lot many cases go just like that either by accepting such unwelcome responses or by quitting up of the job. Both the remedies taken up by the victim shows incompetence on the side of law.
2 The Internal committees are not set up in most of the organizations and if they are set up they are not functional. They are not having any person with legal knowledge as such hence they are sometime not capable of deciding the matter. The matter should only be decided by competent authorities and not by anyone in general. Hence selecting anyone for the committee is a failure in itself. Only competent jurists can decide upon such a matter which relates to the modesty of the women. Their protection is given in the hands of a person who does not know what all remedies could be given to the victim except this act. And it reduces the confidence of victim in the court decisions. It leads to constant disturbance in the mind of the victim as if she is in the safe hands or not. It is a crime which could be committed again and again. Hence just by a lenient order may be the crime would be committed again hence it needs a proper check by proper people at proper time in a proper manner.
3 Even though awareness has increased but still number of unreported cases are also increasing. Hence still the Government and the organizations have to take reasonable steps to spread awareness about it amongst all the people. As illiterate women are also working hence to protect them also they should be given knowledge about it. Certain NGO’s have been set up by individuals and sometimes even funded by states sometimes to spread awareness. But still people in far off villages do not know about their rights or remedies which are available to them. Illiterate women sometimes even if they are in cities do not know how to react or where to go in such situations, they are adversely affected. Hence if law is made and people do not know about is in itself a failure. As laws are made for the welfare of the society and if that does not happen it means it is of no use. Even big organizations do not have this internal complain committee in their set up. As it is a new concept and they even take it as a extra unnecessary burden.
Suggestions
1 Tribunals should be set up in spite of internal complaint committee as there will be more of legal people involved to solve matter which is eminent to protection of modesty of women. Setting up of Tribunals will increase the faith of victim to file as a case as internal committee may be biased as if the case is against the owner. As the matter is concerned with a major offence which could take a worst shape afterwards, hence proper check should be there as to stop it at such an initial stage and from taking a worst shape afterwards.
2 The Act should be made gender neutralized as to give equality to all .As this grave injustice is even against men. Men are also sexually harassed at workplace hence they also need due care and Equality before law as Section 14 of Indian constitution provides for is also violated by not giving such right. They even have the right of equal protection under law, even though state can make special provisions for women and children under Article15 clause 3. But still if any injustice is taking place against both genders so the law if made, should be gender neutralized.
3 There should be awareness camps organized by government and organizations to educate women about their rights and about everything from filing of case till remedies in order to give them confidence so that they can raise their voice. They should be properly made and should go to distant villages as this would not only stop sexual harassment of women at workplace but also encourage participation of women in work as they will have a sense of freedom and safety while they work. This would indirectly increase women participation at work places.
4 There should be more legal professionals involved in the internal complaint committee as to assure they have knowledge to decide the case in the right manner. If legal professionals are included in the committee it gives the victim an assurance that she is in safe hands, hence to increase people faith towards law and executive it is necessary to have proper executive body while implementing laws made by the legislature.
5 The compensation should not be according to the salary of the accused but should rather be on the principal of being just and fair as according to how much it actually should have been and not according to the convenience of the accused.
6 Punishment to the accused should be enhanced as the punishment under the statute is not sufficient it should be increased and more stringent punishment should be awarded. Punishment discourages a man to commit further wrong. Hence, stricter penalization of fines along with putting the person behind bars should be included. As it would increase the fear of law in the mind of the wrong doer.
7 There should be free talk as to the matter as it will help in solving the problem up to a greater extend as it will form better relations between employer and employee to refer to the problems faced by them in usual course of business. Seminars, discussions and meetings should be frequently held. As it give confidence to the employees to bring any problem in front of the employer.
8 Sexual harassment awareness training should be there in every organization as to educate them via workshops, seminars, lectures and real life examples they should be taught how to react and where to go in case of any harassment done to them.
9 News television only made it worse. The case became a subject of debate, in which some started to look for inconsistencies in her account. Every “panel discussion” added to her agony. The friend says it took a long time for the woman to be able to write again. “And fighting through depression and suicidal urges was only possible with the support of close friends, family and counsellors.” Hence there should be proper check on them also to protect the victim.
[1] India: Overview Of The Sexual Harassment Of Women At Workplace.16 April, 2015. http://www.mondaq.com/india/x/348338/employment+litigation+tribunals/Overview+Of+The+Sexual+Harassment+Of+Women+At+Workplace
Insolvency and Bankruptcy Code, 2016 (IBC, 2016 or referred as ‘Code’ in this article) is made with certain objectives which can be understood from the preamble of the code. It is rightly said that preamble is the key to open the minds of people who made it (it was mentioned in respect to constitution though)[1]. If the Preamble of IBC, 2016 is read in parts to understand the aims and objective of the code then some of them may be considered as mentioned below: –
[To strengthen the reorganization and insolvency resolution of corporate person, partnership firms and individuals and amend the laws relating to it.
Maximization of value of assets by following a time-bound procedure.
To promote entrepreneurship.
Availability of credit.
Also, the interests of all stakeholders are taken into consideration and alterations have been done in priority of payment of dues.
Establishment of Insolvency and Bankruptcy Board of India.][2]
The Code is divided into five parts where part II describes insolvency resolution and liquidation procedure for a corporate person. According to this, the insolvency petition can be filed by three categories of people- Operational Creditor, Financial Creditor, and Corporate Debtor himself, and then the further procedure follows. This whole mechanism is laid so that the companies which are in debt, pay it and if not possible to pay because of financial difficulties suffered, then insolvency procedure is initiated so that creditors do not suffer.
The real situation: – Creditors are given the right to file the insolvency petition with the intent that they do not suffer because of the inability of Corporate Debtor to pay the debt. But there have been several cases where Creditors file insolvency petition merely to recover their dues. This was the same case with the winding up petition. Statutory notice under section 433(e) of Companies Act, 1956 were to be issued followed by winding up petition filed if the same(notice) is not replied or defaulted amount was not paid. Winding up petition u/s 433(e) can be related to insolvency petition as both are filed when default in payment occurs.
It was in the case of Pawan Khaitan V. Rahul Commerce Private Limited that the Hon’ble High Court of Calcutta in Para 5 opined that “..the process of winding up could not be used as a tool for debt collection, it is not a debt collecting court.”[3]
Now, when analyzed with respect to the usage of Insolvency and Bankruptcy Code, 2016 out of the major applications filed, most of them are by creditors, operational and financial both, but for small amounts (in compare to debt recovery amount of banks) and only a few of them are by banks and other financial institution.
This also happens because the minimum amount of default is one lakh rupees.
Obviously, the courts/ NCLT adjudicate the matters on the basis of merit and then may admit, but Judiciary and all quasi-judicial bodies are already overburdened with cases and in that, petitions like this make it more difficult to adjudicate other important matters which may be required to be considered on a priority basis.
Conclusion:- To stop the misuse of the right given there should be certain set criteria to file a petition except for the monetary value of 1 lakh rupees.[4] Also, when the central Government has right to set the minimum value by the issue of notification in the official gazette then the appropriate amount should be set so that people do not use the Code and the machinery therein to recover their debt.
[1] In Re Berubari v. Union of India, AIR 1960 SC 845
[2] Preamble, The Insolvency and Bankruptcy Code, 2016-An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.
[3] [2015]190 CompCase236 (cal)
[4] Section 4, Insolvency and Bankruptcy Code, 2016- (1) This Part shall apply to matters relating to the insolvency and liquidation of corporate debtors where the minimum amount of the default is one lakh rupees:
Provided that the Central Government may, by notification, specify the minimum amount of default of higher value which shall not be more than one crore.
BACKGROUND:
The women or the females have been the foundation for the initiation, establishment and furtherance of any existence in this universe. Initially, in India there was a dastardly attitude towards the female section of the society and that they were treated with merely as a reproduction unit but, now with the advancements in education, the approach has had a gradual change and that now the females are vested with certain liberties in every aspect as for instance; education and work.
Upon being granted these liberties, the women were succumbed to various issues and apprehensions because though they were granted liberties, there were certain biological issues which needed great attendance and that the same were matters of great sensitivity i.e. of the maternity.
INTRODUCTION:
A woman, considered as a revered entity in this universe, is gifted or imbibed with a special gift of reproduction for the furtherance of a family tree. Initially, in the archaic period, the women who stayed back home as she was not allowed to step out of the defined boundaries of the abode and that she was bearing a child in her womb was tendered and taken care of by the other members of the family parsimoniously. But in today’s era where women are excelling in every field and aspect ranging from cooking to running a family to administering a business or being employed in a Multi-National Company, the physical appearance of the females which enables them to bare babies in their womb and which is also a cause of hindrance in their careers or at workplaces as it is the matter of their subsistence.
Hence, upon considering to what is stated hereinabove, the Central Government articulated the most essential statute i.e. THE MATERNITY BENEFITS ACT, 1961, with the primary purpose to protect the race of women bearing such a big responsibility.
THE ESSENCE OF MATERNITY BENEFITS ACT, 1961:
The women stepping out of the defined boundaries of their abode are still vested with the natural gift of baring babies in their womb and that they were still needed protection in furtherance of their responsibility. They still needed certain expressed relaxation in order to carry out their maternal functions, hence in pursuance of the same the statute acted a boon for them thereby protecting their lives and race.
The statute articulated certain sections which very not only were in the interest of the females but also for the betterment of them having a pragmatic approach towards this biological matter.
Generally, when a woman is pregnant, the most essential question that takes over her mind is that what will she do of her job or will she be able to work bearing this responsibility in her womb and if yes, then how? But now with the enactment of this statute, females are entitled to certain relaxations during their pregnancy and that this statute creates mandatory obligations upon the employer to exercise the same in pursuance of the sections articulated in the Maternity Benefits Act, 1961.
As per this Act, the female employee having worked for a period of more than 160 days (inclusive of the probation period) in any establishment upon issue of notice to the employer of the establishment as defined under section 6 of this Act is entitled to a leave of 12 weeks i.e. 6 weeks prior to date of delivery including date of delivery and 6 weeks post the date of delivery as defined under section 4 of the said Act wherein the females are prohibited employment during the period of their pregnancy.
The other big question arising in the mind of a pregnant women is about the exorbitant medical expenses which one needs to bear during and post delivery. Therefore, this question was essentially also considered at the time of framing and enactment of this Act whereby any female employee being pregnant is entitled to disbursement of her wages at a rate of average daily wages immediately preceding and including the day of delivery and six weeks after the date of delivery, as articulated in section 5 of the said Act. The expression “wages” in this section of the said Act is valuated as the average of a women’s wage payable to her for the days she had worked during the period of 3 calendar months from the date from which she absents herself for the purpose of maternity.
CONSTITUTIONAL VALIDITY OF THE MATERNITY BENEFITS ACT, 1961:
The basic foundation of all the laws and statute in India is the Constitution of India having its foundation in year 1947 protecting the fundamental rights of every individual and embarking principles which every individual falling in the purview of citizenship under the said constitution.
In respect the constitution validity of this Act, the Central Government has enacted this Act keeping into mind the postulates articulated in the constitution.
The purpose of this Act is in consonance to the postulate articulated in this Constitution which ensures protection of the women and ensures their existence. Article 15(3) safeguards the rights of the women and their health. Similarly, the Article 39 which is a mandatory obligation upon the State to make policies in order to secure the economic justice wherein more particularly Article 39(e) which ensures health and strength to workers and also 39(f) wherein children are prohibited from material abandonment. This Act is also in consonance with Article 43A(3) and that this Act stands appropriate in all respect.
DOES THE EXPRESSION “WOMAN” ONLY MEAN THE FULL TIME FEMALE EMPLOYEE OR A FEMALE ON MUSTER ROLL OR REGISTERED SECURITY GUARD IN THE ESTABLISHMENT CAN ALSO FALL WITHIN THE AMBIT OF SAID ACT:
Considering the definition of “woman” under the maternity benefits act, 1961 means any woman employed be it directly or indirectly through any agency for wages in any establishment. But the question, that does this Act include the females in muster roll and the same question was answered in the leading case law of
Municipal Corporation of Delhi V/S Female Workers (Muster Roll)
wherein the Union of female workers filed a claim that the Municipal Corporation of Delhi employs ample no of female workers on muster roll basis and that the recruited were made to work together with the employees against the perennial nature. They further stated that the nature of work carried out by the recruited employees was of the same nature as that of the perennial nature and that the muster roll females have been employed with the Municipal Corporation since years and that they have been assisting the Corporation in carrying out the work of digging trenches, construction,etc., but, however, theirright to maternity leave was waived off every time they made a request for one.
The Corporation in their written statement in support of their stand states that a female employed in perennial nature of employment in an establishment is entitled to a maternity leave and as such the said muster roll females were not as they were on a daily wages basis.
However, the Court held that the females (muster roll) do fall in the definition of this Act as it has to be in consonance with the mandated provision of Constitution of India and that they do need protection and are entitled to maternity leave because the Corporation also falls under the purview of industry as rightly upheld in the case of Corporation of the City of Nagpur v. Its Employees and Others.
The other question that does a female security guard lie under this Act and is she entitled to maternity benefits, however this question was fetched with a judicious answer in the case of
Krantikari Suraksha Raksha V/S State of Maharashtra &ORS wherein it was held that women who are registered security guard employees shall be entitled to maternity benefit provided they are women under said Act and in such a case the payment of wages is by the board constituted u/s 6 of Maharashtra Private Security Guard (Regulation of Employment & Welfare) Act, 1981.
NEED FOR THE MATERNITY BENEFITS (AMENDMENT) BILL, 2016?
Though this Act was in consonance with the objectives and motives articulated in the Constitution of India, there was a need to bring about certain amendment to the principal Act because of certain prime reasons: –
The principal Act limited only to females bearing children in their womb and that the said child is their own and not subject matter of any contract to anyone. But then with the unavoidable situation of the certain families where the females are forced into surrogacy also needed protection of the ground of humane condition at workplace and that their health needed protection for their existence.
The period of 12 weeks mandated under the Principal Act was needed amendment because upon observing and considering the biological aspect of this issue, the body of females undergo wear and tear and that the stipulated time of 12 weeks seems inappropriate in order to heal the said wear and tear and that the said maternity leave was extended from 12 weeks to 26 weeks.
The other prime reason for the said extension from 12 weeks to 26 weeks is that the new born is just stepped out into open and that this is the time when he needs the attendance of the parents be it a mother or a father or both. The female undergoing a period of pregnancy needs the utmost care during the seventh months of this period and it is the most crucial period for a woman.
The amendment bill unlike the Principal Act articulates section which widens the scope of the Act i.e. beginning from biological children to adopted children and surrogacy children, and that the mother would be entitled for a 12 weeks’ maternity benefits from the date of adoption or date of surrogated child.
The amendment also considered the rising medical expenses of a pregnant mother and that the amendment articulates that if a female employee, if functioning in an establishment and that her nature of job is such that she can continue from home,than the female can continue her operation upon mutual agreement with the employer of the employer, thereby felicitating the “work from home” concept.
Add provisions to unable the mother to have a watch over the new born child and also to perform or operate in the establishment it is mandated in every establishment to set up crèche in within prescribed distances as may be mandated provided that there are 50 or more than 50 female employees in the establishment and that they are allowed to visit the crèche four times a day which was penned down as the Section 11A in the amendment bill.
VIEWS ON THE BILL;
This bill as amended on the guidelines of the Principal Act which was already into consonance with the basic foundation of any Statute in India. The Principal Act, though in perfect tune with the mandatory object of the Constitution of India, was amended because of certain discrepancies in the perfect sections and that these discrepancies grew gradually with the time and change in generation.
Upon perusing the aforesaid amendment, this bill was upheld by majority of parliamentarians as it was the need of hour and was the most needed bill and the most awaited bill by most of the females in the society because their health’s were prejudiced in pursuance of this maternal function. But this bill was contended by the employers as a maternity leave of 26 weeks prejudiced the operation and functions of their establishments. They stated that with this the females in the establishment would be on leave for a majority period of time and that their operations would go standstill thereby causing loss to them.
CONCLUSION:
The amendment if perceived from a legal aspect stands appropriate and that is apt in all spheres and sub- spheres of legality not prejudicing any mandated provision of Constitution of India or any other Statute prevalent in India. Now considering the same bill on human grounds, it stands as a boon because it in no way prejudiced or harms the existence of female race in the society infact it is an essential step towards protecting them and their rights and also an assistance in performing their maternal functions.
This bill upon being perused with due diligence stands right in all respect and is definitely a boon to all females / women employed into any establishment ranging from a Parliament to an MNC to a labour job thereby widen or extending the purview of the Principal Act for females of the society.
REFERENCES:
Constitutional Law of India – Dr. J.N. Pandey
The Maternity Benefits Act, 1961 – Bare Act
Warnock Committee Report (1984) defines “Surrogacy is the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth”. There are two different types of surrogacy;
Gestational surrogacy, and
Traditional surrogacy.
In gestational surrogacy, an embryo is first created through in vitro fertilisation (IVF). The donors of the sperm and egg are usually the commissioning parents and the pregnancy is achieved by transferring this embryo to the uterus of the surrogate mother.
In traditional surrogacy, pregnancy of the surrogate mother is achieved naturally or artificially and the surrogate is genetically related to the offspring.
Both these types of surrogacy may be either altruistic i.e.unselfishly concerned for or devoted to the welfare of intending parents where the surrogate mother gets no financial assistance other than medical expenditure, insurance bill etc. or commercial where the carrier of the child is paid to rent her womb.
India is the first country in the world that legalised commercial surrogacy in 2002. Since then it has become a ‘surrogacy capital’ of the world with about 3000 surrogacy clinics and more than 2000 surrogate births annually. The estimated business volume is at Rs.900 Crore. In a bid to curb the menace of this ‘surrogacy industry’ the Union Cabinet cleared the Surrogacy (Regulation) Bill 2016. The Bill is having the following salient features:
No commercial surrogacy is permitted.
Indian couples married for at least five years and either one or both are suffering from infertility. The husband must be within the age of 26 to 55 years and the wife must be within 23 to 50 years.
Only altruistic surrogacy is permitted.The surrogate mothers must be close relative and must have a child. No woman can act as surrogate mother more than once.
The couple must not have any biological child except the child is mentally or physically challenged.
The surrogate child must not be abandoned under any condition.
Single people, live-in couples or homosexual partners are not allowed to have a baby through surrogacy.
Foreigners, NRI and PIOs who hold OCI cards are not allowed to opt for surrogacy.
National Surrogacy Board and State Surrogacy Boards will be set up and district authorities will also be involved.
Exploitation of the surrogate mother, sell or abandonment of the child will lead to imprisonment of at least 10 years and fine up to 10 Lakh.
But the cabinet decision is not in consonance with the constitutional provisions. Article 14 of the Constitution guarantees “equality before the law and equal protection of laws to all persons”. Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In many judgements, the Supreme Court of India has interpreted that the ‘life’ counts all those attributes which make every facet of life meaningful, worth living and complete. Imposing conditionality on surrogacy to discriminate on the basis of single parents, NRI couples, live-in couples, LGBTQ parents or age may not pass the test of equality. It is not the State to decide the nature of Right to procreation and parenthood which make the life meaningful. There should be a logical relation between object of the bill and the means of its implementation. A 2013 survey by the Centre for Social Research along with the WCD Ministry recommended explicitly that the law should allow LGBT, single parents and unmarried couples to opt for surrogate children.But the draft ART Bills of 2014 and 2016 ignored this recommendation.
Contrary to the above the Juvenile Justice (Care and protection of Children) Act, 2015 (JJ Act) already permits inter-country adoptions from India with the only bar of single males adopting a girl child.
The Government has justified banning of commercial surrogacy and foreigner participation to protect the misuse of surrogacy. But the ground reality may be quite different. Failure of the Government to administer ban on organ donations and sex determination indicate how effectively this commercial surrogacy ban can be implemented. The guidelines governing domestic altruistic surrogacy could be counterproductive. It may result in an underground unethical trade generating relatives and surrogates impregnated in India but shifted to a safe heaven. The government of India should enact a comprehensive law to ensure proper care of Indian surrogate mothers during surrogacy treatment. There should be a regulatory agency like CARA to judge suitability of the parents, welfare issues of the child and care of the surrogate mothers. Imposition of ban may not be a solution.
However, the Surrogacy (Regulation) bill 2016 has only been approved by the Cabinet. Now it has to be passed in both the houses before enactment as law.
Introduction
Post liberalisation in 1991, Indian economic policies had to undergo drastic changes to adapt to the global practices and national agenda. In 2002, the Competition Act[1] was enacted to replace the Monopolies and Restrictive Trade Practices Act, 1969[2], as it was considered insufficient to control anti-competition practises and nurture competition. The Competition Act, focused mainly on abuse of dominance, anti-competition agreements, competition advocacy and regulation of combinations. The Act had been implanted with efficiency, however, with the change in the market trends a need was felt to further analyse the Act in light of the current situations. The Government therefore constituted the Competition Law Review Committee in 2018[3], to study the current market trends and examine whether the Competition Act is in sync with the market practises. The Committee’s mandate was: to suggest any changes in the current regime taking into account the market trends, best international practises, other governmental policies and regulatory mechanisms which overlap the Competition Act, and any other related competition issues. The Competition (Amendment) Bill, 2020 [4] was then drafted based on the recommendations of the Committee.
The Bill aims to bring major changes to the current system. The key takeaways can be classified in the following categories.
Structural Changes
Taking into account the Supreme Court’s decision in Brahm Dutt v. Union of India[5] and the Delhi High Court’s decision in Mahindra Electric Mobility Ltd. v. CCI[6], the Committee acknowledged that the functions performed by the Competition Commission of India (CCI) is multifarious and therefore to establish a regulatory body in lines with other regulatory bodies in the country, the Bill introduced the establishment of a governing body[7], consisting of part time members and ex officio members. The objective behind the introduction of governing body is twofold, firstly to reduce the burden on the CCI, as the governing body will be responsible to carry out all the quasi-legislative function and policy decision, and secondly with the introduction of part time members and ex officio members, will bring in external perspective and will strengthen the democratic legitimacy and accountability of the CCI.
The Bill aims to merge the office of Director General (DG) constituted under Section 16 of the Competition Act, as an investigation branch of the CCI. Earlier the DG was not answerable to the CCI, but to the Central Government, however this classification was merely de jure. The Committee while recommending such change took into accounted practices adopted by European Union, China, United States and Brazil, and the Supreme Court’s decision in CCI v. Steel Authority of India Ltd.[8]
Changes in the functioning of the CCI
The Bill introduces provisions recognising the settlement or consent orders, in case of antitrust proceedings. The Bill proposes the introduction of certain provision which permit an investigated party to offer a settlement[9] or voluntary undertake certain commitments[10] in relation to an anti-competitive vertical agreement or abuse of dominance proceeding. The Bill under these provisions envision the mechanism to be adopted to permit such settlement or commitment mechanism. The objective of adoption of such orders was to enable the CCI resolve antitrust cases faster, which would in turn help the businesses to avoid long investigation procedure and uncertainty. This procedural change is a sign of relief to the corporate field.
Changes in provisions relating to combinations
The definition of control under the Act had not defined the minimum standards required to establish such control, therefore the CCI had used the yardstick of the ability to exercise ‘decisive influence’ and ‘material influence’. The Bill proposes to statutorily recognise the standards of ‘material influence’[11]. The introduction of such standards serves twin purpose, firstly, it would bring certainty and consistency in the decisions and secondly, it will ensure that a larger number of transactions are scrutinised while an investment friendly economy is maintained.
The Bill introduces many changes with regards to the regulations of combinations. Some of these are, the principal act prescribed certain specific grounds which would constitute combination and the parties involved in such a transaction would be under an obligation to notify CCI before the execution of any such agreement. The Bill introduces the power of the central government in consultation with CCI to identify any other ground which would constitute combination[12], further the Bill also states that the power would also include the power to delist any ground which would otherwise constitute combination[13]. It is a welcome change as it increase the jurisdictional threshold of CCI, such an amendment would help include a number of digital transactions which were currently out of the scope of scrutiny of CCI, as it did not had any residuary power under the act.
The Bill purposes to statutorily recognise the Green Channel Process. The rationale behind introduction of such process is to enable fast-paced regulatory approvals for vast majority of mergers and acquisition that may have no major concerns regarding appreciable adverse effects on competition. The aim is to move towards disclosure based regime with strict consequences for not providing accurate or complete information. The power of green channel will also extend to approve resolutions arrived at in an insolvency resolution process under the Insolvency and Bankruptcy Code. Further to ensure time bound assessment of combination a mandatory 30days timeline is also included in the act[14]. The Bill also reduces the time within which the CCI has to issue its preliminary opinion on whether a combination would cause adverse effect on competition, from thirty working days to twenty calendar days[15]. Such timelines would help ease the burden on the parties involved in the transactions.
Inclusion of Technology and New Age Markets
The Bill purposes to expand the scope of the act to include within its scope the digital markets, in order to achieve the said goal the Bill makes a numbers of changes in the existing system. Some of the changes are, express inclusion of hub and spoke arrangement[16], and buyer’s cartel. The Committee recognised the tactics used by the companies to escape scrutiny under the act and also took into account the orders issued by the CCI in Hyundai Motors case[17] and Uber case[18], and recommended that the element of ‘knowledge’ or ‘intention’ should not be considered under such agreements.
The Bill seeks to widen the scope of section 3, the principal act restricted the scope of section to horizontal or vertical agreement leading to adverse effect on competition. The Bill intents to include other agreements too, taking into account the decision in Ramakant Kini v. Dr. L.H. Hiranandani Hospital[19] and to expand the scope of the provision to include agreement entered in the digital market. The Bills expressly includes the ‘control over data’ or ‘specialised assets’ under the list of conditions which constitute dominance of a company in the market[20]. The rationale behind such inclusion was to expand the scope of the section to online businesses collecting customer data through user feedback loops, which would have the company have a more targeted approach.
Changes in the Enforcement Functions
The principal Act did not grant any punitive powers to the DG or the CCI, therefore the institution was toothless in case of noncompliance of the orders. The Bill intends to introduce wide range of powers to the DG as well as the CCI. The Bill introduces provision[21] under which any person who (a) fails to produce any documents, information or record, (b) did not appear before the DG or fail to answer any question by the DG, (c) or sign the note of cross-examination, shall be punishable with imprisonment of term extending up to six months or fine up to one crore rupees. The Bill introduces the maximum cap of penalty as the 10% of income of the individual in the preceding three years, in case of formation of cartels[22].
The Bill intends to adopt practises prevailing in countries like UK, US, Singapore and Brazil, where the cartel under investigation has disclosed some relevant information of some other existing cartel will be liable to lesser punishment[23]. The power to compound offences is introduced in the Bill[24].
Shortcomings in the proposed amendment
The Committee recommended that the governing body should only have the power to perform quasi-legislative functions and policy decision and not the adjudicatory functions, however the Bill does not clearly demarcates such powers. Further the Bill is silent on the procedure of election of the part time member and ex officio members, which raises serious concerns of independence of such members.
The Committee while recommending the adoption of the integrated agency model did not take into account the impact it would have on the system of check and balance established by separating the investigative and adjudicatory branches of an organisation. Such merger is against the principle enunciated by the Supreme Court in Excel Crop Care Ltd. v. CCI[25], wherein the Court accorded greater independence to the office of the DG. The Court held that although the base for any investigation is the allegation made in a complaint, however if any new facts are revealed the office of DG is empowered to include such facts in its report. Furthermore the Bill does not take into account protective measures suggested by the Committee in order to maintain the due process, such as the DG in order to maintain functional autonomy, should directly report to the Chairperson of CCI, the parties should have adequate right to representation and examine evidence, and there should be strong appellate forum.
The Bill is silent on a number of aspects of the settlement or commitment order, such as whether such order would have a precedential value i.e. whether such an order would have to be taken into account while deciding similar pending cases and whether the right to compensation would survive such order.
The Bill merely introduces the concept of compounding of offences by the NCLAT, but it does not provide for the procedure to be adopted by the NCLAT. Furthermore, the Committee recommended that a Bench of NCLAT should be dedicated to hear appeals under the Act, however the recommendation was not incorporated under the Act. Such an action would have an adverse impact on the effective implementation of the Act. Since COMPAT established under the Act is scrapped, the rate of disposal of appeals have decreased considerably. And if the recommendation is not incorporated in the Act, it will hamper the national initiatives like Make in India.
The power to review which was initially granted to the CCI, was repealed by the 2007 amendment. However later in Google Inc. v. CCI[26] the Court held that such power of review is inherent in nature. While there have been other contrary judgements, the Committee should have recommended the introduction of the power to review, however no such recommendation was made.
Conclusion
The introduction of the amendment Bill is a welcome step, as the country is at a very critical juncture where it is imperative for the Government to properly assess each recommendation before implementing the same. The Government in order to reap maximum benefit of the huge market, it must maintain a balance between robust administration and market friendly regime. The Bill is currently open for suggestion by the interested stakeholders, but a brief analysis of the proposed amendment reveals that the Government is motivated to implement a regime where the interest of all the stakeholders are taken into account.
*4th year student, MNLU Nagpur. The author can be contacted at jhs.shivamtripathi@gmail.com
[2] Monopolies and Restrictive Trade Practices Act, 1969
[3] Government of India, MCA, ‘Government constitutes Competition Law Review Committee to review the Competition Act’ (30 September 2018) <https://pib.gov.in/newsite/PrintRelease.aspx?relid=183835> accessed on 11 March 2020.
[4] Draft Competition (Amendment) Act, 2002 <http://feedapp.mca.gov.in/pdf/Draft-Competition-Amendment-Bill-2020.pdf> accessed on 09 March 2020.
[6] (2019) SCC Online Del 8032
[7] Under Section 8
[8] (2010) 10 SCC 744, para 8.
[9] Under Section 48-A
[10] Under Section 48-B.
[11] Under Explanation of clause (a), Section 5.
[12] Under proviso to Section 5.
[13] Under second proviso to Section 5.
[14] Under Section 6(2).
[15] Under Section 29(1-A).
[16] Under Section 3(3).
[17] Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Ltd., 2017 SCC OnLine CCI 26
[18] Samir Agrawal v. ANI Technologies Pvt. Ltd., 2018 SCC OnLine CCI 86
[19] Ramakant Kini v. Dr. L.H. Hiranandani Hospital, 2014 SCC OnLine CCI 17
[20] Under Section 19(4)
[21] Under Section 41(8).
[22] Under Sections 27 and 48.
[23] Under Section 46(3).
[24] Under Section 59-A
The sole purpose of a social welfare legislation should be to protect the rights of the marginalised. In instances where discourse by the marginalised is not allowed, purely because of a very real threat to their lives and systemic obstructions in place to not just dissuade, but to disallow members from the community from occupying and participating in political spaces, it is incumbent then on the state to actively engage with such communities to create such a discourse.
History has, time and again, betrayed the transgender community. Erased our stories, stories of the state, majoritarian forces killing, raping and stripping us naked. Our identities and bodies mutilated to such an extent, that the word violation would be short changing the narrative. The unfairness with which history has dealt its hand would only be corrected through an active effort of the state, to recreate a discourse, the primary requirement being consultations with the community.
2014 was a watershed moment in the recognition of the community’s identities. Creation of a draft of rights and a clear dismantling of the historical structures built to purely oppress and invisibilise identities, rights and as an extension, persons from entire societies. The NALSA judgement was a vindication of a centuries old movement forcing the state to recognise and uphold gender identities. The Transgender Rights Bill 2014, introduced by a private member Tiruchi Siva, and passed by the Rajya Sabha in 2015 gave a sense of hope that the Supreme Court verdict would be followed by legislative action.
THE UNFAIRNESS WITH WHICH HISTORY HAS DEALT ITS HAND WOULD ONLY BE CORRECTED THROUGH AN ACTIVE EFFORT OF THE STATE, TO RECREATE A DISCOURSE, THE PRIMARY REQUIREMENT BEING CONSULTATIONS WITH THE COMMUNITY.
But what followed was a crystal clear retraction of the claims made, and assurances given. A series of bills beginning with the 2016 bill followed by the one in 2018, were but a death knell on the culmination of hopes of the community. We resisted, through every means available. Social media pages of transpersons saw an outpouring of personal struggles. The trans community took over public spaces by pouring out in thousands. A clearer voice opposing the law about to be foisted on the community couldn’t be imagined.
Nevertheless, the 2018 version of The Transgender Persons Bill, sailed through the Lok Sabha. The symptoms of such action were many, surveys about the community were absent, consultations were lacking, and any debate in the Lok Sabha was completely non-existent. The underlying cause though, could be pinned down to the complete apathy of the state to any of the concerns the community has raised; through multiple press releases, conferences and representation letters, issues delved into through the protests on the streets and voices of throats that had dried up screaming from rooftops.
There was a collective sigh of relief that emanated from the community when the bill lapsed. It was a brief moment of peace. The community knew it would be short lived. Since then, state sanctioned attacks against the community gained a renewed momentum. Police attacked transpersons, detained and arrested them unlawfully, stripped and paraded them and violations against transpersons were overlooked with a regularity that seemed to portray a complete lack of legal protections for the community.
The community didn’t want to believe that the breather would be so short lived. On the 10th of July 2019 when the Cabinet passed the Transgender Persons Bill 2019, it was evident that the state was employing the same strategy it employed with the earlier bills. As an added element, the bill was not made available to the affected communities and the public at large till the morning it was tabled in the Lok sabha. The community tried its best, organised press conferences across the country. But the community’s best was still the state holding the whole community at gunpoint leaving the community as sitting ducks, knowing not what to expect.
A SERIES OF BILLS BEGINNING WITH THE 2016 BILL FOLLOWED BY THE ONE IN 2018, WERE BUT A DEATH KNELL ON THE CULMINATION OF HOPES OF THE COMMUNITY.
The Bill has come to Parliament in this context of apathy, neglect and secrecy. A series of betrayal of assurances and a convolution of a law that would do nothing for the trans community and would rather snatch away the bare minimum that existed.
The The Transgender Persons Bill, 2019 fails the community on various accounts, specifically:
a) Several definitions that the Transgender Persons Bill prescribes are rather redundant with regard to the issues of the community. In particular the definition of “family”. Where the present act borrows its definition blindly from earlier laws in place, without any application of mind with regard to the position or the nuances associated with the transgender community. Such a banal definition of ‘family’ is after multiple clarifications made by members of the community with regard to the need to expand the meaning of ‘family’. With most transpersons not living with their biological family because of the discrimination and violence they face from their biological family and their immediate community. Therefore, a need to include chosen family within the ambit and definition of ‘family’. Since it is through the chosen family that most transpersons get support and are able to find their kith and kin.
b) Though there is a separate definition for ‘intersex persons’, it seems to have been done to purely appease international groups appealing for a separate definition for intersex persons. Since in the very next line it has been conflated along with the definition for ‘transgender person’. This is not just a horrifying misrepresentation but also an invisibilisation of intersex persons and their concerns. This is of extreme importance in the aspect of health as there is a range of distinct issues that intersex persons face. Ranging from forced ‘corrective’ operations on intersex infants to continuing health issues which the medical system is both unequipped to handle and is unaccessible to a large number of intersex persons.
c) The Chapter that prohibits discrimination does cover discrimination against transgender persons on range of fronts. It is not even a toothless tiger, it is just a number of teeth scattered about with no power, reason or authority to take action on their own. The chapter prohibiting discrimination is plagued with three major concerns:
i) Lack of an enforcing authority
ii) Lack of remedial measures, be it in terms of compensation or any other means, for the survivor
iii) Lack of punitive measures to be taken against the violator
THE TRANSGENDER PERSONS BILL HAS COME TO PARLIAMENT IN THIS CONTEXT OF APATHY, NEGLECT AND SECRECY. A SERIES OF BETRAYAL OF ASSURANCES AND A CONVOLUTION OF A LAW THAT WOULD DO NOTHING FOR THE TRANS COMMUNITY AND WOULD RATHER SNATCH AWAY THE BARE MINIMUM THAT EXISTED.
d) The process of recognition of identity of transpersons is affected by the same issues with the earlier Bill. Though the District Screening Committee has been dismantled, recognition of a transgender person’s identity is then to be decided by the District Magistrate, who will then issue the certificate based on a certain set of documents that would be prescribed. The elemental question that arises is then as to what are the documents that would allow transgender persons to be recognised with regard to their identity as a transgender person. These follow on with another set of issues that muddle how gender identity is to be decided:
i) If a person is to then change their preferred gender to male or female, the Transgender Persons Bill harks back to the archaic understanding, enforcing the need for a Sex Reassignment Surgery (SRS) in order to change their gender identity to their preferred gender of either male or female. Moreover the validity of the SRS would be decided by the District Magistrate.
ii) Post the change in gender identity, the person is then allowed to only change their first name, which raises the question as to the sacrosanct position that the last name holds such that under no circumstance then can the person be aided in changing their last name. The sole reason for such an obstruction of changing one’s last name, is the impervious nature of caste in Indian society. Thereby preventing one from changing one’s last name is the primary manner through which caste system and the hierarchy retains its ossified state.
e) ‘Obligations by the appropriate government’ suffers from the same issues as the chapter on prevention of discrimination. The lack of any kind of punitive action against the state, or funds apportioned for such schemes, significantly raises questions on the efficacy of such provisions.
f) The clause of ‘rescue, protection and rehabilitation’ has to be read in context of the experience of transpersons in rescue/shelter homes. The amount of abuse, of various forms—mental, physical, emotional and sexual, faced by transpersons has had the community being extremely apprehensive about the manner in which shelter homes are established and run. Secondly, from earlier experiences shelter homes have displayed an evident insensitivity to concerns of transgender persons. For years, we have stayed and lived independently with support from the community, amidst the discrimination and violence. We don’t need an unnecessary policing of our existence by the state. Do not restrict our lives, we need protection mechanisms from those who bent on violating our identities, bodies and lives.
g) The Transgender Persons Bill stipulates a complaint officer designated to deal with complaints under this law. The process of having a complaint officer is completely unclear, it could be through nomination, election or any other process, but as of now, the process of having the complaint officer is non existent. The procedure finalized will establish the independence and the efficacy of the complaint officer and its absence, the clause is a cause for concern.
h) The restriction of movement with regard to transpersons in separating from their parents and allowing a person to move out only through an order of ‘a competent court’. Dividing the community on class lines with only those being able to access court even having a chance at separating from their family. Moving out of the family has been the need of a large number of transpersons, primarily due to the discrimination and violence they would face from their immediate family and the immediate surrounding community. The freedom to move and have a chosen family has been effectively restricted and dismantled through this clause. Furthermore, the only alternative made available to the community other than the family is a rehabilitation centre, the errors and fears of which have been reiterated multiple times.
i) With regard to health though, there are certain issues that are covered. It is pertinent to note that there isn’t a single organised protocol guiding the medical community on healthcare for the transgender community. Without such a concerted effort to build health systems working for transgender persons, an array of individual clauses and provisions becomes a mere juggling of health rights that play with our lives. Other than the need for a separate protocol concerning the health of the transgender person, there also needs to be a subsequent inclusion in each of the health care policies that would be drafted further on and also applied retrospectively. For a greater implementation throughout the Indian health system, there needs to be an addition to Primary Health Centres, which would be an implementing agency for all the healthcare policies at the grass root level. Rights of a transperson with regard to their fertility is critical, and inclusion in both artificial fertilisation and surrogacy. These areas still follow critically heteronormative understandings of the ability of a person to be a parent. Furthermore with regard to mental health issues faced by the trans community, by virtue of discrimination and ostracization faced by transpersons, other than the involvement of mental health professionals in verifying gender dysphoria there is no further support that is provided; whereas there needs to be continued support for mental health to be provided to a transperson.
j) The National Council for Transgender Persons lacks any kind of independence to carry out functions. The National Council which is composed of at least 30 persons, has a mere representation of 5 persons from the transgender community. Further, the persons would be nominated by the Central Government, compromising significantly the autonomy of the persons on board. Every member who is not an employee of the central government is to be appointed by the Central Government, placing significant questions on the independence of The National Council for Transgender Persons, its separation from the government and therefore its ability to then question the government on various concerns.
k) The offences and penalties enumerated, though have seen changes from previous drafts of The Transgender Persons Bill, but similar sections have been employed through a mere contortion of the law. There are still issues that come across glaring errors:
i) Though the Transgender Persons Bill has removed provisions criminalising begging and sex-work, it has introduced a new section that criminalizes ‘compelling or enticing’ a transgender person to indulge in forced labour. The need for the section should be under scrutiny, for when there is a pre-existing Bonded Labour System (Abolition) Act which criminalises those employing bonded labour, and is applied across persons with no discrimination on gender, the need for this provision is redundant. The only reason that can be foreseen for the presence of this section is to criminalise begging and sex work. The twisting of words doesn’t absolve the law makers of the repercussions it would translate in, during implementation.
ii) The section criminalizing violence against transgender persons, has been reproduced without any changes from previous drafts. In fact any kind of violence, as much as that which would endanger a transperson’s life is punished by a term of a maximum of 2 years. Sexual abuse rampant against transpersons is included within the same section. Such acts which ought to be criminalized over and above the existing sections in the IPC, are now a watered down version of what is present in existing criminal law, which punishes a person with a minimum of 7 years in cases of rape. This section thus is a travesty to the rights of bodily integrity of transpersons.
FOR YEARS, WE HAVE STAYED AND LIVED INDEPENDENTLY WITH SUPPORT FROM THE COMMUNITY, AMIDST THE DISCRIMINATION AND VIOLENCE. WE DON’T NEED AN UNNECESSARY POLICING OF OUR EXISTENCE BY THE STATE. DO NOT RESTRICT OUR LIVES, WE NEED PROTECTION MECHANISMS FROM THOSE WHO BENT ON VIOLATING OUR IDENTITIES, BODIES AND LIVES.
The stark reality that transpersons are facing post-NALSA, is a continued dialogue with central and state governments to implement the judgement. The attempts to have an open dialogue have been met with brutal resistance and a continued onslaught of violations wrecked on us by law enforcement agencies and law drafters.
In a conflict between the court judgement and legislations, such as this, it is the legislation that will take precedence. Till its constitutionality is challenged in courts and such a challenge is accepted and the absurd law is struck down. It is not a novel concern that the law has been opposed to us, and has continued to ignore our existence. What is surprising in this case is the law being used as an effective mechanism to validate our existence, but place us at a plane lower than that which the rest of the society rests on, thus legitimizing the violence that we are put through.
We will continue to oppose this. Our throats cracked ages ago, hands bled and bodies tired. None of it has put a halt to our demand for what is rightfully ours. Through the fight we spent moments mourning our losses, these weren’t losses in courts or in legislation; these were losses of our kith and kin. These were losses when our partners in the fight were stripped naked and paraded, their bodies examined, their bodies raped, bodies stared at till they were bloodied in shame, minds torn apart and pushed to them taking their own lives.
The absurdity of the whole fight has been that as much as we would have wanted to, we didn’t have time to stop and mourn these losses. Each incursion against an individual was then followed by structural violence to massacre the movement. Now it isn’t just an apology that we want, for an apology will not wash away the incursions carried out against us. We have spoken in voices clear, through throats that bled with our demands. It seems now as this was to no avail.
All that is for certain is that we will continue to exist and we will resist any subjugation.
Introduction
The genesis of the Minimum Wages Act, 1948, took place with the set-up of a Labour investigation committee. Standing Labour Committee and Indian Labour Conference spearheaded this movement in 1943. It aimed at observing the matters related to working conditions and minimum wages. Later, in 1946, they put forward a suggestion for specific legislation exclusive to the issue of minimum wages. This lead to the enactment of the Minimum Wages Act, 1948. The Minimum Wages Act, 1948, was one of India's first legislation related to the working rights of labourers. The Central and State level government were responsible for fixing wages for different scheduled employments. During the British era, the wages were fixed by an agreement between the employer and employee and was mostly arbitrary. The workmen have been victims of exploitation.
The Tripartite Committee, established in 1948 on Fair Wages, laid down three different types of wages: a fair wage, a living wage, and a minimum wage. According to this, wage levels should take into account the industrial capacity of the nation. The committee propounded an equilibrium between employee subsistence and general productivity. These observations later formed the essence of the Minimum Wage Act.
Constitutional Recognition
The Constitution of India embodies the concept of minimum wages in Part IV, i.e., the Directive Principles of the State Policy. It is enshrined firstly, under Article 39, according to which states should ensure that all citizens have the right to an adequate livelihood and that there is equal pay for equal work for both men and women. Secondly, under Article 43, the State's obligation to protect through both legal and economic means the citizen's right to work for a dignified living wage, i.e., a wage capable of providing a decent living standard is enshrined.
The Objective of the Act
The Honourable Supreme Court in Chandra Bhavan Boarding and Lodging Bangalore v. the State of Mysore and Another,[1] laid down the purpose of the Act. Its main objective is to prevent sweated labour as well as the exploitation of unorganized labour. It proceeds on the basis that the State must see that at least minimum wages are paid to the employees irrespective of the capacity of the industry or unit to pay the same.
Besides, the Honourable Supreme Court in Unichoyi v. State of Kerala[2] explained it as follows: “What the Minimum Wages Act purports to achieve is to prevent exploitation of labour and for that purpose empowers the appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries. In an underdeveloped country which faces the problem of unemployment on an enormous scale, it is not unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the employment of such sweated labour in the interest of general public. So in prescribing the minimum rates, the capacity of the employer need not be considered. What is being prescribed is minimum wage rates, which a welfare State assumes every employer must pay before he employs labour”.
Features of the Act
The Act applies to the employments listed in the schedule. Therefore, the governments at the State and Central level has to fix the minimum wage. They should also add any employment to the schedule if they satisfy the criteria of 1000 workers, at least.
The Act lays down for fixation of the following:
A minimum time rate of wages
A minimum piece rate
A guaranteed time rate and
An overtime rate
For various occupations, localities or classes of work and adults, adolescents, children, and apprentices.
3. The minimum rate of wages consists of :
A basic rate of wages and the cost of living allowance or
A basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of essential commodities supplied at concessional rates.
4. The Act lays down that payment of wages be in cash. However, it empowers the appropriate Government to authorize the payment of minimum wages either wholly or partly in kind in particular cases.
5. The appropriate Government is empowered to fix the number of hours of work per day, to provide for a weekly holiday and the payment of overtime wages.
6. The establishments are required to maintain registers and office records as prescribed.
7. The Inspectors are appointed to hear claims arising out of payments.
8. The appropriate Government has to revise the minimum wages every five years.
9. The appropriate Government has to provide special allowance once in six months.
10. On non-payment of wages, section 20 will be applicable. The authority has to pay ten times the difference amount for defaulting.
Impact of Code on Wages
The Ministry of Labour and Employment has recently introduced the Code on Wages, 2019 Bill in the Lok Sabha. It amends and consolidates the various laws relating to wages and bonus by proposing to amalgamate, simplify, and rationalise the following central labour Acts:
Payment of Wages Act, 1936,
Minimum Wages Act, 1948,
Payment of Bonus Act, 1965 and
Equal Remuneration Act, 1976
Subsequently, the amalgamation of these acts will bring accountability to facilitate effective enforcement. The significant impact of the Code is that earlier; the Minimum Wages Act applied only to the scheduled employments. With the advent of the Labour Code on Wages, the benefits extend to all establishments irrespective of the nature of the activity. Thus, the scope has widened.
Additionally, under the existing Minimum Wages Act, around 60% of the workforce is left out. The new Code will give the right to Minimum Wages to the entire 50 crore workforce. It also provides a consolidated, more comprehensive definition of the term “wages.” Wages include salary, allowance, or any other component expressed in monetary terms. It does not include bonus payable to employees or any travelling allowance, among others.
Further, Labour Code sets a floor wage. Consequently, the central Government will fix a floor wage, taking into account the living standards of workers. The Government, before fixing the floor wage, may obtain the advice of the Central Advisory Board and may consult with state governments. The minimum wages decided must be higher than the floor wage. If at all the minimum wages are higher than the floor wage, it would remain as such without any reduction.
Conclusion
In conclusion, the Minimum Wages Act was brought into force to address the issues of the unorganized sector in the country. The aim of a fair wage for the workforce is fruitful only by reducing discriminatory practices. Additionally, the implementation of the Labour Code is an essential step towards streamlining and consolidating labour laws in India. It will act as a catalyst for boosting employment and opportunities. All the working men in the country will be offered protection under the Code.
[1] 1970 AIR 2042, 1970 SCR (2) 600
[2] A.I.R. 1962 SC 12