Pegasus Spyware- A threat to privacy and cyber security

Reading time : 6 minutes

Table of Contents

  1. Introduction
  2. What is Pegasus spyware?
  3. Recent controversy of Pegasus in India
  4. Indian legal provisions for Surveillance
  5. Some eminent case laws
  6. A Major concern for privacy
  7. Conclusion

Introduction

The Pre-Budget session was marked by the protest of the Member of opposition parties and the opposition parties outside the Indian Parliament. A New York times article published on 28th of January brought shocking revelations about the Indian Government’s use of the Pegasus spyware. This made all the opposition parties align together and protest against the government. This article defines and describes all about the Pegasus spyware controversy from recent to past, How it works and from what it is comprised of all the past- instances of it. The most used term Spy-Tech Zero-Click technology which is used in many cyber frauds and it is a most discussed thing nowadays. It’s technique of hacking the phone by just giving a Whatsapp missed call made it one of the most dangerous cyber weopon. Legal provisons such as The Telegraph act,1885 and IT Act, 2000 are some of the laws that deals with the cybercrimes. In this research article, the author will discuss about the Pegasus spyware, legal provisions related with cybercrimes and eminent case laws related with it and How Pegasus is a major concern for the democracy as well as the individual. 

What is Pegasus spyware?

Pegasus is a spyware programme created by NSO Group, an Israeli firm that specializes in so-called “cyber weapons.” It originally made headlines in 2016, when an Arab activist became suspicious after receiving a threatening message. Pegasus was thought to be targeting iPhone users. Apple published an updated version of iOS, a few days after it was discovered, apparently patching the security flaw that Pegasus was exploiting to hack phones.

Pegasus, however, was discovered to be similarily capable of infecting Android Phones a year later by security researchers. More information and security fixes trickled in. After that, in 2019, Facebook sued NSO Group for investing Pegasus. Pegasus was being pursued by Facebook security experts across their networks, and they discovered that the malware was causing problems. The security researchers at facebook were chasing Pegasus across their systems, and they found that the software was used to infect several journalists and activists in India. This Pegasus spyware is not a new concern for privacy and cyber security from 2019 to 2021 the spyware has been called “the most sophisticated” phone hacking tool ever and because it has been used so frequently that we are still hearing stoies about its victim. It is worth noting that NSO Group has confirmed the existence of Pegasus. However, the Israeli company has also said that it sells the tools only to governments and that it is not responsible for its misuse.

How does Pegasus spyware work?

Pegasus takes advantage of Android and iOS flaws that have yet to be disclosed. This means that even if a phone has the most recent security patch installed, it could be infected. A previous version of the malware, which was released in 2016, targeted devices using a tactic known as “spear-fishing,” which involved sending text messages or emails to the target that contained a dangerous link. It was predicated on the target clicking the link—a requirement that was removed in later versions. Pegasus could penetrate a device with a missed WhatsApp call in 2019 and even wipe the record of the missed call, making it hard for the user to realize they were being tracked. Pegasus used a weakness in WhatsApp’s code to infect over 1,400 Android phones and iPhones, including those of government officials, journalists, and human rights activists, according to WhatsApp in May of that year. It quickly fixed the problem. Pegasus also takes use of flaws in iMessage, providing it backdoor access. 

What can Pegasus do?

Pegasus can intercept and steal almost any information on a phone after it is installed, including SMS-es, emails, contacts, call history, calendars, emails, and browsing histories. It can record calls and other conversations using your phone’s microphone, can record your video with the help of camera, and follow you using your GPS.

What does Pegasus comprises of?

Pegasus connects to the attacker’s Command and Control (C&C) servers after installation to receive and execute instructions and transmit back the target’s personal information. Passwords, contact lists, text messages, and live phone calls are all examples of this type of information (even those via end-to-end-encrypted messaging apps). The attacker can control the phone’s camera and microphone, and use the GPS function to track a target. Pegasus only transmits scheduled updates to a C&C server to avoid consuming a lot of bandwidth and alerting a target. The spyware can elude forensic investigation and anti-virus programme detection. When and if necessary, the attacker can also uninstall and deactivate the spyware.

Past Instances of Pegasus Spyware

Pegasus was first discovered on the Smartphone of human rights activist cum promoter Ahmed Mansoor in 2016 by researchers from the Canadian cyber security organisation The Citizen Lab. In September 2018, Pegasus is being used in 45 nations, according to a research published by Citizen Lab. India was featured in the list, as was the case with the most recent revelations. In October 2019, WhatsApp revealed that Pegasus operators were spying on journalists and human rights activists in India. In July 2021,Various nations utilised the software to spy on government officials, opposition politicians, journalists, activists, and others, according to the Pegasus Project, an international investigative journalism endeavour. Between 2017 and 2019, the Indian government allegedly utilised it to eavesdrop on about 300 people, according to the report. According to a report released in 2020, government officials used Pegasus to infiltrate the phones of Al Jazeera and Al Araby workers.

Spy-Tech and Zero-Click

NSO began developing Pegasus as a surveillance option for intelligence agencies and law enforcement organisations. The story they created was that it would be used by government agencies to combat terrorism, drug trafficking, and other crimes. But its first known state client, Mexico, went above and beyond the script, arming itself with cyber-espionage capabilities to combat drug trafficking. Between 2016 and 2017, Mexican agents targeted more than 15,000 phone numbers, according to Forbidden Stories. Those who were close to then-candidate Andres Manuel Lopez Obrador, now President of Mexico, as well as journalists, dissidents, their coworkers, and family members, were among them.

This propelled NSO Group to the forefront of the spy-tech sector, displacing heavyweights like European firms Hacking Team and Fin Fisher.

Pegasus has been using attack vectors like malicious URLs in e-mails and SMS till then. When the link was clicked, the malware was installed, allowing the hacker complete control of the device without the target’s awareness. It then advanced to zero-click infections. End-user intervention is not required for such viruses, which are utilised in WhatsApp and iMessage hacks. A missed call on WhatsApp’s voice call feature inserted a malicious code onto the smartphone. With iMessage, a brief message preview sufficed.

Recent Controversy of Pegasus in India

A New York times article published on 28th of January brought shocking revelations about the Indian Government’s use of the Pegasus spyware. The article exposed the sale of Pegasus to the Indian Government in 2017 as a part of a $2 Billion arms deal in order to carry out targeted surveillance on citizens, claiming that the high-level visits by Prime-Minister Narendra Modi and Former Israel Prime minister Benjamin Netanyahu and even an U.N. vote on a Palestinian organisation was part of a larger backroom deal. The revelations that come from that article of NYT provided fresh ammunition to the opposition parties to corner the government on the issue. NYT’s reporters named several countries including India, UAE, Hungary, Poland and Mexico on the list of those who had purchased the spying software, and said that they had not just strengthened ties with the Netanyahu government, but had shifted on support to Palestine and muted opposition to Israel at the United Nations. In June 2019, India voted in support of Israel at the U.N’s Economic and Social Council to deny observer status to a Palestinian human rights organization. According to the report of the wire over 300 Indian phone numbers were found on the list of project Pegasus which includes ministers, members of oppositions, journalists, judicial members etc. Name of few potential targets from India were; Rahul Gandhi along with his 5 close associates, Prashant Kishore, Abhishek Banerjee nephew of Mamta Banerjee, Prahlad singh Patel (Current minister of state for jal Shakti), Praveen Togadia, Former CJI Ranjan Gogoi and many others except them phone number of 40 journalists were also mentioned in the list. The opposition parties attacked the government, accusing it of ‘misleading’ parliament and the Supreme court. The Congress party said the alleged use of spyware on opposition leaders, Supreme Court judges, Journalists and activists was an “act of treason”. The investigation over whether the Modi Government bought the Pegasus spyware, and used it to hack the phones of a number of citizens not wanted in any criminal cases and carryout illegal surveillance on them is  with the Supreme Court, which appointed a special Committee headed by Justice (Retd) RT Raveendran on October 27, and scheduled another hearing “after eight weeks”, which  has not been listed at present. Due to the article published in NYT, Mallikarjun Kharge, leader of opposition in Rajya Sabha, said, “Parliament was deceived by the Modi government. It is clear that the supreme court was also duped by the Modi government. It is also clear that the people of India were lied to by the Modi government and its ministers.” The clash of against ideas paved the way for forming an anti-government and strengthen the opposition more as it was from farmer laws or the lakhimpuri accident against the minister’s son and forming a more stable anti-government alliance. In a tweet from its official account Trinamool Congress called the Pegasus Report proof of “State sponsored Surveilance” that “blantantly abused the rights of Indians.” The Pegasus controversy catalysed the chaos and agitation against the government and made a stronger argument for the opposition to protest and question the government in its role. This agitation against the government would harm them in their upcoming elections in five states including Uttar Pradesh which is the most significant state in Upcoming lok sabha elections in 2024.

Indian legal provisions for Surveillance

The law of observation in India is beginning when it concerns progressed reconnaissance innovations like Pegasus. In any case, the current legitimate system gives a few shields to the elemental right to protection, permitting proportionate criticism as it were in national, not in private, intrigued. This piece contends that the national security vindication is infructuous within the Pegasus outrage. The government ought to follow to worldwide majority rule standards administering observation innovation.

The laws authorizing interception and monitoring of communications are:

  1. Section 5 (2) of the Indian Telegraph Act, 1885
  2. Section 69 of the IT Act, 2000
  3. IT Rules
  4. Section 5(2) of the Indian Telegraph act, 1885: This act deals with the interception of phone calls. Section 5(2) of this act provides the provision that mentions certain situations under which the central & state government can conduct the surveillance i.e., in case of ‘Public Emergency’or in the interest of ‘Public Safety’. But there are certain grounds available for such surveillance which can be also considered as the reasonable restriction;
  5. When there is threat to the sovereignty and integrity of the India
  6. For the Security of the state
  7. For the friendly relationship with foreign states
  8. If there is a threat on law and orders or in the interest of public order
  9. For immediate incitement of the commission of an offence.

On these grounds and conditions the Indian government is allowed to caught portable phones. In spite of the fact that the act has moreover given certain shields arrangements with regard to securing the basic rights to free discourse for each writer.

  • Section 69 of the IT Act, 2000: This act bargains with the observation of all sorts of electronic communication. Sec 69 of the act gives the arrangements within the favour of Indian government with regard to any electronic observation within the nation. It states almost the interferences, checking of computerized data for the reason of examination of an offense. These arrangements don’t say any grounds related to open security or crisis. Section 69 of the IT Act, 2000 enables competent specialists, with reasons for capture attempts recorded, to put an capture attempts gadget, given, “it is fundamental or practical so to do within the interface of the sway and astuteness of India, the security of the State, neighbourly relations with outside states or open arrange or for anticipating prompting to the commission of an offence”. In any case, Section 69 does not approve any office to introduce spyware to hack a versatile gadget for this. In reality, Section 66, perused with Section 43 of the IT Act, 2000, criminalises the hacking of a gadget.
  • IT Rules: The government re-examined the IT Rules in December 2018 on the affection of moving forward straightforwardness and responsibility and handling wrongdoing and fear based oppression. Through a Statutory Arrange, the government assigned 10 central offices as “security and insights agencies” and approved them to captured, screen and decode “any data produced, transmitted, gotten or put away in any computer”. The State draw rules to choose how a particular arrangement within the essential statute will be worked. These rules ended up the appointed enactment made by the State. The government utilized this inborn control to change the IT Rules, 2009; downsized the shields for individual’s protection; made all-encompassing definitions approving the utilize of hacking apparatuses like Pegasus and gave cover reconnaissance powers to organizations that are not indeed capable for national security, e.g., the Delhi Police and the Directorate of Income Insights. These offices presently collect information without administrative or legal oversight beneath the powers conferred in Segment 69 (1) of the IT Act, 2000, perused with Run the show 4 of the IT Rules, 2009.

The government changed the reason and objective of the law within the statute book and the setting in which it is actualized and presently utilizing these changed rules as a lawful reinforcement for reconnaissance of citizens through hacking devices like Pegasus.

 Some Eminent Case laws

The Indian Courts Interpreted the above mentioned laws several times. We would study some case laws related to the legal provisions mentioned earlier. These are some cases as follows:

  1. People’s Union for Civil liberty vs Union of India: In this case the arrangements of Telegraph Act, 1885 were challenged, and the Supreme Court had expressed the significance of the proper to individual’s personal security. It was held in this case that government observation can undermine the security of an person . This case advance announced the proper to protection as a principal right. Further, within the year 2007 the Run the show 491 had been included within the Telegraph Rules which states that any order related to the interferences of any portable phone ought to come from the Domestic Secretary conjointly specify the foundation of a audit committee to audit an arrange issued by the domestic secretary.
  2. K.S Puttaswamy vs Union of India: On August 23rd 2017, the Supreme Court unanimously recognised privacy as a fundamental right guaranteed by the Constitution:

In 2012, Justice K S Puttaswamy, a retired judge of the High Court, filed a writ petition in the Supreme Court challenging the constitutional validity of the Aadhaar scheme introduced by the UPA Government. On August 11th 2015, a Bench comprising of three judges to decide the matter of fundamental right to privacy. This matter was first placed before a Five Judge Bench headed by then CJI Khehar. Subsequently, the matter was referred to a nine Judge Bench on July 19th 2017 and concluded on August 2nd 2017. In a historic decision delivered on August 24th 2017, the bench unanimously recognised a fundamental right to privacy of every individual guaranteed by the Constitution, within the Article 21 in particular and part 3 on the whole. Since the 2017 judgement, the fundamental right to privacy has been cited as precedent in various landmark judgements.

A  Major Concern for Privacy

After knowing all about the Pegasus spyware, How it is comprised, What is the legal basis of it and the controversies from past to the most latest one now we will know how it affects individuals privacy and the grounds on which the restrictions of government should be laid. Before knowing about How does Pegasus threats to the Privacy of the person knowing the term privacy becomes more eminent.

So, According to Constitutional law, Privacy means the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation or regulation. In simple terms there are certain things that the Individual needs to keep it confidential and that nobody can force them to knew about that. The Indian Law  gives certain provisions related to the fundamental right to privacy from the eminent case of K.S Puttaswamy vs. Union of India where it was stated in this case the breach of individual’s privacy can only be done on the following grounds; First the state must be sanctioned by law, there should be test of necessity & proportionality, there must be some legitimate state aim for such actions and there should be a procedural gurantees against the abuse of such power. It was this case which mentioned where clearly the right to privacy is integral to the right to life conferred under article 21.

Pegasus spyware is a big threat to a certain individual as it can record data, spy the person’s confidential and the personal matters without the acknowledging the person with whom the data is going to be spyed upon. It is direct attack towards the democracy also as the opposition leader are also being spyed upon, the fourth pillar of democracy Media also gets affected from this as the journalists, Human rights activists and many more are also affected by it. The Government can also not directly conduct surveillance as there are reasonable restrictions to it also.  It also Violates Article 19 of the Indian Constitution which Gives freedom of speech and expression. If a person’s privacy is breached it is a direct attack towards the Individual’s Human rights and the rights conferred to him under various Indian laws. 

There are lot of vague and ambiguous perspective on How to Curb the Menance from Pegasus. These are some smalls tips which can be useful to prevent the device from the spyware such as:

  1. Reboot Daily
  2. Disable iMessage
  3. Disable Facetime
  4. Don’t ever click on links received in messages.
  5. Keep the mobile device up to date; install the latest iOS patches as soon as they are out.
  6. Browse the Internet with an Alternate browser such as Firefox Focus instead of Safari or Chrome.
  7. Always use a VPN that masks your traffic.

Conclusion

Pegasus is a spyware programme created by NSO Group, an Israeli firm that specializes in so-called “cyber weapons.” It came in the limelight when the one of the most popular American based daily newspaper New York Times published an article where it revealed that Indian Government purchased the Pegasus spyware to spy upon the Leaders of Opposition, Journalists, writers, Human rights activists etc. It created a lot of ruckus and chaos all over the country against the government during the Budget session. After discussing about all the important legal provisions of The Telegraph Act, 1885 and The IT Act,2000 and some important case related to fundamental right to privacy such as K.S Puttaswamy vs Union of India,2012 which stated that individual’s privacy can’t be breached at any cost Though there are certain reasonable restrictions which are necessary for the state to do so. One of the most important thing is the Right to Privacy which is violated by this spyware and how this harms an individuals rights and what certain measures that need to be taken up to prevent it and till how much it can affect any individual’s privacy as well as democracy also.

REFERENCES

Author: Aditya Pandey, NMIMS, Hyderabad

Editor: Kanishka VaishSenior Editor, LexLife India

Reservation in India

Reading time: 8 minutes

Contents-

  1. What is the meaning of reservation
  2. Purpose of reservation
  3. The extent of reservation in India
  4. SC/ST Reservation
  5. OBC Reservation
  6. EWS Reservation
  7. History of Reservation in India
  8. Does India need reservation now (discussion)
  9. Is reservation the only solution?
  10.  Will reservation compromise the merit system?

What is meant by reservation or affirmative action?

Reservation is the action of reserving something.

Reservation in India is all about reserving access to seats in government jobs, educational institutions, and even legislatures to certain sections of the population.

Reservation has been backed by the Indian Constitution by means of various amendments, as affirmative action, it can be seen as positive discrimination. The above-stated reservation in India is backed by the government of India.

Purpose of reservation in India

The following are the 2 main purposes of Reservation of India

  1. Advancement of backward classes like Scheduled Castes (SC) and the Scheduled Tribes (ST) OR any other social backward or educationally backward classes of citizens of India (Eg: OBC) OR economically weaker sections (EWS) – Article 15 (4), Article 15 (5), and Article 15 (6) of the Indian Constitution
  • Adequate representation of any backward class of citizens OR economically weaker sections (EWS) in the services under the State. – Article 16 (4) and Article 16 (6)

The extent of Reservation in India

In India, reservation is provided in:

1) Government Educational Institutions (like IITs, IIMs etc.) – as per Article 15 – (4), (5), and (6) of the Indian Constitution

2) Government Posts (like Indian Administration Services, Indian Police Services etc.) – as per Article 16 – (4) and (6) of the Indian Constitution

3) Legislatures (Parliaments and Stae Legislatures) – as per Article 334 of the Indian Constitution

Before 2019, the reservation was provided mainly on the basis of social and educational backwardness (caste). However, after the 103rd constitutional amendment in 2019, economic backwardness is also considered.

Apart from the reservation quota, additional relaxations like upper-age relaxations, additional attempts, and lower cut-off marks are also provided for various reservation categories

Reservation quota in India for Government Jobs

A vacancy reserved for SCs or STs or OBCs cannot be filled by a candidate other than an SC or ST or OBC candidate, as the case may be.

As seen from the above table, about 60% of seats are reserved in India – for various sections like ST, SC, OBC, and EWS – with respect to Government jobs and Higher Education Institutions. 3% of seats are also reserved for differently-abled persons across all categories.

This also means that only 40% of seats are available under merit. The seats that can be gained in the basis of merit does not only belong to general category candidates but the other categories who already have seats reserved for them like the SC, ST, OBC and EWS can also compete in that category for the respective seat.

SC/ST Reservation

The objective of providing reservations to the Scheduled Castes (SCs), Scheduled Tribes (STs) in services is not only to give jobs to some persons belonging to these communities. It basically aims at empowering them and making sure that they are also involved in the decision-making process of the state.

Besides, the state is also keen to end practices such as untouchability.

Scheduled Castes (SC) are given 15% quota in jobs/higher educational institutions while Schedule Tribes (ST) are given 7.5% quota in jobs/higher educational institutions.

Reservation is provided not only with respect to direct recruitment but also with respect to promotions for SC/ST category (Article 16(4A)). As the reading of Article 16 (4A) suggests, the State Government is required to collect quantifiable data to check the adequacy of representation of the SCs/STs in public services in their state, and it is then upon this data that the government decides whether reservation is required to be given or not.

There is no concept of ‘creamy layer’ with respect to SC/ST reservation. This means that irrespective of the income status or the government posts held by the parents, children of SC/ST parents will get SC/ST Reservation.

OBC Reservation

Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991). The quota for OBCs is 27% in government jobs and higher educational institutions.

However, there is a concept of ‘creamy layer’ with respect to the OBC reservation. Only those from OBC who comes under Non-Creamy Layer would get OBC reservation.

The creamy layer concept brings income and social status as parameters to exclude some of the privileged members of OBC from the extent of reservation. This concept also keeps a check to ensure that the benefits of reservation do not get extended to subsequent generations.

Do you belong to Other Backward Classes (OBC)? What is the OBC reservation eligibility?

Non-Creamy Layer candidates from OBC are entitled to reservations in jobs as well as educational institutions. However, many candidates (and even some bureaucrats) are ignorant about the provisions of the OBC reservation.

If you are a deserving candidate belonging to the OBC category, you should not miss the benefits of an OBC reservation (due to ignorance). In this post, we shall see the criteria for determining whether you fall under OBC Creamy Layer or OBC Non-Creamy Layer.

Other Backward Classes (OBC)

Other Backward Classes (OBC) are socially and educationally backward classes in India. OBCs are distinct from Scheduled Classes (SC) or Scheduled Tribes (ST).

The Central Government of India maintains a list of castes/communities to be considered as OBC.

Benefits of being included in the OBC list:

To uplift Other Backward Classes (OBC), both the Central Government and State Governments are running a lot of programs and schemes. Some benefits include:

  • 27% Reservation Quota with respect to the seats in Government Jobs (like IAS, IPS etc) and Government institutes (like the IIMs and IITs).
  • There is relaxation with respect to the upper age limit for various examinations like UPSC Civil Services Exam.
  • There is relaxation with respect to the number of attempts for exams.
  • There is relaxation with respect to cut-off marks (only lower cut-off marks are usually needed to clear exams).

Will all OBCs get the reservation benefit?

No.

Only if you belong to Non-Creamy Layer OBC, you will get the reservation in jobs as well as in educational institutions. If you fall under the Creamy Layer of OBC, you will not get the benefit of an OBC reservation.

Origin of Creamy Layer concept with respect to OBC

Due to the recommendations of the Mandal Commission, the Central Government issued an Office Memorandum to reserve 27% posts in central government services. The order was challenged by Indra Sawhney (Indra Sawhney and Others Vs Government of India) in Supreme Court (1992).

The constitutional bench of the apex court upheld the decision to reserve 27% reservation for OBC’s in Central Government service. But in the verdict, Honorable Supreme Court cleared that the creamy layer among OBC’s should be excluded from the reservation.

Central Government constituted a commission chaired by Justice Ram Nandan Prasad to identify the creamy layer among OBC’s. The commission recommendations were as such approved by the Central Government.

Based on this, the Central Government issued an order regarding the guidelines and criteria for excluding Creamy Layer among OBC. The same criteria and guidelines are still in force for identifying Creamy Layer among OBC’s.

Note: There is no concept of the creamy layer with respect to SC/ST reservation.

How can you know if you get OBC Reservation?

Central Government maintains a list of castes or communities which are given OBC status. Check the Central List of OBCs – based on your state. If your caste or community is mentioned there, you can apply under OBC quota – provided you meet the Non-Creamy Layer criteria as well.

If the candidate’s community is mentioned in the above list, then the next step is to check whether he/she belongs to the creamy layer or to the non-creamy layer. You should note that reservations are offered only to candidates belonging to the OBC non-creamy layer.

How can you know if you belong to Creamy Layer OBC or Non-Creamy Layer OBC?

The creamy layer is based on the status of your parents.

For the jobs under the Central Government, if the parents of an applicant entered the service as Class I officer before the age of 40 (direct recruitment), the applicant is considered as a creamy layer.

Also, if both the parents of the candidates entered into service as class II officers, before the age of 40 (direct recruitment), and entered into the service before the age of 40, the applicant is considered as a creamy layer.

Who comes under Non-Creamy Layer OBC?

Except for the above children of the above-mentioned employees, almost all get the benefit of “Non-Creamy Layer” Status.

  • If your parents are not directly recruited Class1 (Group A) or Class2 (GroupB) officers OR they do not occupy any constitutional posts (like that of President, Vice President, Governor etc) you are most likely to fall under Non-Creamy Layer OBC.
  • If your parents are not employed by the government, their income should be within the limits by the government to be treated as Non-Creamy Layer OBC.

Income Limit of determining the Non-Creamy Layer Status of OBCs

In order to qualify as an OBC non-creamy layer candidate, the applicant’s parents’ annual income should be less than Rs. 8 lakhs.

Salary and agricultural income are not to be considered as income for calculating annual income for creamy layer status. As far as the Government employees are considered, the entry cadre/post is to be taken into consideration.

While applying the “Income/Wealth Test” to determine the creamy layer status of any candidate, income from the salaries and income from the agricultural land shall not be taken into account. It means that if income from other sources other than the salary and agriculture exceeds the income limit, then only the candidates shall be treated as Creamy Layer.

Note: When the creamy layer concept was introduced, the income limit was set at Rs 1 lakh per annum (1993). Thereafter, it was raised to Rs 2.5 lakhs p.a (2004). It was subsequently increased to Rs 4.5 lakhs p.a. in 2008 and then to Rs 6 lakhs p.a in 2013. The current limit is Rs.8 lakhs per annum.

Read more about the OBC Reservation Eligibility.

EWS Reservation

The Central Government of India recently introduced EWS Reservation. 10% quota is provided for the Economically Weaker Sections (EWS) among General Category candidates in government jobs and educational institutions. This is done by adding clauses for the same in the Indian Constitution (103rd Constitution Amendment Act, 2019).

Economically weaker sections refer to the people or those households whose income is less than a certain threshold income. Tough there may be other factors that determine whether a certain household comes under a certain level of income.

On 7 January 2019, Union Council of Ministers approved a 10% reservation in government jobs and educational institutions for the Economically Weaker Section (EWS) in the General category. The cabinet decided that this would be over and above the existing 50% reservation for SC/ST/OBC categories.

Hence , this is how the EWS receive reservation under such categories.

History of Reservation System in India – Rectifying the Historical Injustice

To an extent, reservation as a policy is pursued by the State to correct the historical injustice done to certain castes by the so-called “upper castes”. The caste system prevailed in India had alienated many “lower castes” from the mainstream – hindering their development. To a great extent, the repercussions are still felt.

Original Constitution of India has provided reservation only for quota in legislatures – that too only for 10 years until 1960 (article 334). Subsequent amendments to the constitution extended the period of reservation for quota in legislatures.

Provisions of reservations in Educational Institutions and Government Jobs – article 15(4) and article 16 (4) – were too created by means of Constitutional Amendments later. No time period is given for the validity of the reservations mentioned in article 15(4) and article 16(4).

The initial reservations were only for SC and ST [article 15(4) and article 16(4)]. OBCs were included in the ambit of reservation in 1991 [article 15(5)]. In 2019, Economically Weaker Sections are also included [article 15(6) and article 16(6)]

Does India need reservation (now)?

It’s the duty of the government to provide equality of status and opportunity in India.

Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes. However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coaching, and other welfare schemes. The way the reservation is implemented and executed in India is largely governed by vote-bank politics.

Indian Consitution allowed reservation only for socially and educationally backward classes. However, in India, it became caste-based reservation instead of class-based reservation.

Initially, the reservation was intended only for SC/ST communities – that too for a period of 10 years (1951-1961). However, it got extended ever since. After the implementation of Mandal Commission report in 1990, the scope of the reservation was widened to include Other Backward Communities (OBCs).

The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after independence, the demand for reservation has only increased. Now, with the introduction of economic criteria for reservation, in addition to the caste-criteria which already existed, things have become more complicated.

Unequal should not be treated equally, but is reservation the only solution?

There is no doubt that unequal should not be treated equally. However, is the current system of unequal treatment perfect? Is it creating more injustice? Is it the only way out in a welfare-nation? It’s time to introspect.

Reservation based entirely on economic criteria is not an all-in-one solution, though family income can be one of the parameters. Also, it’s time to fix a time period for the reservation system – rather than extending it to eternity.

Denying India, the service of the meritorious candidates, who see them being overtaken by others with lesser academic performance or brilliance, is also a crime and injustice. Aren’t there any alternative mechanisms to uplift the marginalized so that everyone gets equal opportunities? How is affirmative action done in other countries? Reforms in the reservation system of India is the need of the hour. However, as the subject of reservation revolves around a lot of votes, parties are reluctant to disrupt the existing system.

50% Cap on Caste-Based Reservations

In Indra Sawhney vs Union of India, 1992, the Supreme Court of India capped caste-based reservation, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.

“Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not exceed 50% and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50% would liable to be struck down.”

While introducing the bill for Economic Reservation in 2019, Arun Jaitley (Finance Minister) contended that the 50% cap on reservations imposed by the Supreme Court was only for caste-based reservations, and the Economically Weaker Section (EWS) reservation won’t be impacted by it.

Poverty cannot be the basis to provide reservation: SC

As per Article 16(4), one of the main purposes of reservation is to provide adequate representation of all classes (castes) in government services. Economic Reservation introduced by Article 16(6) is actually against this concept – as it does not take into consideration the caste-based representation.

Moreover, the reservation is not a poverty alleviation scheme. Supreme Court had also ruled that economic status cannot be the sole criterion for reservation. Many states had tried to implement Economic Reservation, however, they were subsequently quashed by Courts.

Introducing EWS bill in 2019, Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state laws for EWS quota were quashed by Courts because there was no provision for economic reservation in the Constitution before.  Now, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution.

Will Reservation System in India compromise the Merit (and efficiency of the system)?

Article 335 of the Indian Constitution states that

The claims of the member of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union
or of a State.

Provided that nothing in this article shall prevent in the making of any provision in
favor of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs
of the Union or of a State.

Author: Aaryan Mishra, KIIT Law School

Editor: Kanishka VaishSenior Editor, LexLife India

RAISING THE LEGAL AGE OF MARRIAGE: AN ANALYSIS

Reading time : 8 minutes

INTRODUCTION

On December 16, 2021, the Union cabinet approved the proposal of increasing the minimum age for a woman to marry be 21 years[1]. This change will be effective upon the amendment of the Prevention of Child Marriage Act, 2006. The Law commission of India in 2008 suggested the legal age of marriage to be 18 for the both the parties.[2] Presently, the minimum age to marry is 18 for the bride and 21 for the groom.[3]

MOTIVES BEHIND THE AMENDMENT

Referring to the statement of Objects and Reasons of the Prohibition of Child Marriage (Amendment) Bill, 2021, we find the following points as the guiding factors for the Central Government to introduce such a change:

• To bring all round welfare of women (physical, mental and reproductive health), the age of marriage needs to be uniform. Currently, the Christian, Parsi, Muslim, Hindu personal laws do not provide a uniform age for women.

• To secure the constitutional mandate of gender equality is marriageable age.

• To reduce the dependence of women on men due to early marriages.

• To lower maternal mortality rate, infant mortality rate, teenage pregnancies and improve nutritional levels and sex ratio at birth.

• To achieve sustainable development goals and principles under Convention on the Elimination of All Forms of Discrimination against Women.

• To amend the Prohibition of Child Marriage Act, 2006 and reinforce its overriding application on all other laws, custom, usage or practice governing the parties regarding marriage.

Statistics: According to the National Family Health Survey 4 (NFHS 4), 7.9% of women aged 15-19 years, were already mothers or pregnant at the time of the survey, with the prevalence higher in rural areas (9.2%) compared to urban areas (5%). The maternal mortality rate stands at 113 out of 100,000 live births, [2016-2018].[4] Infant Mortality Rate figures show that there occur 28.771 deaths per 1000 live births, which is a 3.61% decline from 2020. The Sex Ratio in India stands at 1020 females per 1000 males which is an improvement.[5]

Research on child marriage from the first decade of the 2000s was largely, often mistakenly, interpreted to suggest that child brides—girls who marry under the age of 18 years—faced a higher vulnerability to and higher rates of HIV acquisition than girls and women who married later. Once married, girls are likely to feel, and in many cases are, powerless to refuse sex. They are likely to find it difficult to insist on condom use by their husbands, who commonly are older and more sexually experienced, making the girls especially vulnerable to HIV and other sexually transmitted infections. It can be amount to regular exposure to domestic or sexual violence, and a pathway to commercial exploitation.[6]

Married girls are often pressurized to become pregnant immediately or soon after marriage, although they are still children themselves and unaware about sex or reproduction. An early pregnancy before a girl’s body is fully mature is a major risk to both mother and baby. Complications of pregnancy and childbirth are the main causes of death among adolescent girls ages 15-19 years old in developing countries. Among the disabilities associated with early childbirth is obstetric fistula, an injury which leaves girls in constant pain, vulnerable to infection, incontinent, and often shunned by their husbands, families and communities.[7]

ANALYSING THE EFFECTIVENESS OF PROHIBITION OF CHILD MARRIAGE ACT (PCMA), 2006

In 2006, the overall incidence of child marriage, i.e., marriage before 18 years of age, was 44.5%. It was 52.5% in rural areas and 28.1% in urban areas. The prohibition of child marriage act (PCMA), 2006 completes 16 years and we shall delve into its impact. A survey carried out by UNICEF in 2018 states that 7% of girl children marry by the age of 15 and 27% marry before the age of 18. The prevalence of child marriage is confirmed by this survey in as late as 69 years since the commencement of the Constitution.

The existing law for prohibition of child marriage (Act of 2006) was passed as an amendment to the Act of 1978 and it increased the age of marriage from 15 to 18 for brides and from 18 to 21 for bridegrooms. A significant reduction in the instances of child marriage was observed after this amendment but the figures have been stagnant in the past 5 years. In 2020, only 785 cases were booked under the PCMA Act, even though data suggests that one in four women in India is still getting married under the age of 18.[8] Clearly, the law is not being effectively used to stop or reduce the number of early marriages from occurring. The PCMA was largely used to criminalise self-arranged marriages, instead of targeting coerced/forced marriages of underage girls.

It increased the levels of punishment handed out to offenders to a fine of one lakh rupees and an imprisonment term of two years. It also introduced Child Marriage Prohibition Officers who were officials entrusted with the task of preventing child marriage and ensuring that the provisions of the Act were not violated. The Act also allowed ex-parte interim injunctions to be issued by the Magistrates so as to stop child marriages. Undoubtedly, these provisions have a positive attitude towards reducing child marriages. But some serious loopholes have been discovered. One such loophole is that PCMA, 2006 does not automatically render child marriages void but makes it voidable at the option of the concerned party. It is not a sufficient remedy for a girl child to avoid marriage after attaining the age of 18. There is a serious possibility of permanent damage to psychological and physical faculties of the child as a result of sexual exploitation.

The amendment does not propose any change in the implementation process. The present Act failed to enforce the legal age of marriage as 18, this casts a doubt on the amendment as well. The status of marriage will remain voidable. Any child conceived or born of such wedlock shall be deemed to be a legitimate child for all purposes.

WHAT TO EXPECT FROM THIS AMENDMENT?

The legal age of women to marry is proposed to be raised to 21 years on the recommendation of the task force led by Jaya Jaitly. She remarked that the rationale behind such a change is not to control India’s population as the fertility rate is already declining. The real reason is to truly empower women and achieve gender equality. The emphasis would be on access to education and livelihood.[9]

“We saw that it is there except in the law on marriage. When it comes to marriage, you put a girl in a disadvantage in terms of accessing opportunities because the law is already embedding a message to her that you need to do that only till you are 18 because after that you have another job to do. So that itself was a very powerful motivating factor for us (to suggest the recommendation).”[10]

NEGATIVE SIDE OF RAISING THE LEGAL AGE OF MARRIAGE/ DOES IT MEAN TRUE EMPOWERMENT?

Marriage in India is subject to various social norms and customs which are unique to each community. Likewise, early marriage is the most prevalent custom. It is believed that a woman’s honour would be protected only if she is married and she will be safe from unwanted attention from other men or from sexual violence for that matter. A lower dowry and lesser chances of elopement are assured in early marriages.

One cannot expect these deep-rooted norms to relax just by increasing the legal age of marriage for women. Also, true empowerment of women will be achieved when other important aspects of a woman’s life are juxtaposed with this change. We shall now analyse the following demerits of increasing the age of marriage from 18 to 21 years for women.

1.         Anomaly in the declining figures of Child Marriage

While child marriage has declined, it has been marginal: from 27% in 2015-16 to 23% in 2019-20, according to NFHS 5. The decrease was, however, significant in NFHS 4, from 47% in NFHS 3. Experts believe that limited access to higher education for girls is contributing to the early marriages.

2.         Poor quality and limited access to education

Due to poor quality of education, lack of infrastructure like toilets, prevalence of sexual harassment, poverty, girls end up dropping out of schools. According to NFHS-4 the median age at first marriage for women increases from 17.2 years for women with no schooling to 22.7 years for women with 12 or more years of schooling[11]. According to The Tribune, women’s education could lead up to 60% fewer women getting pregnant under the age of 17.[12]

Kalpana Kannabiran, Sujit Kumar Mishra, and S Surapa Raju recognise that girls’ access to education has long been curtailed because of an insistence on marriage, primarily before they turn 18.[13] To investigate the relationship between marriage and education, they conducted a comprehensive quantitative and qualitative study in Telangana and Andhra Pradesh. One key finding is that girls who stayed in school for a longer period of time were likely to marry at a later age. They also found that education improved their knowledge about laws, including those on marriage and rights. A diversified and inclusive National Curriculum Framework is needed to cater to the modern needs of education. It seems that vocational courses for women are still traditional like tailoring, typing etc., which makes them ready for ill-paid jobs in the unorganised sector. This will only serve to heighten inequalities by caste, class and gender, by further restricting the access of poor girls, Dalits and other marginal groups to higher education, and decreasing their representation at this level.[14]

3.         Age of majority is 18 years.

According to the Majority Act, 1875, the age at which a person attains majority is 18 years.[15] This is the age at which we can cast our vote, get a driving license, purchase property, open a bank account. It is also the age where one can give free consent for sexual activity.[16]

An absolute ban on marriages below the age of 21 will lead to more cases of elopement and criminalisation of love marriages as well as inter caste marriages. It just enforces the patriarchal control over a young woman’s life.

4.         An attempt to divert the citizens from the failed efforts of the Government.

In 2020-21, the central government employed 3.31 million people. This was lower than the 3.33 million people employed in 2013-14 or the 3.32 million employed in 2012-13. The central government employment had decreased to 3.28 million in 2017-18[17]. It has improved slightly since then but, it is still lower than it was seven years ago.

The government seems less inclined to spend that it can. During April-November 2021, while tax collections rose by 65% and y-o-y and non-tax collections increased 80% y-o-y, central government expenses increased by only 9%.[18] Evidently, the government is unwilling to spend at a rate that matched its revenue growth rate. spending on schemes is not enough. Spending on more toilets, is pointless if the government cannot assure sanitation service.

CHANGES NEEDED FOR EFFECTIVE IMPLEMENTATION

For the better implementation of PCM Amendment Bill, 2021, the following changes/amendments are required-

According to the Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954 and the Indian Christian Marriage Act, 1872, the age of marriage is 18 for females and 21 for males. No personal law of any community in India declares child marriage as invalid. Only the Special Marriage Act of 1954 declares child marriage to be void. under the Hindu Marriage Act, marriage of a minor is valid. Muslim Law recognises the onset of puberty as the age of marriage. a minor can get married if contracted by his legal guardian.[19] The only sanction prescribed against such marriages was noticed to be a punishment prescribed under Section 18 of the said Act which was to the extent of 15 days and a fine of Rs.1,000/-. With registration not being compulsory, one cannot expect to get the real number of child marriage cases. Hence, for PCMA Amendment Bill to be effective, there needs to be an amendment in the Personal Laws. The State needs to ensure that there will not be any loopholes this time.

CASE LAWS

  1. Lajja Devi v. State and Ors.[20]

Prohibition of child marriage act is secular in nature and overrides all barriers of personal laws. Thus, whatever be personal laws, child marriages are prohibited under this Act.

  • Hardev Singh v. Harpreet Kaur and Ors.[21]

According to the literal interpretation of Section 9, it states that if a male is below the age group of 18-21 years and if the female is above 18 years, and they contract marriage, the adult female will not be punished and the male who is a child himself (below 21 years of age) will be punished as per Section 9 of the Prohibition of Child Marriage Act, 2006. The Court observed that the above interpretation is against the object of the Act as borne out in its legislative history.

This Act was passed with the motive to provide protection to child brides in particular. It was also noted that child marriages take place where husbands are much older than the girl child thereby hampering their development. The Court also stated that it is essential that Section 9 of Prohibition of Child Marriage Act, 2006 should be interpreted in the backdrop of the gender discrimination and violence against females.

Thus, Supreme Court inferred that the reason behind punishing male adults who contract child marriage is to protect minor female children. The Act nowhere conveys its intention to punish a male aged between 18-21 years contracting a marriage with female adults. It provides recourse to the male who is a child to get the marriage annulled under Section 3 of the Prohibition of Child Marriage Act, 2006. The Court in conveying the same resorted to the marginal note provided under Section 9 “male adult above 18 years of age marrying a child”.

  • Independent Thought Co. v. Union of India[22]

The petitioner approached the Supreme Court of India by filing a writ petition under article 32 of the Constitution to emphasize the violation of the rights of the young girls who are married before they attain the age of 18 years. The petitioner contended that Exception 2 to section 375 of the Indian Penal Code, 1860 is violative of Articles 14, 15 and 21 of the constitution. Exception 2 states that if a man has sexual intercourse with his wife who is above 15 years old and below the age of 18 years with or without her consent, it will not be considered as Rape.

The court finally struck down Exception 2 to Section 375 of IPC which gave immunity to the husband from the charges of rape and have sexual intercourse with her wife with or without her consent being that the wife is above 15 years of age, but the court read down this exception and now it will illegal if a husband has sexual intercourse with her wife who is above 15 years of age. The Court observed that the non-consensual, sexual acts committed by a husband against his underage wife are punishable under any other laws, even to the same extent as rape under the IPC[23].

  • Saraswati Kumar v. Lokesh Kumar[24]

The petitioner was a minor aged 13 years seeking annulment of her marriage under Section 3 of the PCMA, 2006. The marriage was solemnised when she was a minor and she was forcefully taken away from the custody of her parents. The petition for annulment was filed by her represented by her father in the family Court, Bangalore. Upon receiving notice from the Court, the respondent appeared and stated that he had no objection to the annulment being allowed. The Hon’ble Court, after multiple detailed hearings, passed a decree holding the child marriage to be null and void as per Section 3 of the PCMA and Section 5(iii) of the Hindu Marriage Act, 1955.

CONCLUSION

Child marriage has existed in developing countries since the very inception of the institution of marriage. In India, various communities have their unique customs and traditions but the most common practice is that of early marriage. The first attempt at curbing child marriage was the enactment of the Child Marriage Restraint Act, 1929 which increased the legal age of marriage. It was replaced by the Prohibition of Child Marriage Act, 2006. In 2021, the Prevention of Child Marriage (Amendment) Bill, 2021 was introduced in the Parliament with the view to increase the age of marriage for women to be 21. This amendment, if passed, will have overriding effect on the personal Laws. In my opinion, for the PCM Amendment to be effective, all the personal laws need to be amended as well. But it is obvious that the State will face a tremendous challenge from all the religious communities. Simultaneously, women’s access to higher education, jobs, unconventional vocational courses, health care and sexual awareness require immense development by the State. It has to be ensured that this Amendment will not be used to criminalize self-arranged marriages but forced ones. On one hand, it casts reasonable doubt on the age of consent with is 18 years for all. On the other hand, the number of child marriages is appalling and needs to be curbed. Hence, a careful analysis reveals a whole lot of contradictory questions which the Legislature and the Judiciary will face while hearing cases.


[1] The Prohibition of Child Marriage (Amendment) Bill, 2021 (Bill No. 163 of 2021).

[2] Law Commission of India, “205th Report on Proposal To Amend the Prohibition of Child Marriage Act, 2006 and Other Allied laws” (February, 2008).

[3] The Prohibition of Child Marriage Act, 2006 (Act No. 6 of 2007).

[4] Government of India, “National family Health Survey-5” (Ministry of Health and Family Welfare, 2019-21).

[5] Ibid.

[6] Suzanne Petroni and Others, “On Understanding the Relationships Between HIV and Child Marriage: Conclusions from an Expert Consultation” 64 Journal of Adolescent Health 694-696 (2019).

[7] Ibid.

[8] National Crime Records Bureau, “Report on Crime in India, 2020” (2020).

[9] Sangeeta Barooah Pisharoty, “We Were Progressive In Our Thinking: Jaya Jaitly takes on Women’s marriage Age Move Criticisms”, The Wire, 18.12.2021, available at <https://thewire.in/women/we-were-progressive-in-our-thinking-jaya-jaitly-takes-on-womens-marriage-age-move-criticisms&gt; (18.02.2022)

[10] Ibid.

[11] 5 Reasons Changing the Minimum Age of Marriage is a Bad Move, India, available at: https://www.oxfamindia.org/blog/5-reasons-changing-minimum-age-marriage-bad-move (last visited on February 18, 2022).

[12] Women’s Education in India: What you Need to Know, United States of America, available at: https://borgenproject.org/womens-education-in-india/#:~:text=Having%20equal%20access%20to%20education%20is%20crucial%20to%20alleviating%20poverty.&text=According%20to%20The%20Tribune%2C%20women’s,due%20to%20increased%20career%20avenues (last visited on February 18, 2022).

[13] Kalpana Kannabiran, Sujit Kumar Mishra, S. Surapa Raju, “Investigating the Causes for Low female Age at marriage” 52 Economic and Political Weekly (2017).

[14] Ibid.

[15] The Majority Act, 1875 (Act 9 of 1875), s. 3.

[16] The Protection Of Children from Sexual Offences Act, 2012 (Act 32 of 2012).

[17] Employment and the Government, India, available at https://www.cmie.com/kommon/bin/sr.php?kall=warticle&dt=20220131131123&msec=536 last visited on February 12, 2022).

[18] Id. at 4.

[19] Dr. Paras Diwan and Peeyushi Diwan, Family Law (Allahabad law Agency, Faridabad, 2018).

[20] 2012 Cri.LJ 3458

[21] AIR 2020 SC 37

[22] AIR 2017 SC 4904

[23] The Protection Of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s.6.

[24] 2018

Author: Kusumita Banerjee, Department of Law, University of Calcutta (Hazra Campus)

Editor: Kanishka VaishSenior Editor, LexLife India

TRANSGENDER PERSONS (Protection of Rights) ACT, 2019

Reading time : 8 minutes

INTRODUCTION

“I know I am Transgender because my brain knows its Female, and my body disagrees”-Alan Cohen.

In the world of gender binaries were only male and female are believed to be only genders and anything out or beyond this is considered out of dictionary, LGBTQIA+ community exists where T stands for Transgender. Transgender people are the most suppressed and marginalised community of the LGBTQIA+ community. Transgender persons are neither men nor women but a mix of both called as intersex. They have been existing in every race, caste, religion and region but they have to face humiliation everywhere around. Nevertheless, they were denied all of their basic fundamental rights including Right to Equality (Article 14), Freedom of Speech and Expression (Article 19) and Right to Life and Personal Liberty (Article 21)[1]. They are defined as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta[2]”. Transitioning is opted by them to change various aspects of themselves and it can be social, legal or medical. They may change their name, pronoun used, appearance and physical body. The medical procedure for this is called sex reassignment surgery.

Transgender persons had a better living before British. They were considered loyal and were given privilege. The British criminalized penile-non-vaginal and sexual acts under section 377 of Indian Penal Code, 1860. And also put them under restrictions with the help of Criminal tribes Act, 1871[3]. The dark life of the transgender started to lighten up with the first Rights of Transgender Persons Bill, 2014[4] but it also created a lot of uproar in the society. The bill was again drafted in 2016 keeping in view the recommendations of the judge bench of the landmark judgement of National Legal Services Authority v. Union of India[5]. In the judgement, for the first time the community was considered to be the third gender in the independent India and the centre was directed to consider it as a minority group. The Transgender Persons (Protection of Rights) Bill, 2016[6] did not stand with the expectations and did not follow all the recommendations of the judge bench. And thus was sent to a standing committee in 2016 for review whose report was sent in 2017[7]. This review report and again the landmark judgement of Navtej Singh Johar v. Union of India[8] lead to the third draft of the bill, which become an act in 2019.

The Transgender Persons (Protection of Rights) Act, 2019 was passed by both the houses of parliament after 27 amendments in the 2016 draft according to the standing committee report and judicial precedents. It aims to empower transgender in all aspects of life protecting them for any kind of discrimination on any basis[9]. It also directs the centre to form National Council for Transgender Person aiming to regulate all the activity and address to the grievances.

The act still attracted fury among the transgender community, lawyers, etc. It was criticised as it ignored some of the recommendations of the standing committee, was not parallel with the judgements of the Supreme Court and violated the rights of the transgender community. It again defied the judgement of National Legal Services Authority v. Union of India[10]. Also, it defies the judgement in the cases of Navtej Singh Johar v. Union of India[11] and K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors.[12] Major criticism of the act is on its legislation on identification of the transgender, does not recognise same-sex marriage, no reservation for the transgender and unequal punishment for crimes against transgender.

The following article focuses on the legislative perspective of Transgender Persons (Protection of Rights) Act, 2019. Also all the above mentioned legislations and development is discussed in the following work extensively. It also analyse criticisms against the act to bring out the loopholes and try to put forth the way ahead.

CONCEPTUAL FRAMEWORK

Since forever we have always heard and believed that there exists only two types of people i.e., male and female as per gender. There never existed a word about something called as LGBTQIA+ community. Each letter of LGBTQIA+ has its own story where L, G, B, T, Q, I, A stands for lesbian, gay, bisexual, transgender, queer, intersex and asexual respectively. In this article we will focus our study on transgender community only.

First we need to understand what gender and sex means. Sex is the bodily aspect which includes genitals, chromosomes, etc., on the other hand gender is the social aspect including behaviour, personality, interest, etc.[13] Now, transgender people can be understood as people who do not identify themselves psychologically with the gender given to them at the time of birth which is based on external genital identification. They are commonly known as hijras, kinner, jogta, etc. This is the community of people who have seen the worst side of humanity and society with the advent of British in India. Since then for a number of years they had to fight the society to have their basic rights. The fight still remains with some hopes and development with the legislations brought in along with judiciary support. 

HISTORICAL EVOLUTION

Even after seven decades of Independence, this is one of the communities who are yet been discriminated and marginalised in the same way. But this was not the situation from the beginning. History shows that before British era in India, they were treated in a better way and had a preferable livelihood.

Going into the history we can see mention of transgender in the epics of Ramayana and Mahabharata. In Ramayana, when Ram was living Ayodhya with Sita and Laxman for 14 years they were followed by all the people of the area. When Ram said all men and women to go back it was transgender people who stayed there[14]. This was the incident where they were empowered to bless people during several occasions. Arjuna in the epic Mahabharata himself took the identity of transgender when he was in exile.

Lord Shiva himself has a form which is half of Shiva and half of Goddess Parvati. This form of Shiva is called as Ardhanari which is again a transgender and is sacred to transgender community especially[15]. Even in the sacred book Quran in Islam recognises that there are humans who are not male neither female in the verses of Surah Ash Shura. Also, during the Mughal Empire they were considered very loyal and were trusted with important positions.

In the 19th century with the advent of British rule in India the situation changed into worse for transgender. They were treated as sexual service workers and were denied the basic human dignity and rights. They criminalised all sexual acts between same genders under section 377 of Indian Penal Code (IPC). Also to strengthen laws against transgender just to remove their identity from the society, Criminal Tribes Act, 1871 (CTA, 1871) was introduced and legislated upon. The same was repealed in 1952 by Jawaharlal Nehru government but it has already caused irreversible damages to the life of transgender people.

LEGISLATIONS AND CASE LAWS

After Independence, there has been constant struggle and effort to improve the situation of the transgender by the complete society. It has been a continuous process of making amends. This started with the case of Naz Foundation V. Government of NCT in 2009[16]. Naz Foundation filed a PIL in Delhi High Court challenging the constitutionality of the section 377 of Indian Penal Code. But the PIL was rejected by the court for hearing on the grounds of locus standi. The PIL was accepted assuming public interest when re-appealed in SC. The judgement given by the two judge bench decriminalised homosexual acts without striking down the whole section.

After the judgement, The Right of Transgender Persons Bill, 2014[17] was introduced by Tiruchi Siva, a member of parliament as a private members bill. The bill was never called upon in the Lok Sabha even after being passed in Rajya Sabha. The bill had several progressive ideas for the transgender community. This includes recommendation for establishment of commissions for transgender having national and state level courts[18]. This also promoted the right to equality and dignity for the transgender.

The journey to reach to a place of equality for transgender has not only been slow but unfortunate also. As the judgement of Naz Foundation V. Government of NCT decided in 2009 was overturned by two judge bench in Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors.[19] It was again held that any sexual act within two consenting homosexual is a crime and the constitutionality of section 377 of IPC was again upheld.

After the aforesaid judgement another ray of hope and development came from the judiciary in the National Legal Services Authority v. Union of India[20] case. The statutory body filed a petition in the apex court asserting for accepting gender identity of the transgender. The apex court looked upon the laws of other countries relating transgender and also the Universal Declaration of Human Rights. Eventually, a big step forward was taken by the judge bench by recognising Transgender as a Third gender after having only male and female as gender. It also recognised several fundamental rights for the transgender.

With the judiciary development, legislation of Transgender Persons (Protection of Rights) Bill, 2016[21] was drafted and introduced it in Lok Sabha. The bill had several oppositions and loopholes and thus was sent to a standing committee for recommendations on scope for improvement. The 2016 bill also defied recommendations of the expert committee which was set up for the 2014 bill[22]. As per the committee report for 2016 bill it states that the bill does not per se protect the interest of the intersex person also.

In the year 2017 right to privacy was considered under fundamental rights to be granted to every citizen of India in the case of Justice K.S. Puttaswamy V. Union of India[23] by a nine judge bench. Under this right to personal liberty was promoted which included sexual preferences. This not only paved way for the betterment of transgender but the whole country.

The most waited decision from the apex court came in September, 2018 decriminalising all consensual sex between consenting adults including homosexual intercourse by a constitution bench in Navtej Singh Johar V. Union of India[24] case. The judgement overturned the Koushal V. Naz Foundation case judgement by decriminalising part of section 377 of IPC. The decision was taken keeping in view the fundamental rights of transgender of right to equality, right to life and personal liberty. The parts of the section dealing with minor and non-consensual acts remained.

With the aforesaid case, we have reached to the part of the timeline when the final draft of series of bill relating transgender rights and protection was passed and later became an act.

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

Transgender Persons (Protection of Rights) Act, 2019[25] could have been the brightest ray of hope for change in the life of the transgender community. The bill was drafted after the judgement decriminalizing consensual sexual intercourse between same sex couple. It was introduced again by the minister of social justice and welfare, Thawar Chand Gehlot. The bill was passed in Lok Sabha and Rajya Sabha and obtained President’s assent on 5, December, 2019. The act is in effect since 10, January, 2020. 

Some of the significant features and elements of the act are as follows[26]:

  1. The act provides with legal definition of transgender persons. It defines transgender as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”. It covers intersex community under transgender community only with which many people may not agree.
  2. It has legislations prohibiting discrimination against the transgender community on the grounds of employment, education, movement, residence, life, etc.
  3. According to the judiciary precedence of NALSA V. Union of India, it recognizes transgender person and their identity. It gives right to the transgender to perceive their self-perceived identity. But along with it they need to have an identity certificate issued by the district magistrate on filling applications for it.
  4. The act directs the government to introduce welfare schemes for the improvement and development of the community. This will help to promote their rights and standard of living.
  5. It provides with instructions to the government for providing with proper educational and medical facilities to the transgender people. It gives assurance for future research in the field of medical reassignment surgery.
  6. It makes legislations for dealing with offences and relating penalties. The offences include: physical and sexual abuse, force labor, etc. The punishment can be for six months to two years.
  7. Last but the most important element is formation of National Council for Transgender Persons for execution of the act and providing with needed recommendations. The council will be headed by union minister of Social Justice and Empowerment and will have other members.

CRITICAL ANALYSIS

The act is subject to several criticisms and problems which can be developed and improved upon. The act faced major backlash among the transgender community, scholars and researchers. It was questioned because it did not give proper attention to all the recommendations by the expert committee and the standing committee, and also the recommendations by the judiciary in different cases.

Some of the major criticism of the act is explained below:

  1. Self-identification & Issue of identity certificate – The act states that it is the right of the person to continue their self-perceived identity. But again to have legal recognition it makes it mandatory to have a gender identity certificate issued by the district magistrate. Also, it allows for change in the gender recognitions but only with the attested certificate provided by the medical officer. It contradicts the point of self – identification and makes proof for it mandatory. Above all of this it does not talk about any redressal committee in case of any discrepancies.
  2. Transgender & Intersex – The act defines transgender in its first chapter. But it loosely uses the term intersex and transgender and presents them as a part of same community. There may be case where an intersex person does not identify himself/herself as a transgender. The act also focuses on some group of transgender like hijras and transwomen and not on transmen and intersex.
  3.  Reservations – According to the NALSA V. Union of India case judgement, the government was asked by the judiciary to consider the transgender community as socially and educationally backward classes. As per this there should be reservations for the community in the field of education and employment to encourage their participation. But the act only talks about providing facilities including education and employment and not about reservations and other incentives.
  4. Same – sex marriage – After the Navtej Singh Johar case homosexual intercourse is made legal. But the complete act is silent about homosexual marriage and does not provide any rule for it. The way heterosexual intercourse as well as marriages are legal there is nothing talking about homosexual marriages.
  5. Offences and Penalties – The act provides for penalties against the offences like sexual and physical abuse, harassment, etc. The duration of the punishment for offences against transgender lies only between two months to two years. When compared to punishment for offences against women, this can be said that it is violative of right to equality and treating every person same in the eyes of law. It can be said because under section 354B of IPC punishment for offence against women is minimum 3 years.
  6. Others – Some other elements of the act only states directions for the improvement to the government. It does not mention the way ahead and also does not establish accountability and time limit. For example: there is need to develop the medical care system which is highlighted in the act but the development should be done in a fix time period which is not stated in the act.

GLOBAL POSITION OF TRANSGENDER

Transgender persons face different situations in different countries. Some of the countries have accepted them and are treating them equally, where on the other hand in some countries there fight for equality is still continued.

  • United States of America – In United States of America the transgender are considered and are given the identity of third gender. Their homosexuality is considered as normal as heterosexuality. Under Civil Rights Act 1964, Title VII and Education Amendments 1972, Title IX discrimination against transgender at work place and education centers is prohibited. The country provides for the safety and rights of the transgender.
  • Argentina – In Latin America, Argentina became the first country to legalize homosexuality and identified transgender community. Gender Identity Law was passed in the country in year 2010[27]. It made sex-change surgery a legal right which helped them to get the surgery without having any psychological problems. It also allowed same-sex marriage for the homosexual couples. 
  • Denmark – Denmark even after being a country in Europe, in 2014 allowed its citizen to amend their gender identity in legal documents without any medical treatment or psychiatric evaluation[28]. This was done in Denmark by regulating the Danish Population register. In Europe major countries require medical treatment or sterilisation for gender identification.
  • Germany – Another country of Europe, Germany in 2017 declared to recognise transgender and intersex as third gender. The main application of the decision was that from then, in the birth certificates transgender or intersex can be written[29]. The process of having genital surgery to change gender in legal documents was declared unconstitutional. 
  • Ukraine – Not all the countries have yet accepted transgender, Ukraine is one of them. In the country legal recognition of transgender people comes with the cost of medical treatments including surgeries, sterilisation, tests, etc. This process of psychiatric evaluation last upto 45 days is required to confirm or reject a diagnosis of “transsexualism”[30].

CONCLUSION AND RECOMMENDATIONS

From being counted as a disease to being counted as a third gender they have come a long way. In the century of modernisation and digitalisation their lives a community which still struggles to get their identity. Transgender are those people who do not identify themselves with the gender assigned to them at the time of birth. They are marginalized and discriminated since decades now. They lack the dignity, identity and rights granted to everyone. Slowly and steadily we are moving towards providing a better society to the transgender. But the legislation enacted is less practical then theoretical.

The legislation of Transgender Persons (Protection of Rights) Act, 2019 has provided with some development but there still exists a lot of scope of amendments in it. India adopted several features of its Constitution from several other countries. Similarly, while analysing the position of transgender globally, the researcher came across various arrangements which can be incorporated and adapted in India also. It includes having specific laws for prohibiting discrimination in various fields of life, giving legal recognition to same-sex marriage, proper procedure for medical surgeries, etc. 


[1] Riyaa Singh, Analysis of Transgender Persons (Protection of Rights) Bill, 2019, Legal Service India

[2] Transgender Persons (protection of Rights) Act, 2019, Part II Sec I, Chapter 1(k)

[3] Shruti Iyer, The Third Gender and Indian Law- A Brief history, Blog I Pleaders

[4] Faagrawal, Transgender Persons (Protection of Rights) Act, 2019, Legal Service India

[5] National Legal Services Authority v. Union of India, AIR 2014 SC 1863

[6] Transgender Persons (Protection of Rights) Bill, 2016, Ministry of Social Justice and Welfare

[7] Standing Committee on Social Justice and Empowerment, 43rd Report, Ministry of Social Justice and Empowerment

[8] Navtej Singh Johar v. Union of India, AIR 2018 7 SCC 192

[9] Ayush Raina, A Brief Analysis Of The Transgender Persons (Protection Of Rights) Act, 2019 – Murder Of Gender Justice?, Law Street

[10] See Supra Note No.5

[11] See Supra Note no.8

[12] K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., AIR 2017 10 SCC 1

[13] Candace West & Don H. Zimmerman, Doing Gender. Gender & Society, 125-151, 1987

[14] M.Michelraj, Historical Evolution of Transgender Community in India, Vol. 4 No. 1, 17-19, Asian Review of Social Sciences, 2015

[15] Dr. Subhrajit Chaterjee, Problems Faced by Transgender Community in India: Some Recommendations, Vol. 1 Issue 6, International Journal of Creative Research Thoughts (IJCRT), 2018

[16] Naz Foundation V. Government of NCT, AIR 2009

[17] The Rights Of Transgender Persons Bill, 2014, Bill No. XLIX, As Introduced in Rajya Sabha

[18] Rohan Abraham, All you need to know about the Transgender Persons Bill, 2016, The Hindu (2017)

[19] Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors., AIR 2013

[20] See Supra Note No. 5

[21] See Supra Note No. 6

[22] Report of Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Welfare

[23] See Supra Note No. 12

[24] See Supra Note No. 8

[25] The Transgender Persons (Protection of Rights) Act, 2019, No.40 of 2019, Ministry of Law and Justice, The Gazette of India

[26] Sneha Kolluru, The Transgender Persons (Protection Rights) Act 2019, Law Times Journal, (Nov 20, 2020)

[27] Alexei Barrionuevo, Argentina Approves Gay Marriage, in a First for Region, The New York Times, (July 15, 2010)

[28] Constance Johnson, Denmark: Changing Legal Sexual Identity Simplified, Library of Congress (July 3, 2014)

[29] Livia Gershon, Gender Identity in Weimar Germany, Jstor (Nov 18, 2018)

[30]Rights in Transition – Making Legal Recognition for Transgender People a Global Priority, World Report 2016, Human Rights Watch

Author: Varsha Khowala, SYMBIOSIS LAW SCHOOL, HYDERABAD

Editor: Kanishka VaishSenior Editor, LexLife India

SKIN TO SKIN CONTACT: END TO THE CONTROVERSY

Reading time : 6 minutes

If a person, say, Mr. A, slaps Mr. B with gloves on his hand, will it not be considered as an assault? This might be a weird question to answer, but a very similar and eerie judgment was given by the Bombay High Court, which, however, has been overruled by the decision of the Supreme Court now, and it became one of the landmark judgments of the year 2021.

This article talks about the judgment that was given by the Bombay High Court, why it received criticism of this amount, and what did the Supreme Court held to make this wrong a right. This article will be divided into three parts for this purpose, the very first one will talk about the high court’s decision, the second part will deal with the decision of the Supreme Court and the last part will be of comparative analysis of these two judgments.

“BOMBAY HIGH COURT’S DECISION”

The controversy started with the case of Satish Ragade v. The State of Maharashtra[1], the judgment, in this case, was given by the Bombay High Court’s Nagpur Bench, comprising of Justice Pushpa Ganediwala.

The facts of this case go as follows:

A complaint was made at a police station by the mother of the victim (twelve years old girl), in the year 2020, stating that a man named Satish Ragade in the name of giving her daughter guava, took her to his house and groped her breast through her clothes, and after that also attempted to take off her Salwar. The FIR was lodged by the police officer for the offenses that are punishable under the Indian Penal Code, 1860 (hereinafter IPC) and The Protection of Child from Sexual Offences Act 2012, (hereinafter POCSO) in the special court of Nagpur the charge sheet was filed.

The said special court found the appellant guilty and sentenced him to three years imprisonment for the offenses that are punishable in section 8 of the POCSO Act and sections 354, 363, 342 of the IPC. The appellant filed an appeal in the High Court of Bombay against this order of the Special Court.

Now, the issue before the High Court of Bombay was to decide, “whether the accused is liable to be punished under both the POCSO Act (Section 8) and IPC (sections 354, 342, 363)?

It was held by the High Court that because the groping that has been done by the appellant, was through the minor’s clothes and there was no skin-to-skin contact, it does not fall under the definition of ‘sexual harassment in the POCSO Act under section 7, and hence, the appellant will not be punished as per POCSO Act but only as per the section 354 of IPC, that talks about the outraging of women’s modesty, and at the same time also reduced the sentence of the appellant.

This judgment was setting a very dangerous precedent, and at the same time, it gave a very narrow interpretation to the definition of sexual assault, under the POCSO Act, by stating that, for any offense to fall under the category of sexual assault in this act, there must exist a skin-to-skin contact with the victim, this interpretation has been the very reason why this judgment received such serious backlash from the activists of child rights civil society members. They stated that this decision given by the High Court is unacceptable and obnoxious at the same time. It was also said that this judgment is especially flawed because it deals with children, who on many occasions can’t protect their selves.

Every year approximately ten thousand cases are reported related to sexual abuse of children, India is a country that has a major problem of ‘child sexual abuse’, and in such conditions, this judgment automatically increases the risk of child exploitation.

Hence, the National Commission of Women and the Attorney General for India filed an appeal before the Supreme Court of India Challenging this order of the Bombay High Court.

“JUDGMENT OF SUPREME COURT OF INDIA”

In the case of Attorney General of India v. Satish and Anr.,[2] the Attorney General of India, State of Maharashtra, National Commission for Women, and the appellant filed four appeals before the Supreme Court of India, against the decision given by the Bombay High Court (in Satish Ragade v. the State of Maharashtra), the coram of this case consisted of Justice Bela M. Trivedi, Justice U.U. Lalit, Justice S. Ravindra Bhat.

The issue that was brought before the Supreme Court was related to the interpretation of the POCSO Act, 2012, Section 7.

Supreme Court of India overruled the judgment given by the Bombay High Court, and referred to the dictionary, meaning of the terms ‘physical’, ‘contact’ and ‘touch’, which means ‘of or relating to the body’, ‘the condition or state of touching, or the act of touching’, and ‘the sense that enables one to be aware of things and what it is like when you put your hands and fingers on them’, respectively.

Hence, the court held “that after taking into consideration the meaning of physical contact and touch, both have been used interchangeably by the legislature under section 7, hence, ‘the act of touching the sexual part of the body or any other act involving physical contact, if done with sexual intent would amount to sexual assault within the meaning of section 7 of POCSO Act, 2012.”

Justice Bhat, although completely agreeing with the judgment given by the other justices in this case, briefly separated his opinion and agreed with the judgment given by the Bombay High Court, he said that “the interpretation of section 7 of the POCSO Act by the high court would not merely limit the operation of the law but tend to subvert its intention.”

He further observed, “It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

 As per his view, the flaw in the reasoning of the High Court was that it assumed that section 7 of the Protection of Children from Sexual Offences Act, 2012 does not cover the concept of indirect touch in it or it can also be said that it assumed that the indirect touch is no touch at all. While clarifying this reasoning he said that this section of the Act is meant to cover and covers both kinds of touch the direct one as well as the indirect one.”

The court also stated that “the reason behind the judgment of the High Court does legitimize, but insensitively trivializes an entire amount of unacceptable behaviour which then undermines the autonomy and dignity of the child, by the way of unwanted intrusions.”

This judgment of the Supreme Court was a unanimous one, and the court in clear words said that for an offense to fall under the category of sexual assault under sections 7 and 8 of the POCSO Act, the existence of sexual intent behind such action is necessary and not the skin-to-skin touch.

“RECENT DEVELOPMENT”

In a very recent case of Aparna Bhat v. State of Madhya Pradesh[3], Supreme Court of India quashed the Madhya Pradesh High Court’s condition for bail.

 In this case, the complainant’s neighbour (the accused in this case) went to her house, grabbed her hand, and attempted to sexually harass her, allegedly. The complainant lodged a complaint against the accused with the police for offenses that are punishable under sections 452, 354A, 323, and 506 of IPC. The investigation took place, after which filing of the charge sheet was done.

The accused on the other hand applied for anticipatory bail under section 438 of the Code of Criminal Procedure. 1973. High court while considering the application for the anticipatory bail stated that bail will be awarded on fulfilment of a condition that the accused shall with his wife go to the complainant’s house, with a Rakhi and sweets, and request her (complainant) to tie the thread on his hand and promise to protect her the best way he can.

A petition was filed by Advocate Aparna Bhat against this order of the Madhya Pradesh High Court, questioning the condition that the court has imposed on the accused, how the society will be impacted by it, and if it is acceptable or not.

The issues before the court in this case were:

  1. In the cases of sexual harassment can such compromise be made?
  2. What guidelines must be considered while the bails or anticipatory bails are granted by the court?

The Supreme Court of India while setting aside the condition that has been put forth by the Madhya Pradesh High Court for the grant of anticipatory bail (for the accused to request the complainant to tie Rakhi on his hand). The court while giving the judgment stressed the fact that such a liberal or soft approach must not be adopted by the courts, “which would be in the realm of a sanctuary of errors.”

Supreme Court also laid down a few guidelines that are to be followed whenever any case related to sexual crimes comes before the courts, those are as follows:

  1. The court has to keep in mind that while the case of sexual crime is pending before it, under no condition there shall be any contact between the victim and the accused as bail’s condition.
  2. Bail must be as per the provisions of CrPC and the order of the court shall not reflect notions of patriarchy against women
  3. To suggest that the accused and victim should get married must not be done by the court
  4. The court shall not give judgments on any biases or stereotypes.
  5. Court also made it mandatory to include a module as a part of every judge’s ‘fundamental training’, to make sure that while hearing cases related to sexual crimes, they eliminate misogynist mentality
  6. Supreme Court of India also directed the Bar Council of India to incorporate “gender sensitization” in the course of LL. B and also a compulsory topic in the syllabus of the All India Bar Examination.

Directing the victim to tie Rakhi on the hand of her harasser will be more traumatic to her than anything else, making the victim go through such trauma not once, but twice, will not help in achieving the justice, that the Constitution of India guarantees to provide.

Bringing the concept of gender sensitization in the course of law at an early stage will further help in avoiding such judgments which are based on biasness, understanding the need of different genders will help the future judges in making broad-minded judgments, as well.

This judgment of the Supreme Court threw light on the most important matter that is, gender sensitization. The main cause behind the discrimination among genders is the patriarchal mindset that remains instilled in the mind of the society, with such a mindset a case related to sexual abuse can never be judged justly.

Often it has been seen that while a case is pending before the court in India related to the sexual abuse, the stereotypical questions like, what kind of clothes were victim wearing, at what time she was out of her house, et cetera are raised, what these questions only results in is victim-blaming, which is another issue in this country, a female has been harassed sexually, and instead of supporting her we ask her why she was out so late, why was she wearing tight clothes, with whom was she out when the crime happened, all of this doesn’t help in reaching to a just decision but a judgment based on stereotypes, or biasness.

Hence, this judgment of the Supreme Court is a game-changer and must be followed in all circumstances.

“OPINION AND CONCLUSION”

About the rule of interpretation, the Supreme Court of India has held in the case of Maharashtra State Co-op. Bank Ltd. V. Assistant P.F. Commr. &Anr[4], that, “it is vital for the courts of the country to provide with a calculated interpretation to the provisions while keeping in view the Articles 39 and 15 of the Indian Constitution. However, courts cannot interpret the provisions in such a way that it creates confusion or defeats the purpose of the legislation.” 

Similarly in another case of Southern Electricity Supply Co. of Orissa Ltd v. Sri Seetaram Rice Mill[5], the Supreme Court of the country held that “the rule of interpretation must be effectively applied on the provisions of the present type. It should be kept in mind that such interpretation shall not be accepted which frustrates the law itself in the provisions.

When a case[6] came before the Supreme Court of India where it has to deal with the interpretations of some provisions of the Protection of Children from Sexual Offences Act, 2012, it held that “whenever a humane or social welfare legislation is interpreted, the interpreter must be guided by the content, statute’s context, and colour”.

As per my opinion of the interpretation that was given by the Bombay high court in the case of Satish Ragade if accepted, it will render various acts of sexual abuse out of the coverage of the Protection of Children from Sexual Offences Act, 2012. Say, Mr. A, with sexual intent, undresses a child, while wearing gloves on his hands, and touches the child’s naked body, as per the interpretation given by the high court this act will not be considered as sexual assault because, there has been no skin-to-skin contact, or no physical contact with the victim’s person, therefore, it will fall out of the ambit of the POCSO Act, 2012, hence letting the offender roam free or with lesser punishment than what he/she deserves.

If the High Court’s interpretation were to be allowed, not only the POCSO Act but IPC would also have been affected. Section 354 A of the code talks about sexual harassment and the punishment for the same, this section also uses the term physical contact, now following the High Court’s interpretation for the terms physical contact or touch, will automatically harm the intent with which this amendment was brought in the code.

The very concept of “sexual assault” of a child, doesn’t have anything to do with skin-to-skin contact between the assaulter and the victim. Presuming that a child can never be abused by a person when he/she is fully clothed, only means to remain oblivious of the obvious truth. This actually sums up to downplaying such a serious crime that has become a threat today.

Hence, the interpretation that must be given to the term physical contact/touch must be such that it does not defeat the intent of the legislator, but such that further such purpose of the Act, itself.


[1] Criminal Appeal No. 161 of 2020

[2] Criminal Appeal No. 1410/2021

[3] Criminal Appeal No. 329/2021

[4] Civil Appeal No. 6894/2009

[5] Civil Appeal No. 8859/2011

[6] Eera v. State, Criminal Appeal No.12171219 of 2017

Author: Vaishnavi Vats, Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan

Editor: Kanishka VaishSenior Editor, LexLife India

Identity theft in the internet

Reading time: 8 minutes

   TABLE OF CONTENTS

  • INTRODUCTION ………………………………..
  • How Does Identity Theft Happen?:…………………….
  • How to tell if your identity has been stolen ………………………..
  • Reporting identity theft…………………
  • Identity protection by organizations………………….
  • Identity theft insurance……………………………
  • What’s The Department of Justice Doing About Identity Theft and Fraud?……………………
  • Penalties for identity theft………………………
  • CONCLUSION…………………………..
  • BIBLIOGRAPHY………………………………

Introduction

Identity theft, is a crime of opportunity basically done by impersonating a victim to obtain valuable things such as credit cards, loans and other valuable items in name of the victim than theirs. It occurs when ones personal information is available to the public, or important mails are left unattended or unsupervised. Identity Theft can occur as casually as on such Social Networking sites like Orkut and Face book which encourages one to reveal ones Personal Information in order to have a so called Celebrity Status, but anyone who hates your guts can tarnish your personal information and can ruin your public image Identity. The stolen information can be used to run up debt purchasing credit, goods and services in the name of the victim or to provide the thief with false credentials. In rare cases, an imposter might provide false identification to police, creating a criminal record or leaving outstanding arrest warrants for the person whose identity has been stolen. While identity theft can happen to anyone, there are some things you can do to reduce your risk. If you think someone is using your personal information to open accounts, file taxes. Determining the link between data breaches and identity theft is challenging, primarily because identity theft victims often do not know how their personal information was obtained. According to a report done for the FTC, identity theft is not always detectable by the individual victims.[6] Identity fraud is often but not necessarily the consequence of identity theft. Someone can steal or misappropriate personal information without then committing identity theft using the information about every person, such as when a major data breach occurs. A US Government Accountability Office study determined that “most breaches have not resulted in detected incidents of identity theft”. There are several identify theft protection services that help people avoid and mitigate the effects of identity theft. Typically, such services provide information helping people to safeguard their personal information; monitor public records and private records, such as credit reports, to alert their clients of certain transactions and status changes; and provide assistance to victims to help them resolve problems associated with identity theft.

How Does Identity Theft Happen?

The methods that criminals use to get identity from people are always changing. There are 3 particular categories that these methods can be divided into. The first category is information given away. This method is referred to as the easiest way to steal someone’s identity. This occurs when people simply just give away information like their address to strangers or when they are not safe online and their personal information can be accessible to anybody. The second category is known as offline methods.This category includes techniques like dumpster diving, shoulder surfing, wallet or document theft, bogus phone call, skimming, pretexting, and business record theft. The third category is referred to as online methods. Identity (ID) theft happens when someone steals your personal information to commit fraud. The identity thief may use your information to apply for credit, file taxes, or get medical services. These acts can damage your credit status, and cost you time and money to restore your good name

Types of identity theft

The two categories of identity theft are:

True-name identity theft means the thief uses PII to open new accounts. The thief might open a new credit card account, establish cellular phone service or open a new checking account to obtain blank checks.

Account-takeover identity theft is when the imposter uses PII to gain access to the person’s existing accounts. Typically, the thief will change the mailing address on an account and run up a bill before the victim realizes there is a problem. The internet has made it easier for identity thieves to use the information they’ve stolen since online transactions are made without any personal interaction.

There are many different examples of identity theft, including:

Financial identity theft. This is the most common type of identity theft. Financial identity theft seeks economic benefits by using a stolen identity.

Tax-related identity theft. In this type of exploit, the criminal files a false tax return with the Internal Revenue Service (IRS), for example, using a stolen Social Security number.

Medical identity theft. This is where the thief steals information, such health insurance member numbers, to receive medical services. The victim’s health insurance provider may get fraudulent bills. This will be reflected in the victim’s account as services they received.

Criminal identity theft. In this example, a person under arrest gives stolen identity information to the police. If this exploit is successful, the victim is charged instead of the thief.

Child identity theft. In this exploit, a child’s Social Security number is misused to apply for government benefits and open bank accounts or other services. Criminals often seek the information of children because the damage may go unnoticed for a long time.

Senior identity theft. This type of exploit targets people over the age of 60. Senior citizens are often identified as easy theft targets. It is important for seniors to be aware of the evolving methods thieves use to steal information.

Identity cloning for concealment. In this exploit, a thief impersonates someone else to hide from law enforcement or creditors. Because this isn’t always financially motivated, it’s hard to track and there often isn’t a paper trail for law enforcement to follow.

Synthetic identity theft. In this type of exploit, a thief partially or completely fabricates an identity by combining different pieces of PII from different sources. For example, the thief may combine one stolen Social Security number with an unrelated birthdate. Usually, this type of theft is difficult to track because the activities of the thief are recorded files that do not belong to a real person.

How to tell if your identity has been stolen

Victims notice withdrawals from their bank account that weren’t made by them; an impacted credit score; victims don’t receive bills or other important mail containing sensitive information; victims find false accounts and charges on their credit report; victims are rejected from a health plan because their medical records reflect a condition they don’t have; victims receive an IRS notification that another tax return was filed under their name; and victims are notified of a data breach at a company that stores their personal information. An identity thief could also create fake social media accounts pretending to be you, use your info to pass a job background check or rent an apartment. Fraudsters often target people with a strong credit history and no criminal background.

How to protect yourself against identity theft

To protect themselves from identity theft, experts recommend individuals regularly check credit reports with major credit bureaus, pay attention to billing cycles and follow up with creditors if bills do not arrive on time. And people must destroy unsolicited credit applications and watch out for unauthorized transactions on account statements.  The new program for infecting users’ computers was called Zeus, and the program is so hacker-friendly that even an inexperienced hacker can operate it. Although the hacking program is easy to use, that fact does not diminish the devastating effects that Zeus (or other software like Zeus) can do on a computer and the user. For example, programs like Zeus can steal credit card information, important documents, and even documents necessary for homeland security. If a hacker were to gain this information, it would mean identity theft or even a possible terrorist attack. The ITAC says that about 15 million Americans had their identity stolen in 2012. People must avoid carrying Social Security cards or numbers on them and avoid giving out PII in response to unsolicited emails and shred discarded financial documents. Check your financial accounts often and keep tabs on your credit reports to look for changes you didn’t make. Don’t click links, open attachments, or respond to emails from unfamiliar or untrusted sources. These may contain malware. Set up alerts on your banking and credit card accounts. For example, your bank may notify you each time there’s a withdrawal from your checking account.

Reporting identity theft

Reporting identity theft can help law enforcement bring criminals to justice and help keep your information safe. When criminals steal a firm’s credit card records, they produce two distinct effects. First, they make off with digital information about individuals that is useful in many ways. For example, they might use the credit card information to run up huge bills, forcing the credit card firms to suffer large losses, or they might sell the information to others who can use it in a similar fashion. Second, they might use individual credit card names and numbers to create new identities for other criminals. For example, a criminal might contact the issuing bank of a stolen credit card and change the mailing address on the account. Next, the criminal may get a passport or driver’s license with his own picture but with the victim’s name. Identity theft can be initiated in a number of ways. You may receive a notice from a company you do business with that says your personal information was exposed in a data breach. You could lose your wallet. Someone could hack your online accounts, such as an eCommerce site or social media site. The Identity Theft and Assumption Deterrence Act prohibits “knowingly transferring or using a means of identification with the intent to commit, aid or abet any unlawful activity that constitutes a violation of federal law or that constitutes a felony under any applicable state or local law.”

Identity protection by organizations

In their May 1998 testimony before the United States Senate, the Federal Trade Commission (FTC) discussed the sale of Social Security numbers and other personal identifiers by credit-raters and data miners. The FTC agreed to the industry’s self-regulating principles restricting access to information on credit reports. According to the industry, the restrictions vary according to the category of customer. Credit reporting agencies gather and disclose personal and credit information to a wide business client base.

Poor stewardship of personal data by organizations, resulting in unauthorized access to sensitive data, can expose individuals to the risk of identity theft. The Privacy Rights Clearinghouse has documented over 900 individual data breaches by US companies and government agencies since January 2005, which together have involved over 200 million total records containing sensitive personal information, many containing social security numbers. Poor corporate diligence standards which can result in data breaches include failure to shred confidential information before throwing it into dumpsters failure to ensure adequate network security credit card numbers stolen by call center agents and people with access to call recordings the theft of laptop computers or portable media being carried off-site containing vast amounts of personal information. The use of strong encryption on these devices can reduce the chance of data being misused should a criminal obtain them. The brokerage of personal information to other businesses without ensuring that the purchaser maintains adequate security controls Failure of governments, when registering sole proprietorships, partnerships, and corporations, to determine if the officers listed in the Articles of Incorporation are who they say they are. This potentially allows criminals access to personal information through credit rating and data mining services.

Identity theft insurance

Some identity theft resources, such as insurance, can help victims. Identity theft insurance can help victims expedite slow and costly recovery processes. Identity theft insurance usually only covers recovery costs, not the damages caused directly by the theft. Depending on the policy, expenses covered may include the following:

lost wages

childcare costs

credit monitoring services

legal fees

copies of credit reports

Identity theft insurance is available either as an endorsement to homeowners or renters insurance policies, or as a standalone policy. They often have deductibles of $100 to $500. They also usually have benefit limits of $10,000 to $15,000. This means damages that exceed the limit are not fully covered and the victim must pay the difference.

Victims seeking an alternative to insurance or help beyond insurance can use identity theft protection services. These services differ from identity theft insurance policies in that they may provide reimbursement of stolen funds, restoration services and credit monitoring services for a fee.

What’s The Department of Justice Doing About Identity Theft and Fraud?

The Department of Justice prosecutes cases of identity theft and fraud under a variety of federal statutes. In the fall of 1998, for example, Congress passed the Identity Theft and Assumption Deterrence Act. This legislation created a new offense of identity theft, which prohibits “knowingly transfer[ring] or us[ing], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.”. This offense, in most circumstances, carries a maximum term of 15 years’ imprisonment, a fine, and criminal forfeiture of any personal property used or intended to be used to commit the offense.

Penalties for identity theft

Penalties for identity theft are wide-ranging and can be severe. They vary based on offense. Some penalties for identity theft include In certain first-offense scenarios, thieves may be sentenced to probation if they didn’t cause significant harm. Those on probation may still be responsible for fines and restitution. Being issued felony and misdemeanor charges is the most common consequence for perpetrators. The thief may be required to compensate the victim for financial losses, including lost wages, legal fees and potentially emotional distress costs. Perpetrators of identity theft in the U.S. are often face imprisonment, with the minimum sentence being two years for aggravated identity theft. This penalty increases with case severity.

Conclusion

In conclusion, identity theft is illegal, unethical, and very dangerous to the victim. This is because identity theft can cause a lot of financial and reputation damage to the victim and his/her family. It is a shame that there are so many cases of this crime in the world today. Having said all of this, it is really important to prevent identity theft by being careful of your actions. However, as technology is advancing, it is becoming harder and harder to do so. Due to this fact, it is important for each individual to know what identity theft is and what they can do to prevent it from happening. After this is accomplished, identity theft will be minimized and this world will be a better and safer place. Identity theft is a nonethical criminal offense. It is when someone gathers someone’s personal information and uses it against them. Fraudsters usually get a hold of personal information using three methods: information given away, offline methods, and online methods. People commit this crime for many different reasons, but they all have one common goal of using someone else’s identity to their advantage. There are many different types of identity thefts, which are categorized on what the criminal is using the identity for. Having said all of this, identity is a crime that can cause a lot of finical and reputation damage to the victim and that is why it is important to prevent it. Identity theft can be prevented if everybody knows exactly what it is and what they can do to keep their identity safe. In closing, it is fair to say that identity theft is one of the increasing crimes and could be leading the crime charts in the near future, and is why one must always be precautious with their sensitive key information and not leave their important emails or devices that contain personal information unattended. One should be vigilant towards the warning signs and act upon them at the earliest.

BIBLIOGRAPHY

.https://www.google.com/search?q=identity+theft&oq=identity+theft&aqs=chrome.0.69i59l4j69i60l3.4020j0j4&sourceid=chrome&ie=UTF-8

. https://www.legalserviceindia.com/legal/article-1619-identity-theft-a-modern-crime.html

. https://www.techtarget.com/searchsecurity/definition/identity-theft

Author: Subodh Gautam, School of law, University of Petroleum and Energy Studies.

Editor: Kanishka VaishSenior Editor, LexLife India

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding cognizance and Committals.

Reading time : 8 minutes

ABSTRACT

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding Cognizance and Committals.

This paper covers the cognizance powers of four different courts and as we know each court has its own jurisdiction and the circle for operating is different for all courts. We will cover different aspects of cognizance under Sec 190 CrPC, for magistrate and also sections regarding different courts. This paper is concerned about the territorial and pecuniary jurisdiction of courts, here mainly I will try to reflect the scenario in State of Bihar, the process for executing their powers. We will also cover about committing of cases by lower court and also double committals by higher courts. Several cases regarding this will be covered and how these cases reflect the true nature of judiciary in deciding cases and giving justice to common people. This papers also covers the charges, its contents and also joinder of charges will be discussed, scenarios were joinder is possible and the circumstances and cases regarding that. This paper is also concerned about the faulty charges, and the process for rebuttals for that wrong charges, what rights are possessed by the accused if he is charges with wrong charges if proved, steps will be covered and the currents cases and judgments will be discussed for inoperative charged against the accused.

Keywords – Joinder of Charges, Rebuttals, Committals, Cognizance, Territorial Jurisdiction, Pecuniary Jurisdiction, Inoperative Charges.

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding Cognizance and Committals.

1. Introduction to charges and its Joinder.

1.1– If the definition of charge is concerned, it is defined under Sec 2(b) of the code of criminal procedure, it is generally all the allegations which the accused is responsible and in the further trail he/she will be tried with the given provisions i.e. Charge which is framed by the court. The charges are generally framed to clear he is accused and these are the further provision he will be charged with and a notice is sent to the accusation and to called upon for the court trials. The above statement was stated by the court in the case of V.C Shukla v/s State[1].

1.2 – Contents of the charges – Contents of the charges are defined in Sec 211 of the code of criminal procedure and the following content should be present while framing charges –

1.2.1 – Offence needs to be given for which the accused is being charged and to be tried further.

1.2.2 – If there is some specific name for specific offence in the law, then it is necessary to mention with that specific name.

1.2.3 – If in the case the specific name is not given then, the definition of the offence should be stated.

1.2.4 – All the necessary section for which the accused is charged or is said to have committed needs to be mentioned while framing the charges.

1.2.5 – The court language must be preferred while writing the charges.

2. Faulty while framing the charges and its repercussion –

Repercussion when framing the charges are given in Sec 215 and sec 464 respectively. The main objective of these sections are to prevent that there should be no injustice on the party’s end if some technical error or some breach of rule is exercised. These two when read together, mainly points out that whatever the errors or irregularity is present while framing the charges, it will not be considered as blunder mistake or fatal mistake if no prejudice caused to the accused.[2]

2.1 – These sections also say that if there is some error or irregularities in stating the particulars of the offence and in this scenario this irregularity or error will not the trial procedure or the outcome so generated.

2.2 – Then in this case to decide, when the irregularity or error has caused some prejudice to the accused, the could should have regard to the manner in which the accused presented or conducted his defence and also about the nature of the objection during the trial procedure.

2.3 – The object of the charge is to provide a notice about the matter that he is liable and charged with, and if this important information is conveyed  to the accused and in this scenario he can’t claim or try to escape from his liability just by stating that the charges were defective in nature[3] and the also the same principle applies to the conviction itself, if the conviction recording is done through provisions be reversed and if this is being informed to the accused then and there is no such prejudice caused whatsoever then in this case they can’t escape their liability dur to defective of charges. The mere omission and minor technical difficulties are not the sole cause which can make a person either convicted or acquitted for obvious reasons stated above.

3. Amendment or Alteration of charges

Sec 216(1) of Code of Criminal Procedure, says about that court has power to bring amendment in the charges at any point of time before judgement is given. This section provides a comprehensive power to correct the charges when framed wrong or also when there is no framing of charges but the charges needs to be framed, whether discovered at the initial stage or after trial procedure or during trial procedure but prior to the judgement can amend the charges.

This code provides a broad power to amend the charges either by the trial court or appellate court but the condition that the accused should be charged with new charges for the new offence and it should also not cause any prejudice by not stating him the fault  charges or not giving him opportunity to bring a defence against the defective charges or to attend the meeting regarding the defective charges.[4] But as we know this provides a wide power to the court, but court has to exercise this power efficiently and in the judicial manner that no prejudice is caused to the party either accused or defence whatsoever.[5]

4. Joinder of Charges

The main section regarding framing of charges comes under Sec 218 which states that for every offence so committed that the person so liable has to charge with a separate charge and should be tried separately and distinctively. But Sec 219 to Sec 223, talks about the joinder of charges which in case acts as an exception to the provisions under Sec 218. Following are the conditions which states that where joinder of charges is applicable –

4.1 – Sec 219 (1) and (2) jointly, talks about that if the offence so committed is of same kind and by the same person and then the charges will be joined and should be tried jointly and if the offense have been committed under a span of 12 months and clause (2) states that when the offense so committed are same and are comes under the same ambit of punishment and they can be charged jointly.

4.2 – If a person committed some offences and in a series of acts which are somewhat connected to each other and forming a same and single transaction, then also in this case the charged can be joined and a single trial for all the charges will be conducted and this provision is given under Sec 220.

4.3 – Sec 221 hereby deals with the confusion, that if some person done some offences using series of acts  and the confusion started regarding the proving of facts then in this case accued may be charged with the any of the offences so proved or all the offences so proved, and if accused is charged with one offence and during the evidence it is found that he has committed more offences or different offence, then he may be convicted with the same even if he has not committed the offence or charged with the same.

4.4 – Sec 223 deals with the class or group of persons who have committed the same offence and somewhat found common in their intentional thinking, then in this case all the persons are charged and tried jointly. Some conditions are given under Sec 223 which states about the following person which can be charged jointly – 

4.4.1– If the group of persons have committed the same offence and in the identical course of transaction.

4.4.2 – A single person who has committed the offence and the remaining other helped him or abetted him to do the same then they all will be charged jointly.

4.4.3 – All the person who comes under the spectrum of Sec 219 of Code of Criminal Procedure.

4.4.4 – All the person who have committed in the same course of transaction but different offences, then they will be tried jointly.

4.4.5 – The person who have committed offences such as extortion, theft, robbery or criminal misappropriation and all the person who are retaining these properties or concealing the property then all the persons liable are to be charged and tried jointly.

4.4.6 – The group of person or class of persons who have committed the offence which comes under the spectrum of Sec 411 and Sec 414 of Indian Penal Code respectively which deals with the stolen property and its possession then in this scenario they will be tried jointly.

4.4.7 – The group of persons which committed the offence which comes under the ambit of Chapter XII of Indian Penal Code which deals with the possession of counterfeit coins then in this case they will be charged jointly.

4.4.8 – Lastly, all the accused person which doesn’t comes under the ambit of the conditions stated above or the classes of Sec 223, cannot himself claim a joint trial. The proviso of this section provides discretionary power of the court.

5. Jurisdiction of Courts

Jurisdiction of courts can be stated as the limit on which a case can be tried or the extent where the court can exercise its power for which the appeals and suit are filed. The main rationale behind this jurisdiction procedure is that the case and appeals so filed should fall in the court’s geographical location so that the judgement so given could be converted into action and should fall under the court’s pecuniary limits. Now, types of jurisdiction and the court so defined under it –

5.1 – Subject Matter Jurisdiction – It can be defined as the courts which are given authority to try the case of particular subject matter. For example, we can say that the consumer courts or district forums have only authority to try cases related to consumer products, it can’t try civil or criminal cases.

5.2 – Territorial Jurisdiction – The name already defines this jurisdiction, this jurisdiction states that the geographical limits of the courts. The authority is vested only up-to its geographical limit, they can’t exercise their authority beyond their territorial limit. The courts so associated are the State high courts considering their state boundaries and the district courts considering their district geographical limits.

5.3 – Original Jurisdiction – It talks about the court for taking cognizance at the first instance of case, they are courts who have the original jurisdiction to try the particular cases as the first instances. It is different from appellate jurisdiction as in appellate a case comes after hearing of the particular case and is appealed again and in the case of original jurisdiction it is done at the first instance that the case is a fresh case and is in proceeding or tried the first time. For e.g. we can the high court of Allahabad has the original jurisdiction to try the cases of matrimonial, testamentary, probate and company matters.

5.4 – Appellate Jurisdiction – It defines as the authority of the court which can hear the case after reviewed from the lower courts or where the judgement is given from the lower court. The courts which holds the appellate jurisdiction are High courts and Supreme Court of India. These courts have power to overrule the past judgements or uphold the judgement or could also amend the sentence.

6Process of Magistrate’s cognizance and committals.

6.1 – Taking of Cognizance by Magistrate –

6.1.1 – Taking of cognizance is not defined in the Code of Criminal Procedure, but under Sec 190 it is stated that magistrate can take cognizance under Sec 190(1) (a), of Code of Criminal Procedure, he must not only have applied his mind only for the content of the petition but also  for the purpose of the accused that the accused gets his defence or should be tried lawfully.

6.1.2 – Sec 193 – Committal by the court of session, in this case the court of session has power to take cognizance of a case but this cognizance can only be taken if the case is itself committed by the magistrate unless this the court of session can’t take cognizance of a particular case. And this committal is done under Sec 209 od CRPC.

6.1.3 – Sec 195-199 – As we know that magistrate possess the power to take cognizance under Sec 190(1) but, this power is not absolute this authority or jurisdiction can be taken away by the conditions provided under the provisions given under Sec 195-199, so at the time of taking cognizance the magistrate should always examine the facts of the complaint etc. and determine his jurisdiction to take cognizance is there or not or is it taken by the latter provisions.

6.1.4 – Sec 345 – This sec of CRPC deals with taking cognizance with the offences namely contempt which is given in sec 175, 178, 179, 180 and 228 of Indian Penal Code and give power to civil, criminal or revenue courts to take cognizance for the same.

6.1.5 – Under Sec 190(1) (a) – it deals with the cognizance taken under complaint so presented by the person. Sec 190(1)(b) deals with the cognizance taken under police report presented by the police officer after investigation. Sec 190 (1) (c) deals with the cognizance upon the information which is received from any person after analysing the situation.

6.2 – Committal process of magistrate

Under Chapter XVIII, old Cr.P.C. procedure of inquiry into cases triable by the court of Sessions or High Court is indicated. Here also, the proceedings can be started either on private complaint or on a police report. U/s. 207-A of the Code, after report is filed U/s 173 Cr.P.C. by a police officer, the accused is supplied with document and the prosecution examines witnesses to the occurrence to establish prima-facie case against the accused. Based on the material available and on hearing both sides, Charges are to be framed either under one head or under two or more heads under Schedule V in forms XXVIII (1) and (2) respectively. The accused are to be supplied with copy of Charge under seal and signature of the Magistrate. On being satisfied that a prima-facie case is made out, the Magistrate has to commit the accused for trial to the Court of Sessions to take the trial. The Magistrate has to commit the accused for trial subject to provisions of the court regarding the taking of bail, warrant to custody as laid down u/s. 207-A (16). A committal order is to be passed bringing out the brief history of the case, evidence adduced before him and the fact of considering both the evidence and record. It shall also contain the stages of the enquiry like supply of documents, framing of charges etc. The Magistrate has to ascertain from the accused during his examination whether he is competent to defend himself or “Legal Aid” to be provided. He should also ascertain whether the accused has any defense and the particulars of the witnesses if stated or inform the accused that he can furnish the information before the Sessions Court. The Magistrate should not give any findings on the facts since it is only an enquiry at committal stage. Only with the committal of the accused by a Magistrate, the Sessions Court will have the jurisdiction to try the accused. This procedure is envisaged to save the valuable time of the Sessions Court and High Court

7. Conclusion

This paper covered all the important points related to charges, its joinder and faulty charges. Consequences of faulty charges were discussed i.e. if the charges then the defence can’t get acquitted or prosecution gets the conviction solely on the basis of faulty charges. If the faulty charges didn’t cause any prejudice to any of the parties then it can be amended or altered at any point of time before the judgement is given under Sec 216(1). Several circumstances where joinder of charges takes place were discussed which are covered under sec 219-223, i.e. when the class of person can be tried together or when the charges can be joined. After that different jurisdiction were discussed and how different courts lie under different jurisdiction i.e. consumer courts lie under subject matter jurisdiction and they can’t try the cases of civil or criminal matters, they don’t have authority or jurisdiction to do so. Further territorial, pecuniary, original and appellate jurisdiction were discussed. Cognizance power of magistrate is discussed i.e. under Sec 190 (1) magistrate has power to take cognizance on the matter i.e. apply his/her judicial mind, this power can be taken back under the conditions provided under sec 193-199. Lastly, the committal process of magistrate is discussed, how magistrate commits the case, and then tried by higher court i.e. session court’s judge.


[1] 1979 AIR 962

[2] Kailash Gir v/s V.K.Khare, Food Inspector, 1981, CriLj 1555, 1556(MP)

[3] SS Rout v/s State of Orissa, 1991 CriLj 254 (Bom.)

[4] Kantilal Cahndulal Mehta v/s State of Maharashtra, (1969) 3 SCC 166

[5] Harihar Chakravorhty v/s State of W.B., air 1954 SC 266

Author: Ujjwal Kumar, School of law, University of Petroleum and Energy Studies

Editor: Kanishka VaishSenior Editor, LexLife India

LEGALITY OF MARITAL RAPE

Reading time : 6 minutes

ABSTRACT

Despite the fact that marital rape has received increased attention in recent decades, there is still a scarcity of literature on the subject. This article examines the current state of marital rape studies in detail. First, the long history of legal, cultural, and professional invalidation of marital rape victims is reviewed, as well as the unfavorable therapeutic ramifications. Second, studies on marital rape are analyzed, including prevalence, descriptive, and comparison studies. The severity of marital rape in terms of prevalence and post-trauma pain is highlighted in this review, as well as the limitations of existing studies

INTRODUCTION

According to existing law on marital rape, the wife over the age of 15 is presumed to have given her agreement to any sexual conduct by her husband after entering into marital relations, which can never be sanctioned when the husband pushes himself upon her.

 If the wife is between the ages of 12 and 15, the husband can be charged with marital rape, which is punishable by prison for up to 2 years or a fine, or both; if the wife is under the age of 12, the offence is punishable by imprisonment of either description for a term not or less 7 years but which may extend to life or for a term extending to life rape of a judicially separated wife, a crime punishable by imprisonment for up to 10 years and a fine; rape of a judicially separated wife, an offence punishable by imprisonment for up to 2 years and a fine. However, Section 375 of the Indian penal code has a dual purpose: on the one hand, it criminalises marital rape; on the other hand, it restricts marital rape to women under the age of 15, allowing husbands to inflict physical and mental cruelty on their wives after that age.

Marital rape is not considered a crime under the Protection of Women from Domestic Violence Act of 2005, and women can ask for judicial separation from their husbands under the act. The marital rape exception in our laws infringes on Article 21’s essential rights of bodily integrity, bodily self-determination, right to good health, and right to privacy. Furthermore, because the current law does not offer them legal or social support to protect against marital rape, such bad legislation discourages spouses and prosecutors from speaking out against it.

 Lack of social, judicial, and economic support, as well as men not considering women on an equal footing and subsequently dominating their wives, are all factors that contribute to marital rape. Many women are stepping out now, becoming financially independent, but their lack of legal and social support discourages them from filing a complaint or bringing such situations to court.

LEGAL ISSUE

In another case, a Chhattisgarh High Court bench decided that “sexual intercourse or any sexual act with her by the husband would not constitute an offense of rape, even if it was forced or against her will.” As a result, the charge brought against the applicant’s husband under Section 376 of the IPC is erroneous and illegal.” Even though both judgments were issued in distinct jurisdictions, one in civil court and the other in criminal court, the Kerala high court supported the wife’s autonomy.

 The judge’s decision is an obiter dictum, in which the court states that because autonomy is now regarded as a part of privacy and is embedded as a fundamental right, why is marital rape, which breaches one’s bodily integrity and individual autonomy, still not sanctioned under Indian law? As a result, the legal rationale and current laws are inherently contradictory. In the past, the judiciary has refused an appeal to criminalise marital rape for women under the age of 15, stating that parliament will take up the issue and make a decision.

Later, the government argued that sanctioning it would jeopardise the institution of marriage’s integrity and that marriage should be protected. Is a marriage between two people protected when one of them loses his or her right to privacy, individual autonomy, and bodily integrity, which is a fundamental right under Article 21?

The bench in the case of State of Maharashtra v. Madhukar Narayan[1] held that every woman has a right to sexual privacy, and it is not permissible for anyone to violate that privacy whenever he wishes or pleases. As a result, the central government and judiciary must reconcile their reasoning and the law, providing justice to marital rape victims.

It is irrational to only punish marital rape for women under the age of 15 because, after that age, a woman loses her right to privacy, good health, and bodily integrity. In the name of safeguarding marriage, India’s current rape laws penalize and protect women from any form of rape other than marital rape. Is it a rape remedy to force victims to marry their rapists, and if not, why are wives forced to endure such brutal physical and sexual cruelty? It is irrational to only punish marital rape for women under the age of 15 because, after that age, a woman loses her right to privacy, good health, and bodily integrity.

In the name of safeguarding marriage, India’s current rape laws penalize and protect women from any form of rape other than marital rape. Is it a rape remedy to force victims to marry their rapists, and if not, why are wives forced to endure such brutal physical and sexual cruelty? According to a Kerala high court decision, marital rape is considered physical and emotional cruelty, but it is not confined to cruelty because it also violates a fundamental right. As a result, rape by a husband must be treated as seriously as rape by a stranger. As a result, it should be treated as a crime, with the spouse facing propositional punishment.

FUNDAMENTALS OF AMENDING SECTION 375

The addition of exception ii to section 375 will broaden the reach of martial law, raise public awareness, and deter many husbands from raping their wives by approving marital rape. Because there is no legal protection against marital rape under current legislation, it violates Article 14 of the wives’ constitution. Because section 375, exception ii, does not fall under the definition of “just, fair, and reasonable,” it is unconstitutional and must be abolished. Changing the legislation will not eliminate marital rape, but it will raise public knowledge about the issue, protect women’s autonomy and right to privacy, and encourage people to openly discuss such topics.

A law does not eliminate anomalies from society, but it does provide protection against immorality and injustice, therefore penalizing marital rape will provide hope for ending unfairness that has existed since the dawn of civilization.

Article 14 of the Indian Constitution states, “The State shall not refuse to any individual within the jurisdiction of India equality under the law or equal protection.” Even though the Indian Constitution guarantees everyone’s equality, Indian criminal law discriminates against women who have been raped by their husbands.

When the IPC was founded in the 1860s, a married woman was not considered an independent legal entity. Rather, she was seen as her husband’s property. As a result, she lacked many of the rights that come with being an independent legal entity, such as the ability to bring a lawsuit against someone else under her name. The origins of this philosophy can be traced back to Victorian-era British colonial rule. During the nineteenth century, India was a British colony.

However, the times have changed. Husbands and wives now have separate and independent legal identities under India. All Indian laws were strongly influenced by English laws and Victorian conventions during this time period. The marital exemption in the IPC was drafted based on Victorian patriarchal norms that did not see men and women as equals, did not enable married women to own property, and did not recognize men and women as equals. blended husband and wife identities under the “Doctrine of Coverture.” law, and much current jurisprudence is particularly focused on women’s protection.

This concern is reflected in the multiplicity of statutes enacted since the turn of the century to protect women from violence and harassment, such as “The Protection of Women from Domestic Violence Act” and “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act.”

VIOLATION OF ARTICLES 14 & 21 OF THE INDIAN CONSTITUTION

Insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment, Exception 2 violates Article 14’s right to equality. The Exception splits women into two types based upon their marital status, and it prevents men from serious offenses against their wives. As a result of the Exception, married women can be victimised solely due to various their marital statuses, but unmarried women are protected.

The distinction made between married and unmarried women in Exception 2 also violates Article 14 because the categorization produced has no reasonable relationship to the statute’s underlying aim. The Supreme Court stated in Budhan Choudhary v. State of Bihar[2]and State of West Bengal v. Anwar Ali Sarkar, that any classification made under Article 14 of the Indian Constitution is subject to a reasonableness test that can only be passed if the classification is rationally related to the goal of the act. Exception 2, on the other hand, undermines Section 375’s goal of protecting women and punishing those who commit rape. That purpose is undermined by exempting husbands from the punishment.

In recent years, courts have come to recognize that these broader rights to life and personal liberty include a right to abstain from sexual intercourse and to be free of unwanted sexual behaviour. The Supreme Court ruled in The State of Karnataka v. Krishnappa[3] that “sexual violence, apart from being a demeaning act, is an unlawful breach of a female’s right to privacy and sanctity.” Non-consensual sexual intercourse is considered physical and sexual violence, according to the same ruling. In Suchita Srivastava v. Chandigarh Administration[4], the Supreme Court linked the right to choose a sexual activity with the rights to individual liberty, dignity, morality, and bodily integrity under Article 21 of the Constitution.

In recent years, the Supreme Court has acknowledged a right to choose intimate partnerships in Article 21. In Justice K.S. Puttuswamy (Retd.) v. Union of India[5], the Supreme Court determined the right to privacy and the right of all citizens, holding that it includes “decisional confidentiality represented by an ability to make intimate decisions having additional of one’s sexual or conjugal nature and decisions in respect of intimate relations.” Forcible sexual cohabitation is a violation of that fundamental right. There is no disparity between the rights of marital and unmarried women in the preceding decisions, and there is no opposite finding stating that a marital relationship curtails a person’s right to privacy.

Exception 2 also infringes on Article 21’s right to a healthy and dignified life. As previously stated, the “right to life” envisioned in Article 21 is more than just a right to exist. For example, there is no question that every Indian citizen has a right to housing and that the administration is accountable for its residents’ health. Courts have repeatedly held that the “right to life” encompasses the right to live in dignity. Exception 2, on either hand, fails to deter husbands from engaging in acts of forced sexual intercourse with their wives, harming women’s physical and mental well-being as well as their capacity to work.

The concept of the right to life under Article 21 of the Constitution was stressed in the case of Francis Coralie Muin v. Union Territory of Delhi[6] In this case, Article 21 encompasses the right to live with human dignity and all that entails, to be specific, the necessities of life, such as adequate nutrition, clothing, and shelter over one’s head, as well as facilities for reading, writing, and expressing oneself in various forms, as well as the freedom to move about and mix and mingle with other people. The right to live with human dignity is one of the most basic components of the right to life, as it determines a person’s independence.

CONCLUSION

Even though the Constitution does not directly mention it, the right to significant self-assurance can also fall under the scope of Article 21. Such a right exists in the larger system of the right to life and personal liberty. The right to self-assurance is founded on the idea that the individual is the last authority in matters involving her or his body or money, and that the more private the decision, the more powerful the person’s privilege. They will be the primary architects of his fate, which will determine his reality. A lady’s sexual relationship is a standout amongst the most personal decisions she makes.

Rape in the bedroom is not completely outlawed in India. It is undeniably a genuine type of female mistreatment that requires the authorities’ attention. Because the consequences of marital rape are so severe, it is clear that criminalising the crime of marital rape is urgently needed. the state that previously valued non-interference in family circles.


[1] State of Maharashtra v. Madhukar Narayan AIR 1991 SC 207.

[2] Budhan Choudhary v. State of Bihar, 1955 SCR (1)1045.

[3] State of Karnataka v. Krishnappa, 2000 CriLJ 1793.

[4] In Suchita Srivastava v. Chandigarh Administration,. (2009) 9 SCC 1.

[5] Justice K.S. Puttuswamy (Retd.) v. Union of India, Writ Petition Civil No. 494 of 2012.

[6] Francis Coralie Muin v. Union Territory of Delhi, AIR (1981) SC 802.

Author: Utkarsh tiwari, University of Petroleum and Energy Studies, Dehradun

Editor: Kanishka VaishSenior Editor, LexLife India

RIGHT TO BE FORGOTTEN: A REMEDY TO CYBERBULLYING

 Reading time: 8 minutes

ABSTRACT

Cyberbullying leads to an extreme psychological breakdown of the victims that cause low self-esteem which in worse cases may lead to suicide. Hiding behind the screen people are hacking someone’s account, stalking, trolling, threatening victims, etc. Even though the bullies behind the screen are punished the victims are left with long-lasting fear and low self-esteem.  The victims are always afraid that new people will see their personal, misleading, and embracing information and judge them and cannot forget their past traumatic experiences. At this point they want all those information to just vanish from the internet and that’s when the Right to be Forgotten comes into the picture. It provides every individual with the right to erase inaccurate and misleading information from the internet. The research tried to elucidate how the Right to be Forgotten can act as a remedy to victims of cyberbullying.

INTRODUCTION

According to the UNICEF “Cyberbullying is bullying with the use of digital technologies. It can take place on social media, messaging platforms, gaming platforms, and mobile phones. It is repeated behavior, aimed at scaring, angering, or shaming those who are targeted. Examples include: spreading lies about or posting embarrassing photos or videos of someone on social media; sending hurtful, abusive, or threatening messages, images or videos via messaging platforms; impersonating someone and sending mean messages to others on their behalf or through fake accounts.”[1] It is disappointing that we come across incidents mentioned above in news and around us daily. It is the younger generation who uses social media platforms more often and are very concerned about people’s opinions regarding them so they are prone to cyberbullying. In this research while considering impacts of cyberbullying we are focusing more on how it impacts our younger generation.

Many individuals have been subject to cyberbullying and their personal, misleading, embarrassing information went viral and left a huge scar on their social media accounts. The Right to be Forgotten gives way to victims to erase all those deep scars caused by cyberbullying and public shaming. It is disappointing that in India we don’t have any law regarding the Right to be Forgotten but the judgments of the various high courts which rule it right now.  But the encouraging thing is it is one of the provisions Personal Data Protection Bill, 2019 and if approved will become a statutory right.

In this research article, we try to understand how cyberbullying is a big threat and impacts people and how it leads to violation of the constitutional rights, and how it is not something that can be ignored.  Further we discuss how right to be forgotten can act as a remedy to cyberbullying and how and when it was introduced and how it has developed through all these years in India by case laws.

CYBERBULLYING: A THREAT TO INDIA’S YOUNG GENERATION

According to the recent report of Comparitech (a UK-based firm) “India is a land of cyberbullies- the country has recorded the highest rate of children falling victim to cyberbullying”.[2]

There is no age disparity when it comes to cyberbullying but the youngsters are very concerned about other people’s opinions about them and hence more prone to it. The major form of bullying that teenagers face is of trolling about their appearance. Recently due to pandemic the online presence of children has increased more and so is the cyberbullying on all social media platforms. According to Statista research “children spent around 20% more time on social media sites due to the pandemic”[3] and according to another study by L1GHT, “online toxicity and cyberbullying on social media sites and video conferencing apps increased by up to 70%  due to the pandemic”[4].

A lot of teens never open up their parents or any adults as such about their mental status or what kind of pain they are in because of bullying they face and just wait for help to come to them. And when that help does not come, they fall into depression. And at times, when they open up, parents don’t take it seriously and even if they do, they are afraid to file police complaints due to the common syndrome in India ‘log kya kahenge’.

To make things worse only a few legal actions are available against cyberbullying. The bully walks free with very few punishments after the tremendous damage he/she has committed. The strong increase in cyberbullying cases every year shows how necessary it is for government to update laws and provide required punishments to the perpetrator. 

NOT SOMETHING TO JUST SURVIVE AND EXIST

 If to bully someone online is easy then surviving through bullying should be easy too. But that is not the reality.

A case in our capital was registered regarding cyberbullying, Students of Class 11 started a group called ‘BOIS Locker’ on a social media platform. The admin of the group was just a 18 year old and some of the members were even 15 years old. They started sending obscene images and messages of their own classmates. [5] the incident shook the entire nation and both created widespread fear among all teenagers and their parents.

Another such case was seen and registered in Kerala. An 18-year-old college girl from a poor family was selling fish to pay for her studies. This selling of fish by her created widespread trolling. Due to this trolling and bullying she faced a lot of problems.[6] People are taking advantage of the fact that they are behind the screen using fake id and thinking nobody would be able to catch them.

Nowadays many youngsters especially are harming their exes by uploading explicit images and abusive contents, the term used for this is revenge pornography. The major threat in it is bully uses the morphed photos of victims and harass them and blackmails them to do unimaginable things. Due to the fear of facing the family and the society, the victim initially suffers silently but one day getting tired of this bullying, the victim chooses to end their own lives.

So, as we can see Cyberbullying is not something in which we should encourage victims to suffer and survive silently. Stricter punishments and stricter laws need to be implemented in order to curb these and should privacy of victim who has been affected needs to be protected.

VIOLATION OF THE CONSTITUTIONAL RIGHTS

Each and every citizen has Right to Health provided under Article 21 of the Constitution which includes mental wellbeing as well. Cyberbullying leads to increased anxiety and stress, mental health issues, depression, acting out violently, and low self-worth. Cyberbullying also at times results in long-lasting emotional effects. According to psychologists, “Behavioural and mental changes are not the only effects, there can be physical effects also. Intense feelings of stress and anxiety due to cyberbullying results into physical issues such as insomnia, gastrointestinal issues, and harmful eating patterns”.[7] In worst cases victims commit suicide, According to Journal of Medical Internet Research “Children and young people under 25 who are victims of cyberbullying are more than twice as likely to self-harm and enact suicidal behaviour”.

As above mentioned, the way cyberbullying affects victims’ mental health it is no less than a serious crime. Leaking someone’s private information on internet and spreading defaming comments amounts to set of crimes. Every person has right to privacy and right to health and cyberbullying violates both of them.

HOW RIGHT TO BE FORGOTTEN CAN HELP?

People who experience a huge scam and bullying physically often feel like running somewhere and escaping from this scar of their history. The same goes with the victim of Cyberbully they also want those bullying information to vanish and disappear from internet and social media platforms. Many people are victimized as their personal information was made public and it went viral. Though we can’t reduce the agony through which they suffered but by removing those trolled comments or those defaming statements amounts them we can at least make sure that they don’t keep on suffering in the future also. The right to be forgotten is provides that vanishing power to the victims of cyberbullying. Though the removal of data depends upon the way it is affecting the victim’s public life and the nature and seriousness of the subject. The Right to be Forgotten gives a way to the victim to erase all those deep scars caused by cyberbullying and public shaming.

TRACING THE INCEPTION OF RIGHT TO BE FORGOTTEN

“The concept of such right can be traced all the way back to French Law which recognizes ‘le droit a l’oubli’ roughly translated into the right of oblivion”[8]. This right was for a convicted person who had served his time and been rehabilitated to stop publication of the facts of his conviction and incarceration.

The right was first recognized in modern times by the Data Protection Directive, 1995 of the European Union. In the said directive, an individual was allowed to put in request to the authorities to delete certain information regarding them from internet because of the incomplete or inaccurate nature of information.

The right to be forgotten first came into limelight in the landmark case of ‘Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González’ almost two decades later. The Court of Justice of the European Union (hereafter referred to as ‘CJEU’) held that “the EU citizens possess the right to be forgotten and established that personal privacy outweighed the interest in free data flow in the European Union”[9]. It was because of this decision that the said right to be forgotten found its way paved into the GDP Regulations, 2016. In the above case Mr. Costeja claimed two reliefs, “the first one against the local Spanish newspaper requesting the deletion or alteration of such article and the second one being against Google Spain SL and Google Inc. to remove or conceal the personal data relating to him so that such data ceases to be a part of the search results and cannot be connected to the article of the newspaper.”[10] The justification behind claiming such reliefs were that the proceedings against him had been resolved and he had paid his liability in full years ago, and for such information to be still available to the public, did not make any sense, and i.e., was entirely irrelevant. The regulatory authority, sustained Mr. Costeja’s claims regarding Google Inc. and Google Spain SL, as it considered that in this regard “operators of search engines are subject to data protection legislation given that they carry out data processing for which they are responsible and act as intermediaries”[11]. The ‘Google Inc.’ along with ‘Google Spain’ approached the CJEU, the question raised before court was “what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users differently.”[12] The CJEU, held in “the affirmative that the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. However, certain qualifications were mentioned before the exercise of such right to be forgotten of a citizen, which the court said stems from the right to privacy and the application of such a right was made subject to the condition that if the processing of personal data will be incompatible with the concerned Directive, then it may be recalled.”[13] Hence, The Google Spain judgment was a changing point wherein the ECJ held that “right to be forgotten was a facet of right to privacy”.

THE DEVELOPMENT OF RIGHT TO BE FORGOTTEN IN INDIA

In the Supreme Court ‘s landmark judgment ‘Justice K.S. Puttuswamy (Retd.) and Anr. v. Union of India’ [14]right to privacy was recognized and all aspects related to it were discussed. The judgment though recognized the existence of right to be forgotten as one of the ‘facets of the right to privacy’ but chose not to impose it as a separate fundamental right. Therefore, the right to be forgotten is left as ‘a matter of judicial interpretation’ by the High courts of India. Although there have not been many cases decided by Indian courts regarding this matter but in most of the cases the High courts have ruled in favour of right but the Gujarat High court in one case has ruled against it.

In the year 2016, in ‘Civil Writ Petition No. 9478’, the Kerala High Court “passed an interim order requiring Indian Kanoon to remove the name of a rape victim which was published on its website along with the two judgments rendered by the Kerala High Court in Writ petitions filed by her.” The High court in this case recognized the Petitioner’s ‘right to privacy and reputation’, without separately using ‘right to be forgotten’.[15]

The Gujarat High court conversely though, in 2017 in the case of ‘Dharamraj Bhanushankar Dave vs State of Gujarat, Special Civil Application No. 1854/2015[16], dismissed a petition seeking “permanent restraint on public exhibition of judgment and order on an online repository of judgments and indexing by Google”. According to the petitioner he had been acquitted of numerous offences by the High court and the sessions court and the ‘judgement in question was class as unreportable’. The High court dismissed the petition on the following ground that “the petitioner was not able to point out any provisions in law that posed a threat to his right to life and liberty, and that publication on a website did not amount to ‘reporting’ of a judgment since it is not a law report[17]”.

However, the Delhi High Court in the ‘Zulfiqar Ahman Khan vs M/S Quintillion Business Media Pvt. Ltd. & Ors., CS(OS) 642/2018[18], upheld a person’s right to be forgotten. Plaintiff in this case approached the High court “seeking a permanent injunction against the Defendants, who had written two articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign[19].” Although the Defendants had agreed to take down the news articles, the same had been republished by other websites in the interim. The court recognized the Plaintiff’s Right to privacy, of which the `Right to be forgotten’ and the `Right to be left alone’ are integral aspects, and directed that any republication of the content of the originally impugned articles or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit[20].”

The Odisha High Court in the Subhranshu Rout v. State of Odisha, BLAPL No.4592/2020[21]case of 2020, gave a thorough examination of one’s right to be forgotten in any context. In the above case, the High court was deciding a ‘bail application under section 439 of Cr.P.C’, wherein the Petitioner, who was the accused in the FIR, had released certain objectionable images of the complainant on Facebook against her will. The court examined the Right to be Forgotten as a remedy to victims of obscene images or films frequently shared on social media platforms by lovers to harass and blackmail innocent girls. The Court relied on cases decided in the EU regarding the issue of right to be forgotten. Remarkably, the High court commented that “it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased every single time, regarding data which is within the control of data controllers such as Facebook or Twitter or any other social media platforms[22].” It also recognized that in the absence of clear legislation, it is difficult to adjudicate on the practical limitations and technological nuances.

One of the most recent cases recognizing the Right to be Forgotten is Delhi High court’s ‘Jorawar Singh Mundy vs Union of India[23]. The petitioner Jorawar Singh Mundy, was an American citizen by birth but of Indian origin, who was charged in a narcotics case in 2009 while visiting India but was cleared by both the trial and the Delhi High Court. Mundy later on, returned to the U.S.A and studied law and every time an employer would do a background check using google. It led employers to this judgement. Thus, he requested that three websites, ‘Google, Indian Kanoon, and vLex’, remove the judgments. ‘vLex’ removed it while the case was going on. On the other hand, the Delhi High Court noted “the irreparable harm that it may have done to Mundy’s social life and career prospects, even though he was ultimately acquitted, and gave him interim protection”. The judgment was ordered to be removed from Google’s search results, and India Kanoon was ordered to block the judgment from being accessed through using search engines such as Google and Yahoo.

The encouraging news is the Ministry of Law and Justice, on ‘recommendations of Justice B.N. Srikrishna Committee’, has included the Right to be forgotten, as a statutory right in Personal Data Protection Bill, 2019, and it is already tabled in parliament.

CONCLUSION

The article majorly dealt with how cyberbullying affects people, especially the younger generation and how the Right to be Forgotten can be its remedy. Cyberbullying leaves a long-lasting impact on the mind of victim and new more stringent laws and rules needs to be made to punish those bullies behind the screen. The Right to be Forgotten has vanishing power and acts as the victim’s soothing medicine. It cannot reduce the trauma and sufferings victims had to go through because of cyberbullying but can make sure that their scars are not rejuvenated in future. It can help victims a lot especially women whose modesty is ruined by some morphed obscene images posted on social media platforms but at the same time, we need to make sure not to make it blanket to all the people. Let us hope that our parliament very soon approves of the Right to be Forgotten and suffering of victims of cyberbullying can be reduced.

REFRENCES

  1. “Anti-Cyber Bullying Laws In India – An Analysis – Criminal Law – India.” Accessed February 21, 2022. https://www.mondaq.com/india/crime/989624/anti-cyber-bullying-laws-in-india–an-analysis.
  2. Aswani, Nikhil. “THE RIGHT TO BE FORGOTTEN AND ITS ENFORCEMENT IN INDIA” 6, no. 3 (2020): 17.
  3. Bose, Abanti. “Right to Be Forgotten and the Constitutional Dilemma.” IPleaders (blog), August 15, 2021. https://blog.ipleaders.in/right-forgotten-constitutional-dilemma/.
  4. Cook, Lyndsay. “The Right to Be Forgotten: A Step in the Right Direction for Cyberspace Law and Policy.” The Internet 6 (2015): 12.
  5. The Times of India. “Cyber Harassment Cases See Upswing in Pandemic,” January 12, 2022. https://timesofindia.indiatimes.com/city/mumbai/cyber-harassment-cases-see-upswing-in-pandemic/articleshow/88842765.cms.
  6. “Cyber Harassment Cases See Upswing In Pandemic | Mumbai News – Times of India.” Accessed February 21, 2022. https://timesofindia.indiatimes.com/city/mumbai/cyber-harassment-cases-see-upswing-in-pandemic/articleshow/88842765.cms.
  7. “Cyberbullying and Its Effects on Teen Suicide – CALR.” Accessed February 21, 2022. https://calr.in/cyberbullying-and-its-effects-on-teen-suicide/.
  8. Comparitech. “Cyberbullying Statistics and Facts for 2022.” Accessed February 20, 2022. https://www.comparitech.com/internet-providers/cyberbullying-statistics/.
  9. “Cyberbullying Statistics and Facts for 2022 | Comparitech.” Accessed February 21, 2022. https://www.comparitech.com/internet-providers/cyberbullying-statistics/.
  10. “Cyberbullying: What Is It and How to Stop It.” Accessed February 21, 2022. https://www.unicef.org/end-violence/how-to-stop-cyberbullying.
  11. The Indian Express. “Indian Kids Are the Most Cyberbullied in the World: Study,” October 26, 2018. https://indianexpress.com/article/lifestyle/life-style/indian-kids-most-cyberbullied-5419510/.
  12. Kelly, Michael, and David Satola. “The Right to Be Forgotten.” University of Illinois Law Review 2017 (January 1, 2017): 1–64.
  13. Khatwani, Naman. “THE RIGHT TO BE FORGOTTEN; INCORPORATION IN INDIA,” n.d., 11.
  14. Singh, Ajay Pal, and Rahil Setia. “RIGHT TO BE FORGOTTEN- RECOGINTION, LEGISLATION AND ACCEPTANCE IN INTERNATIONAL AND DOMESTIC DOMAIN” 6, no. 2 (n.d.): 20.
  15. “The Right to Be Forgotten.” Accessed February 21, 2022. https://legalserviceindia.com/legal/article-5935-the-right-to-be-forgotten.html.
  16. “The Right To Be Forgotten – Privacy – India.” Accessed February 20, 2022. https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten.
  17. Lexlife India. “THE SIGNIFICANCE OF RIGHT TO BE FORGOTTEN AT CONTEMPORARY TIMES,” February 23, 2021. https://lexlife.in/2021/02/23/the-significance-of-right-to-be-forgotten-at-contemporary-times/.
  18. RFMLR. “VOLUME 5 ISSUE 1.” Accessed February 20, 2022. https://www.rfmlr.com/volume-5-issue-1.
  19. ScienceDaily. “Young Victims of Cyberbullying Twice as Likely to Attempt Suicide and Self-Harm, Study Finds.” Accessed February 21, 2022. https://www.sciencedaily.com/releases/2018/04/180419130923.htm.

[1] Unicef.org, https://www.unicef.org/end-violence/how-to-stop-cyberbullying ( Last visited on 20 February, 2022).

[2] Comparitech, “Cyberbullying facts and statistics for 2018 – 2022” (January,2022).

[3] Ibid

[4] Ibid

[5] Archana Sharma vs State of Nct of Delhi & Ors, WP(CRL) 3202/2020 & C.M. 11128/2020.

 

[7] Kapersky, https://usa.kaspersky.com/resource-center/preemptive-safety/cyberbullying-effects , (Last visited on 20 February, 2022)

[8] The Law Brigade, https://thelawbrigade.com/wp-content/uploads/2020/05/Nikhil-IJLDAI.pdf  (Last visited at 20 Feb, 2022).

[9] Google Spain SL v. Agencia Espafiola de Proteccion de Datos (AEPD) 2014 E.C.R. 317.

[10] Ibid

[11]Ibid

[12]Ibid

[13]Ibid

[14] Justice K.S. Puttaswamy (Retd.), (2017) 10 SCC 1.

[15] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[16] Dharamraj Bhanushankar Dave v. State of Gujarat & Ors 2015 SCC Online Guj 2019.

[17] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[18] Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132.

[19] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[20] Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132.

[21] Subhranshu Rout @ Gugul v. State of Odisha [BLAPL No. 4592 of 2020], High Court of Orissa, decided on 23 November 2020.

[22] Subhranshu Rout @ Gugul v. State of Odisha [BLAPL No. 4592 of 2020], High Court of Orissa, decided on 23 November 2020.

[23] Jorawar Singh Mundy vs Union of India, W.P.(C) 3918/2021 & CM APPL. 19941/202.

Author: Urmi Shah, Gujarat National Law University 

Editor: Kanishka VaishSenior Editor, LexLife India

RESERVATION IN PROMOTION TO SCs AND STs: A SUPREME COURT VERDICT

Reading time : 6 minutes

INTRODUCTION

Reservation is a form of affirmative action in Indian law in which a percentage of seats in the public sector, union and state government departments, union and state civil services, and public and private educational institutions are reserved for socially and educationally backward communities, as well as Scheduled Castes and Scheduled Tribes that are underrepresented in these services and institutions.

The under-representation of identifiable groups as a consequence of the Indian caste system is the underpinning reason behind the state’s provision of reservation. Following India’s independence, the Indian Constitution designated several formerly oppressed communities as Scheduled Castes (SC) and Scheduled Tribes (ST).SCs and STs had long been oppressed and denied equal opportunity in Indian society as a consequence of caste system according to the Constitution’s authors, and hence were underrepresented in nation-building operations. Thus the system of reservation was introduced.

Even before independence, India had a reservation system in place. After independence, the Constituent Assembly, led by Dr. BR Ambedkar, devised the reservation system.It was first launched for a ten-year period. After a ten-year period, Indian legislators saw the need to keep the reservation system in place to address many years of societal and cultural prejudice against specific groups of people.

Reservations were established in India:

To correct past and historical injustices against India’s backward classes, to guarantee that individuals from all castes are represented equally in state and federal government functions, to give an equal platform for all, regardless of caste and to promote and progress the backward classes.

Several adjustments have been made to the law regarding reservations in promotions. In regards of public employment, India’s Constitution offers equal opportunity to its citizens under Article 16. This principle is stated in Article 16(1) as follows:

“In concerns of public employment, equality of opportunity- (1) in matters pertaining to employment or appointment to any position under the State, all citizens shall have equal opportunity”. With respect to reservation in promotion, Article 16 clauses 4 and 4A deal with reservation and reservation in promotional issues, respectively.

Article 16(4A) empowers the state to enact any law relating to SC/ST reservations in promotion. Article 16(4B) states that unfulfilled reserved promotion positions for SC/STs can be carried over to the next year. Article 16 (4B) further assures that the reservation quota ceiling for these carried forward empty jobs — set at 50% by Indra Sawhney — does not apply to succeeding years. These are further discussed in detail.

BACKGROUND: MAJOR MOVES AND VERDICTS THAT CHANGED THE SCENARIO

The policy of seats reservation in terms of promotion for the communities of SCs and STs communities has been followed by the central as well as the state government since 1950s, reason being the non-adequate representation of these communities at the decision making level in the public services. Relating to the same issue a landmark judgment was pronounced in case of ‘IndraSawhney v. Union of India’ by the Supreme Court of India in 1992.

1992: Indra Sawhney v. Union of India

In this landmark case also popularly known as ‘The Mandal Judgment’, the honorable Supreme Court through its nine judge bench provided that the constitution in its Article 16(4) does not provide for the reservation in promotion and is limited only to the reservation in appointment. The court through this judgment had put all the reservation in promotion to SCs and STs in public employment at risk. While taking this into account, the court gave a buffer period of five years post November 16th 1992 to continue the reservation in promotion. This buffer period was granted to them so that they can take appropriate measures to implement the order given in the IndraSawney case.

The Supreme Court in this case upheld the reservation limit of 25% as recommended by the Mandal Commission for the backward classes, while making it clear that the combined quota for the Scheduled Caste, Scheduled Tribe and beneficiaries if backward class should not exceed the limit of 50% of the population of India. Government notification of reservation of 10% in the government jobs for the people of Economically Backward Classes was also struck down by the Supreme Court in 1992 while clarifying that according to Article 16(4) backward classes can be identified not only on the economic basis but also on the basis of caste.

The court made it clear that the reservation limit shall not exceed 50% and the same should be followed every year. However an exception can be given to the people from the remote and far flung areas because of their peculiar condition. However this all should be done with extreme caution. Although the “carry forward rule is valid” but is subject to the limit of 50%.

1995: 77th Amendment Act

The facility of reservation have been enjoying by SCs and STs to some extent since 1955. However in case of IndraSawhney& Others v. Union of India & Others, Supreme Court observed that reservation under Article 16(4) has been restricted to initial appointment and cannot go to the extent of reservation in promotion which could hamper the interest of the Scheduled Caste and Scheduled Tribe because of their lack of representation in the same. Thus to protect the interest of these communities,the government continued the policy of providing reservation in promotion. However, in order to carry out this policy, Article 16 of the constitution was amended, and a new clause (4A) was added to the article.Thus the Constitution 77th Amendment Act, 1955 by adding clause (4A) to Article 16 specified that, “Nothing in this article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes or posts in the services under the state in favor of SCs and STs which, in the opinion of the state, are not adequately represented in the services under the state”.

1996: Introduction of ‘Catch up Rule”

 After the constitutional recognition of reservation in promotion, a situation arose where the candidate of reserved category who were promoted over their general category counterparts, became senior to them because of getting earlier promotion. This anomaly was put forward through two judgments in case of Virpal Singh (1995) and Ajit Singh (1996) which led to the introduction of the ‘Catch up Rule’. The rule laid down that the candidates who got promoted after their SCs and STs Counterparts have the possibility to regain their seniority.

2000: 81st Amendment Act

Reserved vacancies prior to August 29, 1997 for SCs and STs which were not filled up through direct recruitment because the candidates belonged to the community were not available, were treated as “Backlog Vacancies”. These “Backlog vacancies were excluded from the 50% reservation limit and were considered a distinct group.

In IndraSawhney v. Union of India case, the Supreme Court gave a judgment that total vacancies including the number of vacancies that are to be filled in a year through reservation as well as the vacancies that were carried forward should not exceed 50% in any scenario. Because, total reservation including that for SC, ST and OBCs together had reached the forty nine and a half percent and as per the rule total vacancies could not cross the ceiling of fifty percent, it became tough to fill the ‘Backlog vacancies’ and to conduct the special recruitment drives. Hence an official Memorandum was issued dated August 29, 1997 which discontinued the special recruitment drives and applied the fifty percent limit to the current as well as to the ‘Backlog vacancies’. Because of the adverse effect of the above mentioned order of August 29, 1997, organizations like Member of Parliament put forward the request to protect the interest of Scheduled Caste and Scheduled Tribe in front of the central government.

After reviewing the position, the government decided to make an amendment in the constitution, to make the unfilled vacancies of a year that are reserved to get filled in that year according to reservation under clause (4) or clause (4A) of Article16 shall not be considered together with the vacancies of that year for the 50% ceiling limit and shall be considered as a different class of vacancies that are to be filled in any succeeding year or years. This amendment would restore the position that was in force before 29 August 1997.

Hence in Article16 of the Constitution, for clause (4A), the clause (4B) had been inserted to separate the vacancies of a particular year reserved for SC/ST for that particular year from the previous list of unfilled vacancies to reach the 50% quota of that respective year.

2000: 82nd Amendment Act

The facility of relaxation of qualifying marks and standards of evaluation has been enjoyed by the people of SC & ST community in matters related to reservation in promotion. However, the Supreme Court ruled that these relaxations in areas of reservation in promotion were unconstitutional under Article 16(4) of the Constitution and the requirement provided in Article 335 in both S. Vinod Kumar v. Union of India case and also in Indira Sawhney& Others v. Union of India & Others. Thus the Supreme Court put forward to withdraw these relaxations with effect from 22.07.1997.

But due to the adverse effect on the interest of Scheduled Caste and Scheduled Tribes due to the order dated 22.07.1997, the government had received various representation to review the position once again, considering the same the government decided to move for a constitutional amendment to restore the relaxations withdrawn earlier.

Hence through this amendment, government inserted a proviso in Article 335, that provided that nothing in Article 335 shall prevent the state from making any provisions favoring members of SC & ST community for relaxation in qualifying marks in aspect of examination/job/promotion.

2001: 85th Amendment Act

The 85th Amendment Act of 2001 was put forward to extend the reservation benefit in the favor of Scheduled Castes and Scheduled Tribes in matters related to promotions with “consequential seniority. The amendment has substituted the words of clause (4A) of Article 16 of the Constitution from the words, “in matters of promotion to any class” to the words “in matters of promotion, with consequential seniority, to any class”. It was also made necessary to apply the proposed consequential amendment made to Article 16(4A) with retrospective effect from 17th June, 1995 i.e. the date from which Article 16(4A) came into force.

2006: Nagaraj v. Union of India

The court in 2006 case of M. Nagaraj v. Union of India made it clear in its judgment to grant validation to parliament’s decision to extend the reservation for Scheduled Caste and Scheduled Tribes in matters of promotion as well. Although the court had specifically put forward few requirements to be fulfilled before granting reservation, thus making it difficult for the central and state government to take the decision of granting reservation.

In the case of M Nagaraj v. Union of India specifically the three controlling conditions were laid down by the Supreme Court which were necessary for the states to fulfill before granting reservation in promotion to any person belonging to SC and ST community.

The three conditions were:-

  • Quantifiable evidence of SC and ST backwardness

It was made necessary for the states to show the backwardness of a class by the states before granting them any reservation.

  • Proof of Inadequate representation

The state must show that ‘the class’ does not got adequately representation in the position or service for which the reservation in promotion is demanded.

  • A justification for maintaining administrative efficiency

The final requirement was to show that granting reservation is in the interest of administrative efficiency.

The Constitutional bench in this case also gave validation to all the earlier constitutional amendments made by the parliament consisting of 77th, 81th, 82nd and 85th constitutional amendments.

2018: Jarnail Singh v. LacchmiNarain Gupta

This case is popularly known as ‘Reservation in Promotion’ case. The verdict on this case was given by Supreme Court on September 26th 2018. A five judge bench of the Supreme Court having former Chief Justice of India DipakMisra, Justice RF Nariman, Justice InduMalhotra, Justice SK Kaul, Justice Kurian Joseph gave a review to the judgment of the previous case that dealt with providing reservation to the community of SC & ST in matters of promotion in public services and government jobs. This case also gave due consideration to the application of the ‘creamy layer’ aspect in terms of reservation in promotion to the SC & ST community. This ‘creamy layer’ aspect holds a great importance because it is an economic criteria in which an assumption is made that a person is no longer backward because he is doing well economically and is leading towards social advancements. Because of this progressive economic and social standard, many people consider this concept of ‘creamy layer’ as ‘caste discrimination’.

The decision made by the court in its earlier case of M Nagarj v. Union of India was challenged on different grounds by various states as well as the centre. It was said that the judgment in Nagraj case made it difficult for the centre and state to grant reservation in promotion. Hence it was demanded to refer the case to a seven judge bench. Various amendments and observations were made in this case, the constitutional validity of which was challenged and finally a petition to review the Nagaraj verdict was filed.

Issues that were raised were whether it was necessary to reconsider the Nagaraj judgment by a 7 judge bench? Is it necessary for the states to collect the quantifiable data to give a proof for the backwardness of the class? Whether the concept of creamy layer should be applied amongst the SC & ST community to limit them from getting reservation in promotion?

The Supreme Court in its judgment concluded that there is no need to refer the case of Nagaraj to a seven judge bench. It also held that the demand to prove the backwardness of SC and ST by collecting quantifiable data is in contradiction to what was held in the case of IndraSawhney v. Union of India. On one hand the court struck down the backwardness criteria while on the other hand introducing the principle of creamy layer expulsion. It was held that the expulsion of creamy layer extends to SCs &STs; hence state should refrain from granting reservation in promotion to those SCs and STs persons who come in the creamy layer category of the community.

BK Pavitra v. Union of India

This case happened because of a bunch of writ petitions that challenged the validity of the “Karnataka Extension of Consequential Seniority to Government servants promoted on the basis of reservation (To the post of civil service of the state) Act 2018”.This act was beneficial for the persons who got promotion under the policy of reservation of the state in Karnataka as it provided them with consequential seniority. Consequential seniority is a rule under which the candidates of the reserved category who got the earlier promotion as compared to their general category counterpart are allowed to retain their seniority over the candidate of general category for the subsequent promotions.The “Karnataka Determination of Seniority of Government Servants on the Basis of the Reservation (to Posts in the Civil Services of the state) Act 2002” came before the Reservation Act of 2018. BK Pavitra case also known as ‘BK Pavitra I’ case challenged the Reservation Act 2002 on the grounds of constitutional validity.A two-judge panel found that Sections 3 and 4 of the Reservation Act 2002 are in violation of Articles 14 and 16 of the Indian Constitution in this case. The Supreme Court also held the act invalid in another case of M Nagaraj v. Union of India.The legislature of the state of Karnataka, on the other hand, enacted the Reservation Act in 2018.The petitioners in this case, BK Pavitra and others v Union of India and others, commonly known as BK Pavitra II, claimed that the state legislature had essentially re-enacted the original Act without correcting the flaws. The petitioners questioned the method as well as the conclusion of the State’s search for collective measurable data in order to implement the Reservation Act 2018.Following the invalidation of the Reservation Act of 2002, the State of Karnataka established the RatnaPrabha Committee to present a quantitative assessment based on the three conditions set by the Court in the Nagraj case. And, based on the RatnaPrabha Committee’s findings, Karnataka approved the Reservation Act of 2018.The fundamental issue or question in this case was whether the Reservation Act of 2018 overruled the legislative instructions issued in the matter of BK Pavitra I. To determine whether the Reservation Act of 2018 is constitutional, the Court must determine whether it breaches Articles 14 and 16 of the Constitution. This was not, according to the Court, a legislative overruling.Another question was whether the Reservation Act of 2018 followed the Nagraj decision? In this context, the Court required to review the RatnaPrabha Committee’s reports. The Court began by examining the RatnaPrabha Committee’s findings and determining whether the parameters were adequately examined. The RatnaPrabha Committee’s technique has not been deemed unfamiliar or unusual, according to the Court.As a result, the Court noted that they were unable to determine that the Committee’s report was based on any extraneous or irrelevant information. The Act of 2018 also upheld the consequential seniority for SCs and STs.The idea of the creamy layer, according to the Court, has no bearing on the award of consequential seniority.

CURRENT SITUATION

Recently the Supreme Court gave its judgment after discuss on a series of petitions from all over the country that demanded more clarity on the modalities of providing reservation in case of promotion. The Supreme Court through its verdict denied laying down any “yardstick” to determine the inadequate representation of the members of the community of Scheduled Caste and Scheduled Tribes for reservation in promotion in case of government jobs.

Supreme Court in its ruling by a three judge bench, headed by Justice NageswaraRao mentioned the following points:-

Held ‘cadre’ as the unit for collection of data

Supreme Court in its verdict clarified that for granting promotion, it will hold ‘cadre’ as the unit for collecting quantifiable data and not class, group or the entire service. It reasoned it saying that if the data pertaining to the entire service would be taken, it would render the whole exercise of giving reservation in promotion meaningless.

Not to lay down any yardstick

The Supreme Court clarified that it will not lay down any yardstick for giving reservation in promotion to the SC and ST community or to determine their inadequacy of representation in promotion and the whole decision of whether to grant reservation or not would be left on the respective states.

Judgment in BK Pavitra case was set aside

By recognizing ‘cadre’ as the unit for collecting quantifiable data the court set aside the judgment it had given earlier in case of BK Pavitra and held that the decision of the court that approved collection of data on the basis of groups and not cadres is in contradiction of the law laid down in the earlier cases of Nagaraj and Jarnail Singh by the Supreme Court. The court also said that the judgment given by it in case of Nagaraj v. Union of India would have ‘prospective effect’.

Order of Review

The Supreme Court gave the responsibility to the union government to fix a ‘reasonable’ time for the states to conduct the review regarding the data for determining the inadequacy of reservation in promotion. Hence the court has left it on the states to determine if the representation of SCs & STs in promotional posts is inadequate or not by considering relevant factors.

VIEWS IN OPPOSITION OF RESERVATION IN PROMOTION

Effect on Efficiency: Promotions to SCs and STs throughout service and promotion appointments may make it harder to maintain administrative efficiency.

Not one of the Fundamental Rights: Reservation in promotion in public positions cannot be asserted as a fundamental right, according to the Supreme Court.

Reservation Redundancy: The SCs and STs benefit from reservation in their appointments with numerous servicers. As a result, quotas in promotions for critical positions are both unpleasant and inefficient.

 Not a necessity: The Constitution only allows the State to create reservations in areas of appointment and promotion in favor of the Scheduled Castes and Scheduled Tribes “where in the view of the State they are not properly represented in the State’s services.”

NEED FOR RESRVATION IN PROMOTIONS

  •  In a caste-based socioeconomic system, the SCs and STs have experienced centuries of discrimination and prejudice, which has created major barriers to opportunity.
  • The major reason for awarding upgrades in promotions is that there are very few SC/ST applicants in government positions at the higher levels.
  • The Constitution’s requirement for consideration of their claim to appointment would remain illusory unless specific procedures are introduced for SCs and STs in promotions as well.
  • The word “efficiency of administration” was not defined clearly in the Constitution by the founders.It is a prevalent misunderstanding that promotees selected from the SCs and STs are inefficient or that their appointment affects efficiency.

CONCLUSION

As a result, it is now established, that if a state wishes to provide reservation to members of the SCs and STs, it must first collect quantifiable data on the representation of SCs and STs in a specific cadre of a service and then form an opinion on the inadequacy of representation based on that data. Furthermore, regardless matter how difficult it may be, the state must determine the impact of reservation on administrative efficiency. The state may only justify its action of offering reservations in promotions if these requirements are met.

REFERENCES:

Author: Srishti Sachdeva, Hidayatullah National Law University

Editor: Kanishka VaishSenior Editor, LexLife India