CHILD RIGHTS IN INDIA: AN ANALYSIS

by Harsh Rai

INTRODUCTION

India is considered to be a youth-oriented nation in the entire world, with 472 million young people and28.6% of the entire population under the age of 14. Having such an enormous amount of youth base creates enormous responsibility towards their welfare. India is a huge country and one of the largest developing countries. Despite significant progress in economic growth over the last five years, the nation has made an average of 7.3 %. It continues to face other BRICS countries with similar challenges strong growth rates combined with chronic poverty and disparity. These inequalities are evident in the poor human development of the most marginalised nations, including castes, the tribes, and the rural population, women, HIV transgendered persons, and migrants. Despite tremendous advances in India to address poverty, education and the level of HIV, the outcomes were mostly unequal. The children of India continue to suffer some of the world’s most difficult situations, including high rates of malnutrition, child labour, and forced prostitution as well as childhood diseases like diarrhoeal disease [i].

STATUS OF CHILD RIGHTS

About73% of children in India live in rural regions and have frequently restricted access to basic requirements including nutrition, access to health care, education and protection. A large number of rural children often lead to negative repression concerning the fact that children have access to fundamental rights. India’s “Commissions for Protection of Child Rights (Act of 2005)”[ii] (amended in 2006) has influenced the promotion of the rights of children in India. The elimination of child labour, child protection, and young people in particular. The Commission’s mandate to make sure that the Child Rights Perspective enshrines in India’s constitution and the “1989 UN Convention on the Rights of the Child” is compliant with all the Laws, Policies, Programs and Management Mechanisms. The promotion of children’s rights in India is a priority of the government which is established in the constitution and protected by law. In India, children continue to be faced with obstacles, in particular those linked to access to education, forced labour, and child marriage, when these rights are attained[iii].

SOCIAL PROTECTION TO CHILDREN

For children and families, social protection is vital to avoid and reduce poverty, tackle disparities and achieve children’s rights. Moreover, it is vital that social protection systems, by maximizing good benefits for children and limiting possible negative effects, adapt to children’s vulnerabilities[iv]. Social protection attentive to children can alleviate chronic poverty, social isolation, and external shocks that irrevocably harm children. For children living in rural areas, who typically confront increased vulnerabilities, aggravated by their living situations, this is particularly essential[v]. As just 27% of Indian children reside in urban areas, and 73% live in rural regions, it is vital to broadening access for children to social safety programs. In India, Child sensitive social protection (CSSP) projects, UNICEF, and the Ministry of Social Protection are therefore supporting by saving the children. The objective is to promote and implement the rights of children, ensuring that measures of social protection lead to significant investment in children[vi].

RIGHTS OF CHILDREN TO PROMOTE WELFARE

India 1991 adopted the “United Nations Convention on the Rights of Children in 1992”[vii] with its aim to create an ethical labour market for foreign companies. The Convention is rooted in the willingness of Jebb to alleviate children’s suffering by creating a healthy, joyful, and safe atmosphere that fostered them physically, psychologically, and emotionally. The Convention resonates strongly with these characteristics.  Following are the few rights mentioned in the conventions

Right to Identity (Article 7 & 8) The realization of their right to identity and registration is a crucial component in achieving children’s rights. India has one of the highest kid absence rates in the world. Only 41 %of births are recorded. The registration differences are significant in city-rural regions, with 59% of city children under five registered, compared with only 35% in rural areas[viii]. This leads to significant problems for these people since they cannot make use of child-sensitive social safety services and programs which, in the eyes of society, are invisible.

Right to Health (Article 23 & 24)A crucial indication for the achievement of children’s rights is the approach to access to health. In India, about 1 million children die under 5, estimated as 39 fatalities per 1,000 live births. It is very probable that access to health services such as maternity and newborn health care is disadvantaged for women and children. Regular pregnancy surveillance is performed by just 1 in 3 Indian women. Only 37% of newborns in rural regions receive skilled health workers. There are about 204 million people living in India undernourished and the most impacted are the Indian children. Children also confront other problems, including a high prevalence of HIV infections 3700 new children’s infections, lack of safe drinking water, and proper sanitary facilities. Lastly, the wider range of health care in rural areas is unevenly distributed among women and children[ix].

Right to Education (Article 28)“Article 21-A of Indian Constitution”[x] also talks about, Access to education in India continues to be a difficult and essential obstacle to child rights. In India, there are still 287 million adults, the biggest population worldwide, and 37 % of the world’s total, with the highest number of illiterate individuals. Während India’s literacy rate from 1991 to 2006 went 15 percent, the overall number of illiterates remained high after the population increase. Despite India’s attempt to spend 10.5% of total government education expenditures, its decentralized approach enables rich countries to spend far more on training than impoverished countries. For example, a rich country like Kerala spent $685 a year on education, whereas another poor state like Bihar paid $100 per year. This uneven distribution between children and rural people is marginalising higher education in particular.

Right to Life“Article 21, of Indian Constitution”[xi] asserts that“everyone has the right to life, liberty and the security of persons”, and that “no person shall be deprived of his life or personal liberty…”[xii].In India, life, survival and development of children remain issues of concern notwithstanding the fundamental right that has been established in the constitution. Every day, not only due to poverty, hundreds of children are losing their lives but because of their mom’s impunity. This is a cultural practice that continues to pose the primary danger to Indian children’s right to life. In reality, every day, hundreds of tiny Indian girls die before they are born or lose their lives because their families are not willing or willing to accept them. Several reasons contribute to women’s infanticides, including the system of dowry that “imposes an unbearable economic burden” on children.

Many Indian households use selective miscarriage of the women’s baby to deal with this problem (feticide). In fact, families kill infants by drowning, poisoning, suffocation, or purposeful carelessness leading to the death of the child, much more distressing when child’s birth is inevitable.

Right to Protection and Freedom of expression (Article 19 & 34)A child in India has the right in the domestic and other countries to be safeguarded from neglect, exploitation, and abuse. Children are entitled to be safeguarded against abuse, exploitation, violence, neglect, commercial sexual exploitation, smuggling, child labour, and customary harmful practices. However, more than 69% of children aged 5 to 18 years are victimised by maltreatment, according to government research carried out in 2007. Many have to suffer daily humiliation and violence[xiii].

The cultural norms that have no high regard and respect for the thoughts and views of children are an important component in the neglect of children. There is no particular reference to this right in Indian legislation as such and education concentrates on respecting children for adults. It is necessary to take another approach towards children and their needs to completely realise children’s right to protection. In the educational and educational sector, we must likewise invest in and prosecute those who disregard it, in the fundamental right of children to protection[xiv].

CONCLUSION & SUGGESTIONS

We can conclude on the norm that, post ratification of the Convention in 1990s. The Indian government subsequently made many acts to safeguard the legal interests of children in the country, 32 Situation for children and child rights in India A Desk Review. The country’s court is currently focused on fighting the scenario in which perpetrators of the victims with children are brought to justice. While attempts are obvious, the issue remains how effective the judiciary’s teeth are to curb increasing criminality against minors.

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[i]DeveshSaxena, The Problems of Marginalized Groups in India, ACADEMIKE (Sept. 8, 2014), https://www.lawctopus.com/academike/problems-marginalized-groups-india/.

[ii] The Commissions for Protection of Child rights Act, 2005, NO. 4, Acts of Parliament, 2006 (India).

[iii] HUMANIUM, https://www.humanium.org/en/india/ (last visited July 22, 2021).

[iv]Id at III.

[v] Aditi Singh, An Insight into Child Rights in India, LAWLEX.ORG (Jun. 25, 2020), https://lawlex.org/lex-pedia/an-insight-into-child-rights-in-india/23960.

[vi]Combatting COVID-19’s effect on children, OECD (Aug. 11, 2020), https://www.oecd.org/coronavirus/policy-responses/combatting-covid-19-s-effect-on-children-2e1f3b2f/.

[vii]UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html %5Baccessed 22 July 2021].

[viii] HUMANIUM, supra note iii.

[ix]Id.

[x] INDIA CONST. art 21-a.

[xi]INDIA CONST.art. 21.

[xii]Id.

[xiii] HUMANIUM, supra note iii.

[xiv]Karen Broadley, What is child abuse and Neglect? CHILD FAMILY COMMUNITY AUSTRALIA (Sept. 2018),  https://aifs.gov.au/cfca/publications/what-child-abuse-and-neglect.

[xv] Picture: Children Incorporated

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Mental Health: Improving and Creating Awareness and Legal Frameworks

By Adv. Rashmi Raman

As they say, there are pros and cons in every aspect of life. This pandemic also has its own pros and cons. On one hand where nature is recovering from human abuse and people rediscovering themselves in form of hobbies, creative outlets and finding them, utilising the time saved from commuting, lesser socialising and staying indoors. On the other hand due to this pandemic many lives are lost, people are struggling for jobs, students and working professionals have to spend endless hours in front of computer screens with limited to almost nilin-person interaction. Due to this decreased in-person interaction, people in every age group are experiencing increased levels of stress, anxiety and unhappiness. In India, mental health and wellness does not have the level of recognition that it deserves. However mental health is equally important as physical health. As the saying goes “A healthy mind lives in a healthy body and vice versa,” the two being inseparable. However, there is a lot of stigma surrounding mental health, which keeps people away from seeking help and continues to live with their undiagnosed mental illness and anguish. Many companies are taking initiative to bring awareness about Mental Healthto overcome such stigma among their employees.

There is a lot of confusion when it comes to terms like anxiety, depression, mental illness or unsoundness of mind. Even in Indian Legal System these terms are not defined clearly. Section 84 of IPC defines the Act of a person of unsound mind “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” Even this section deals only with the “act of a person of unsound mind” and discusses mental insanity as defence. There is very little clarity on the related subject.

In a recent Supreme Court judgement, it was observed that ‘depression’ does not qualify as ‘unsound mind’ for the purpose of entitling a defence under Section 84, IPC.

A judicial bench, constituted of Justices Rohinton Nariman, Navin Sinha and Krishna Murari was hearing an appeal against a 2018 order of dismissal passed by the Armed Forces Tribunal, Regional Bench, and Lucknow. In the appeal application, the appellant pressed that he was suffering from depression and was under treatment for same when he assaulted his senior officer with stones, resulting in serious injury to the senior officers. “The question is whether depression can be regarded as unsoundness of mind” was raised by the counsel of appellant. To which Justice Nariman observed that “Section 84 of the IPC is based on the McNaughton’s Rule…smashing of head should seem like smashing a coconut! That is the level of insanity needed.” So the appeal was dismissed by the Hon’ble Supreme Court of India. ^[1]

A Similar observation was made during a bail plea of a city cop’s son accused of murdering his mother by the Sessions Court in Mumbai in 2017. The Court observed that symptoms of depression would be natural in a person accused of a “brutal act” such as murdering “the nearest one like mother” and it cannot be considered a sign of unsound mind. ^[2]

Ambiguity in the law gives people opportunities for its misuse for a legal defence. Indian law recognises only two concepts related to Mental Health unsound mind and mental illness, which are related but distinct. These concepts have been treated as synonymous many a times but the law distinguishes between the two clearly. Mental illness is considered a medical condition while unsoundness of mind is a legal finding. Expressions as anxiety or depression are nowhere defined in law. Although clinical depression is a major concern in society, the sections elaborating they are very outdated and unclear in the Indian Legal System and they need immediate revision. In India, the Mental Health Care Act 2017 was passed in April 2017 and came into force in May 2018. Attempted Suicide was decriminalized under this act, which was before punishable under Section 309 of the Indian Penal Code. The law describes as “An Act to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.” This Act is a revised version of the previously existing Mental Health Act, 1987 passed on 22 May 1987. ^[3]        

As most of the Indian laws were either framed during the colonial period or them have their origins rooted in that period a British influence is clearly evident in them. It is now time that we update these laws, especially those related to Mental Health. Laws about Mental Health are presently at crossroads as most of them are under revision, to bring them in accordance with UNCRPD-2006. ^[4]Human right activists are demanding an introduction of absolute terms with regard to legal capacity of Mental Health, while psychiatrists are pressing for retaining provisions of involuntary hospitalization in special circumstances. The ultimate aim of any legal provision should be the welfare of the Mental Health and the society at large. Seeing the current pandemic scenario we must encourage and take initiatives to create awareness about Mental-wellbeing in society. And law makers should include more provisions and absolute terms in regard to mental health in Laws and Acts.

References:

1. https://www.livelaw.in/top-stories/how-dare-he-says-what-is-article-32-for-cji-bobde-arnab-goswami-vs-maharashtra-assembly-165599?infinitescroll=1
2. https://timesofindia.indiatimes.com/city/mumbai/judge-denies-bail-depression-natural-if-brutal-act-involved/articleshow/61747326.cms
3. https://en.wikipedia.org/wiki/Mental_Healthcare_Act,_2017
4. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705679/
5. Picture Reference: Quora.

Judgement on Default Bail: SC

by Akshdeep Gupta

The Supreme Court said if an accused were to assert their right to bail after the investigation period has expired, then the court should release them and such swift action would limit the prosecution to defeat the legislative mandate to release the accused on bail. A bench of three judges Uday Umesh Lalit, Mohan M. Shantanagoudar and Vineet Saran ruled on an appeal from a man accused in the NDPS case and filed for bail after the stipulated deadline expired i.e., 180 days for the exam. Interestingly, the Respondent / Complainant “Intelligence Officer, Tax Intelligence Directorate” filed another case on the same day his default bail application was entered, but the trial court found it inconsistent and granted bail. Following this, the prosecutor appealed to the High Court which dominated the trial court’s verdict and quashed his application for bail.

The Supreme Court has set out the two legal questions to be answered in this appeal, the first:

• Whether the indefeasible right accruing to the appellant under Section 167(2), CrPC gets  extinguished by subsequent filing of an additional complaint by the investigating agency;

• Whether   the Court should take into consideration the time of filing of the application  for bail, based on default  of the investigating agency or the time of disposal of the application for bail while answering (a)

The Supreme Court confirmed the principle enunciated in the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, a bench of three judges of the Apex Court noted, repeat, ’13 … It is further clear that the unenforceable law cannot survive or be enforceable against the challenger who is deposed, if it is not used, as in the case of Sanjay Dutt by the Bench of the Constitution. The crucial question is therefore what is the true meaning of the expression “if it has not yet been used? Does this mean that if an accused applies for bail and is ready to be released on bail, or does it mean that a bail order must be accepted?

The Supreme Court stated:

“…Article 21 of the Constitution of India states that ‘no one shall be deprived of his life nor his personal liberty except in accordance with the procedure laid down by law.’ court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that such a procedure may not be arbitrary, unfair or unreasonable. Guarantee of the ‘default’ contained in the related provision, is intrinsically linked to Article 21 and is nothing more than a statutory declaration of the constitutional guarantee that no one may be detained except in accordance with the rule of law. accused, however, does not apply for bail when the right is due, and thereafter an indictment, a further complaint or report requesting extension of time is preferred over the magistrate, the right to bail would be off It may release the magistrate to consider the case or to allow additional time for the completion of the investigation, as the case may be, although the accused may still be released on bail under other provisions of the CrPC. Notwithstanding the bail order issued by the court, under explanation I of section 167 (2), the effective release of the accused is subject to instructions of the competent court to grant bail. If the accused does not provide bail and / or does not comply with the conditions of the bail order, the continued detention is valid.

Read the Judgment here: https://indiankanoon.org/doc/1747003/

Gujrat Govt.’s new Labour Laws Update: SC

by Adv. Rashmi Raman

Gujarat govt makes labour law flexible for industries with less than 300 workmen to ‘hire and fire’ without permission;

As the world faced a pandemic, everything came to halt for a few months. Not only lives of people were at risk, but livelihood also became difficult for majority of people.

India had been witnessing pre-pandemic slowdown but still took a decision of lockdown for its people. The strict lockdown for first 21 days itself brought the decrease in economy of Indian growth in fourth year 2020 by 3.1% by Ministry of Statistics. According to World Bank this is the lowest figure in growth India has seen in three decades.

But does it call to be a public emergency??

Is Covid-19 really a public emergency??

So, the answer is NO according to Supreme Court’s latest judgement on the petition filed by Gujrat Mazdoor Sabha and Centre of Indian Trade Unions(CITU) against Gujrat Government’s notification on increasing the working hours of factory workers and exempting factories in state from the obligation to pay overtime wages.

According to section 5 of The Factories Act 1948, which states as below:

“5. Power to exempt during public emergency.—In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act 1[except section 67] for such period and subject to such conditions as it may think fit: Provided that no such notification shall be made for a period exceeding three months at a time. 2[Explanation.—For the purposes of this section “public emergency” means a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.]”

The Gujrat Govt. observing the Section5 of The Factories Act,1948 argued that COVID-19 amounted to public emergency and was on the “brink of internal disturbance.” According to the notification issued by Gujrat Govt. the number of daily working hours were increased from 9 hours to 12 hours daily amounting to 72 hours of work from 48 hours work limit along with 6 days mandatory working in a week. Additionally, no overtime allowance was supposed to be given which is typically double the amount of original wage. It was notified that the overtime hours will be paid at the rate of ordinary wages.

The bench headed by Justice D Y Chandrachud along with Justices Indu Malhotra and K M Joseph rejected the above argument stating that “the economic slowdown created by the COVID-19 pandemic does not qualify as an internal disturbance threatening the security of the state”.

The Court observed under the judgement authored by Justice D Y Chandrachud  “Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are supposed to be used sparingly under the law. Recourse can be taken to them only when conditions requisite for a valid exercise of statutory power exists under section 5. This is absent in present case.”

Several States including Rajasthan, Uttar Pradesh, Himachal Pradesh, Gujrat, Karnataka, Punjab, Haryana  had extended the number of working hours for factory workers. But after the Supreme Court quashed the orders of Gujrat Government, other States withdrew their official notification orders as well.

Economically weaker section of our society, who form the backbone of our economy are usually illtreated and mishandled by their employers. Same was expected to happen with these State Govt. orders for extension of working hours for them. Though the order was supposed to be for three months , many factory owners were trying to compensate the loss they faced during lockdown through this order, which would have further worsen the living conditions of these factory workers or labours. The factory workers who already faced hardships during the lockdown period should be provided suitable working conditions along with job stability according due to Article 21, Article 23 and Article 43 of the Constitution for better living as citizens of our Country by the State Govts.

References:

1. “India’s economic activity almost at pre-lockdown levels but Covid looms: Nomura”. The Economic Times. 15 September 2020. Retrieved 15 September 2020.

Freedom of the Press or Responsible Journalism

by Krishna Agarwal

The News Media was formed as a counterweight to the three branches of the government. It’s main, it’s only purpose was to create a chain, a link between the governing and the governed. The Press is called the fourth estate and though it is not an official branch of the government, one may argue that it is the most important branch in a democracy. It is the solemn duty of the press to provide the up to date news to the public, to provide them with information which directly and indirectly affects them, to raise questions on the actions of those who are in a position of public trust, to hold those in power accountable, and to stand by the principle that nothing is more important in a democracy  than a well-informed electorate. For this purpose, the constitution provides the vast protection of Article 19 (1)(a) i.e. Freedom of speech and expression to the press. The Press is provided this protection in order to conduct investigative journalism, to find out the truth from any crevice that it may have been hidden, and to raise important and at times uncomfortable questions so as to keep our elected officials humble. In the past, there have been principled journalists in India as well as the International realm who have stood their grounds in the face of overwhelming government pressure and have shaped the public debate on key issues. The example of Carl Bernstein and Bob Woodward comes to mind when these two Washington Post journalists, with their courage and their desire to find out the truth exposed the actions of a corrupt president and forced him to resign, a shining example of how media can hold those in power, accountable.

Yet, with great power comes great responsibility and with the amazing exposure and the visibility power the press wields, it needs to be careful and respectful about what they pursue a story, a news and how they go about reporting it. Freedom of speech isn’t an absolute right and one needs to be mindful of how they use this right, and none more so than the press. Over the past few years we have seen a consistent decline in journalism standards in India, fuelled by the need to make their channels popular, to earn TRP (Television Rating Point) ratings, to earn money by courting an unlimited field of advertisers, and all this has led to the unamended train-wreck of failures that we are witnessing now. The news channels, in order to keep themselves relevant, have dived in a pool of sensationalism and gaslighting and have all but abandoned the core principles of the free press. The recent controversy of Sudarshan news with their “UPSC Jihad” story has been the last straw for the Supreme Court, which observed an unprecedented notion of regulating the news media. The bench of Justice DY Chandrachud, Justice Joseph and Justice Malhotra chided the channel for its dishonest attempt at vilifying a single community and shedding a broader light on the failing standards of Journalism.

Freedom of the Press is important and vital to a democracy. It is the guardian at the gate when the barbarians attack the city. But when that guardian is busy inciting unnecessary controversies, ignoring important issues to increase their popularity ratings, gaslighting the electorate and misinforming the masses, then the people will not trust that guardian and the barbarians would easily win. The power that the press wields is a double edged sword and can and is used for good as well as evil. When people stop focusing on issues and are a drawn to sensationalist news, then the media has failed in its core, its only job. We need balanced regulations of the press, which put a bar on sensationalism while also not restricting the freedom of the press because even after all their lapses, the ability of journalist to ask tough questions cannot and should not be curbed.

Importance of Legal Ethics: in Lights of Prashant Bhushan Contempt Case

by Akshdeep Gupta

Public interest activist and noted advocate Prashant Bhushan, on 14 August, 2020 was held guilty of contempt of court for two tweets against present Chief Justice Sharad Arvind Bobde and past four CJIs which the Supreme Court found amounting to malicious attack on apex court and also to aid in destabilization of the foundation of judiciary. On 31 August, 2020 he was sentenced to a fine of Re 1, and in a case of default of payment by Bhushan, he will be imprisoned for a period of three months and will face a ban on practice for three years.

Even on the advice of Attorney General, and three chances given by Court itself, Bhushan did not express regret and indeed stood by his tweets, as made clear by himself and his lawyers. He further remarked that any unconditional apology at this stage would amount to “contempt of his conscience” as they were based on his “bonafide belief.” He urged that the tweets should only be seen as “constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples’ rights.” Moreover he stated that, “if the proceeding is continued, it would stifle free speech and would constitute an unreasonable restriction on Article 19 that is freedom of speech and expression.” Attorney Genral KK Venugopal came forward in favour of Bhushan and requested SC not to punish him, looking at his pro-bono work in the area of PIL (public interest litigation), SC should let him off with a warning.

The tweets were referring to photo dated June 29 of CJI Bobde sitting on a Hardley Davidson bike, Prashant Bhushan had tweeted, “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice.” The second tweet dated June 27 said, “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal emergency they will particularly mark the role of the Supreme Court in this destruction and more particularly the role of the last 4 CJIs.” After these tweets went viral, office of CJI had issued a clarification that CJI wanted to buy this Bike by Harley Davidson after retirement and had asked a dealer in Nagpur, where he currently was, to show him one. He personally had no idea about; to whom the bike belonged as Bhushan had pointed out in his tweet that bike belonged to a BJP leader.

Bhushan has been called on by various judges in the past for his social media posts and comments, making such contemptuous remarks when it is widely known that, “you can criticize a judgment but not a judge”. Considering that, there is however another contempt proceeding already going on against Bhushan before the same bench for his 2009 Teelka interview, where he had remarked that half of the past 16 CJIs are corrupt. SC is examining whether an allegation of corruption against judiciary without proof would amount to contempt.

In the words of Immanuel Kant: “In law, a man is guilty when he violates the rights of others. In ethics, he is guilty if he only thinks of doing so.”

In the context of the current case, the word “contempt” is not defined in the Act but the phrase “contempt of court” is, and that enables us to appreciate that the right to free speech and expression and the freedom in that behalf is neither taken away, curtailed or interfered with by the Act.

The law aims to maintain the majesty and the dignity of the courts to ensure a sense of confidence of the population in general and for the proper administration of justice in the country. The law does not suppress the truth, Section 13 (b) of Contempt of Courts Act (CCA) provides for public interest justification and a good faith request to invoke the truth as a defence. In my respectful opinion, the request to do away with the law is not at all justified. Such a law can coexist with the Indian Constitution, especially if the substantial power to punish for contempt has been obtained from the Constitution itself.

In sensitive and delicate Supreme Court cases, one should not take extreme positions. A debate on the same subject can never be forbidden. However, greater sensitivity must be demonstrated. Decency and self-control demand that criticism of the verdict should not lead to a personal attack on any judge in any manner. So at the end i would summarise and request that we do not therefore despoil and tarnish the statue and the temple of justice itself while targeting one error or mistake of those in charge of managing its affairs.

The New Consumer Protection Act: An Overview

by Akshdeep Gupta

In a notification by the central government, on July 20, 2020 a Consumer Protection Act, 2019 was appointed, many new provisions were introduced by the way of this Act. This act has replaced its predecessor, the Act of 1986. This act provides a new dimension to overall consumer protection in India. The Act seeks to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers’ disputes. The Bill received the acquiescence of the President as on 9th August, 2019. The most important update is that this act prescribes new set of rules for sale of goods through e-commerce portals.[1] Some highlights are:

Advertisements that are misleading

The Act contains provisions to deal with misleading advertisements. ‘Misleading advertisements’ are defined under Clause 2(28). Misleading advertisements can attract penalty upto rupees ten lakhs from the CCPA under Clause 21. It is also an offence punishable with imprisonment for a term which may extend to five years and with fine extend to fifty lakh rupees as per Clause 89.

Celebrity endorsers’ liability

The act consists of provisions for liability of endorsers. The term “Endorsement” is defined under Clause 2(18). The endorser can be levied with penalty up to rupees ten lakhs by the CCPA for false and misleading advertisements, under Clause 21. However, the endorser will not be liable if he has exercised due diligence to verify the veracity of the claims made in the advertisement regarding the product or service being endorsed by him.

Consumer mediation

The Act also mandates the Consumer Forum and Commissions to explore mediation possibilities before adjudicating the complaint. Consumer Protection (Mediation) Rules, 2020 have also been notified. The Rules provides a list of matters not to be referred to mediation.

Liability of the Product

The Act incorporates a special chapter-Chapter VI- to deal with “product liability’ contained in Clause 2(34). A product liability action may be brought by a complainant against a product manufacturer or a product service provider or a product seller, as the case may be, for any harm caused to him on account of a defective product.

Enhanced Pecuniary Jurisdiction

1. District Forum: – ₹ 01 Crore from ₹ 20 Lakhs.
2. State Commission: – ₹ 10 Crore from ₹ 01 Crore.
3. National Commission: – ₹ 10 Crore from ₹ 01 Crore.

Requisites of maintenance of quality, quantity in terms of money value and safety will be the highlight for any corporate entity that caters consumers of any form. Constitution of Consumer Affair Committee in every corporate is now mandatory; this committee will cater to all and every consumer complaint in any corporate consumer catering entity. These entities are created to settle any dispute through internal mediation, saving themselves the money and penance of defending themselves in any consumer court.[2]

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[1] Ministry Of Consumer Affairs, Food & Public Distribution, https://consumeraffairs.nic.in/acts-and-rules/consumer-protection.

[2] The Consumer Protection Act, 2019, http://egazette.nic.in/WriteReadData/2019/210422.pdf.

Insolvency Threshold Increased by Government under IBC

by Akshdeep Gupta

Keywords

• IBC- Insolvency and bankruptcy code, 2016
• MSMEs- Medium, small and micro enterprises
• NCLT- National Company Law Tribunal
• MCA- Ministry of Corporate Affairs
• COC- Committee of Creditors

What is threshold increase under IBC?

The government of India in the view of then on-going lockdown, on 24-03-2020 announced a raise in threshold to 1 crore from the current 1 lakh for invoking the insolvency against any MSMEs (medium, small and micro enterprises). This announcement was made in order to prevent widespread of Covid lockdown and decrease monetary pressure off of MSMEs. The government since the start of pandemic has shown a dynamic effort in order to ease the strain from any type of business, be it through, relieve under tax reforms or under companies act. One of such approach was shown through this announcement. Section 4 of the Insolvency and Bankruptcy Code, 2016 (IBC) deals with the threshold amount for insolvency initiation, which was 1 lakh with central government having power to increase the limit upto anything not more than 1 crore. It is the first time when the government has exercised this power and has increased the limit to its maximum.

The MCA official Gazette read as follows:

“In exercise of the powers conferred by the proviso to Section 4 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby specifies one crore rupees as the minimum amount of default for the purposes of the said section.” [i]

Other related orders and ordinances

The MCA (Ministry of Corporate Affairs), in another order dated 24-06-2020 has initiated for constitution of sub-committee of Insolvency Law Committee to propose a detailed scheme for implementing pre-pack and prearranged insolvency resolution process. The objective of this order is to:

1. “To study and recommend the regulatory framework for pre-pack insolvency resolution process which shall include pre-requisite for initiation of PPRIP in terms of default and threshold, appointment of Insolvency Professional, role and responsibility of committee of creditors, moratorium, expected cost of process, timelines for completion of process.
2. The committee may also invite or co-opt practitioners, experts or individuals who have knowledge or experience in the subject matter. The committee may also consult other stakeholders as part of its deliberations.”[ii]

For reference, in a pre-packaged insolvency resolution process, a corporate debtor, or a financial creditor to whom a specified percentage of the total outstanding debts of the debtor are owed, may initiate the process by appointing an independent insolvency professional. However, for cases where it may not be feasible for the COC to approve a plan at the pre-commencement stage, the insolvency professional would have the same duties during a pre-arranged insolvency resolution process as under a pre-packaged insolvency resolution process.

This step will not only benefit the MSMEs but will also bring down the number of active court cases initiated on this issue. It was also stated by the Finance minister that if the lockdown extends beyond 30-04-2020, they might consider suspending Sec. 7, 9 & 10 of the IBC, which talk about the process and needs for initiation of corporate insolvency by the financial creditor(s). In light of this statement an ordinance was initiated dated 05-06-2020[iii], which aimed to do the same. It has proposed to be suspended for the time of six months which can be extended to one year. It may even trigger banks to make new reforms and restructure loan provisions.

Benefits

1. These steps would help the MSMEs that are badly affected by the pandemic conditions. They will be also be relived on the front with lack of work opportunities during lockdown.
2. This instigation would also ease in the initiation of such insolvency proceedings and in turn reflect on not burdening NCLT even further.
3. Temporary suspension of section 7, 9 & 10 would give a major relaxation to debtors while protecting and not completely eliminating the interest of financial creditors.

Disadvantages & Suggestions

1. In the line of benefiting the MSMEs, the government has overlooked the interest of such financial creditors who are small companies themselves. Generally the loan is taken of small amounts and from small business. Increasing such threshold amount may cause them loss and lead to more conflicts. The objective of IBC is to protect the interest of all the stakeholders whereas in the current scenario the interest of small creditors is being overlooked.
2. Suspension of Section 10 of IBC lacks premise, as there are companies which were already in default category even before Covid Pandemic and lockdown, there is no rational explanation to stop companies from going themselves insolvent.
3. The overriding of the jurisdiction and power with RBI will cause a long term distress. The notification for stressed asset should have also have been taken under consideration.[iv] This is a non-prudential approach towards separation of power and will cause democratic disrupt in the long term.

Therefore, in the midst of this public health crisis, it is good that government took quick and finance oriented major decisions, but lack of clarifications and procedural establishments will not help the public at large in long term. The short term solutions so given may end up increasing the burden over tribunals like NCLT which are already under staffed and still operating. Need for better implementation scheme is vital.

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[i] http://mca21.gov.in/Ministry/pdf/Notification_28032020.pdf, Gazette of India, dated 24-03-2020.

[ii] http://mca21.gov.in/Ministry/pdf/ACT_24062020.pdf, order dated 24-06-2020.

[iii] http://mca21.gov.in/Ministry/pdf/IBCAmedBill_05062020.pdf, Amendment Ordinance, dated 05-06-2020.

[iv] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11580&Mode=0, RBI notification, dated 07-06-2019.