Experts CornerSanjay Vashishtha

The recent invocation of Magnitsky law in the United States made headlines across India. A United States law firm, primarily known for their human rights activism and practice in the realm of international criminal law filed a formal submission to the Government of United States of America seeking targeted sanctions against Uttar Pradesh Chief Minister, for his alleged role in extra-judicial killings allegedly committed by the State’s police forces between 2017 and 2021. The submission, filed on 9-2-2022, with the Department of State and the US Department of the Treasury, also recommends sanctions against Om Prakash Singh, the recently retired Director General of the Police of U.P., and Sanjeev Tyagi, Superintendent of the Police of the district of Kanpur.[1]

 

In December 2021, the US Government also sanctioned Bangladesh’s elite police unit[2], the Rapid Action Battalion, along with seven former and current police and army officials which included the current head of the country’s police force, for their role in extra-judicial killings.[3]

 

What is Magnitsky law?

Sergei Magnitsky Act was passed in 2012 in US named after a Russian Accountant, Sergei Magnitsky who in 2009, was tortured, denied medical attention and was found dead in Moscow jail cell.[4] He was targeted by the Russian authorities for exposing a giant tax fraud scheme.[5] The law passed by the US imposed sanctions against such Russian officials who are believed to be responsible for human rights violations.[6]

 

Russia has published its own blacklist of Americans banned from entering the country in retaliation for Washington’s “Magnitsky list.”[7] The Russian Government further banned American adoption of Russian children.[8]

 

Four years after the adoption of the original Act, Congress enacted a new “Global Magnitsky Human Rights Accountability Act” (2016). This built upon and expanded the original 2012 Act (which was focussed solely on those alleged to have been involved in the death of Sergei Magnitsky) by authorising the US President to impose sanctions on any individual or entity responsible for committing human rights violations, or acts of significant corruption, anywhere in the world.

 

On 20-12-2017, the US President issued Executive Order 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse and Corruption.”[9] The order declares a “national emergency” with respect to “serious human rights” abuses and a broad range of corrupt acts that threaten “the stability of international political and economic systems” and “constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States”.[10]

 

EO 13818 in substantial part implements the Global Magnitsky Human Rights Accountability Act [Global Magnitsky Act (GMA)] a 2016 law that authorises the President to freeze certain property and restrict the entry into the United States of “foreign persons” that the President determines, “based on credible evidence”, are responsible for certain corrupt acts and human rights abuses committed wholly or substantially outside of the United States (the “Global Magnitsky Sanctions”).[11]

 

As the above description indicates, the Sergei Magnitsky Act, 2012 targets persons and places tied to specific events that occurred in one country.[12] Moreover, the Sergei Magnitsky Act can be read to have been adopted or operate as an alternative or last recourse for justice and accountability, following Congress findings that there was a denial of “any justice or legal remedies” to Mr Magnitsky by “all State bodies of the Russian Federation” and “impunity since his death of State officials”.[13]

 

Scope of the Act

 

The Global Magnitsky Human Rights Accountability Act, 2016 authorises the President to impose economic sanctions and block or revoke visas to restrict the entry of certain “foreign persons” identified as engaging in human rights abuse (such as extra-judicial killings, torture, or other gross violations of internationally recognised human rights).[14] The Act also authorises sanction against government officials or senior associates of government officials who are complicit in “acts of significant corruption”. Such sanctions can also take the form of freezing of assets for funds held in US banks.[15]

 

In order to ensure global accountability and protection of human rights, the Act enables the US executive branch to apply targeted sanctions on any individual involved in human rights violation, from senior officials to low-level officers and non-government associates.

 

When a person is sanctioned, any property owned by them in the United States or in the possession or control of US persons is “blocked and must be reported to” the Treasury’s Office of Foreign Assets Control (OFAC). It also prevents any person or entity in the United States from undertaking any financial transactions with these men. Sanctions could also involve a ban on travel to the US.

 

The Act authorises the President to terminate the application of sanctions if the President determines that the designee did not engage in the activity for which sanctions were imposed; has been prosecuted for the offence; or has changed his or her behaviour, “paid an appropriate consequence”, and is committed to not engaging in future sanctionable activity. The President may also terminate the imposition of sanctions if he finds it in the US national security interests to do so.[16]

 

In contrast to the Magnitsky Law of 2012, the Global Magnitsky Act contains no analogous congressional findings, nor does it expressly state or imply that it is a last or alternative resort where adequate legal processes to adjudicate corruption or human rights abuses are unavailable in foreign countries where relevant events took place or parties are located, or before foreign tribunals to which relevant States have submitted to jurisdiction. Instead, the Global Magnitsky Act’s default position is the applicability of US sanctions (supported by “credible evidence”) without the requirement of a jurisdictional nexus with the United States.[17] Accordingly, the Global Magnitsky Act asserts US universal jurisdiction over the corrupt acts and human rights abuses it targets.

 

Executive Order 13818

 

The year after its enactment, pursuant to the 2016 GMA, President Donald Trump issued Executive Order 13818, which declared that “the prevalence and severity of human rights abuse and corruption that have their source, in whole or in substantial part, outside the United States […] threaten the stability of international political and economic systems”. The order continued:

“Human rights abuse and corruption undermine the values that form an essential foundation of stable, secure, and functioning societies; have devastating impacts on individuals; weaken democratic institutions; degrade the rule of law; perpetuate violent conflicts; facilitate the activities of dangerous persons; and undermine economic markets. The United States seeks to impose tangible and significant consequences on those who commit serious human rights abuse or engage in corruption, as well as to protect the financial system of the United States from abuse by these same persons.

I therefore determine that serious human rights abuse and corruption around the world constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and I hereby declare a national emergency to deal with that threat.”

 

President Trump therefore authorised the Treasury Secretary to impose sanctions against, inter alia, any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General:

  • To be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse.
  • To be a current or former government official, or a person acting for or on behalf of such an official, who is responsible for or complicit in, or has directly or indirectly engaged in:
    • corruption, including the misappropriation of State assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery; or
    • the transfer or the facilitation of the transfer of the proceeds of corruption.

 

Pursuant to Executive Order 13818, the President imposed sanctions on 13 serious human rights abusers and corrupt actors (named in annex to the order), while the Treasury Department’s Office of Foreign Assets Control (OFAC), acting on behalf of the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, imposed sanctions on an additional 39 affiliated individuals and entities.[18]

 

Another important novelty with the GMA and Executive Order 13818 is the inclusion of civil society organisations in the naming process. The law requires the President’s administration to consider any information submitted by non-governmental organisations (NGOs). As Elisabeth Witchel has noted: “The point of engagement for NGOs is in providing recommendations for sanction targets, along with documented case material. The law states that credible information from human rights and corruption monitoring groups will be considered, and, according to one State Department official, they welcome and encourage collaboration by non-governmental organisations.”

 

Sanctions for covered human rights abuses and corrupt acts, civil and criminal penalties for sanctions violations

For human rights abuses and corrupt acts, the Global Magnitsky Act and EO 13818 authorise financial and immigration sanctions. The Global Magnitsky Sanctions largely target foreign government officials and private parties (natural and legal). However, some US persons are “foreign persons” under the Global Magnitsky Act and have sanctions exposure in connection with certain corrupt acts and human rights abuses. Moreover, all US persons, like their foreign counterparts, are sanctionable for providing material and other support to certain conduct and persons. US and foreign persons also face civil and criminal penalties for violating or evading sanctions.

 

Financial sanctions: Blocking of property and prohibition of transactions with or for the benefit of blocked persons

Financial sanctions entail the “blocking” or freezing of the property or “interests in property” of sanctioned persons that is in or comes within the United States or the possession or control of a US person, including US banks and their foreign branches, US branches of foreign bank and US businesses and individuals. The property of a “blocked” person (a “specially designated national” or “SDN”) must be frozen and may not, without approval, be transferred or otherwise transacted in. The “interests in property” of a blocked person is property owned 50% or more, directly or indirectly, by one or more blocked persons individually or in the aggregate.[19] Entities that are owned 50% or more by one or more blocked persons are also blocked, pursuant to the Treasury Department Office of Foreign Assets Control’s “50% rule”.

In addition, EO 13818 prohibits transactions with or for the benefit of sanctioned parties, specifically (1) “the making of any contribution or provision of funds, goods, or services by, or to, or for the benefit of any … (blocked person)”; and (2) “the receipt of any contribution or provision of funds, goods, or services from any such person”.[20]

 

US financial sanctions are uniquely powerful

The financial penalties imposed by the Global Magnitsky Sanctions (and other US sanctions programs) are powerful, as they effectively cut off sanctioned persons from the US financial system and, substantially, US dollar transactions. Given the size and centrality of the US financial system to international commerce and payments, persons without access to US banks and other constituent parts of the US financial system are largely shut out of the international financial system (this assumes, of course, effective enforcement and compliance by US authorities, banks and international financial system participants).[21]

Put in context, the United States’ Global Magnitsky Act and sanctions program are singular in their force. Other countries have adopted versions of a Magnitsky Act (including Canada, which has imposed sanctions under its law), but none of these other Magnitsky frameworks rival the potential sweep and impact of the United States’ Magnitsky framework.[22]

 

Immigration Sanctions

The Global Magnitsky Act and EO 13818 impose immigration sanctions that prohibit sanctioned persons from immigrant and non-immigrant entry into the United States.[23] The Global Magnitsky Act excepts from immigration sanctions persons whose admission to the United States would “further important law enforcement objectives” or is “necessary to permit” the United States to comply with obligations vis-à-vis the United Nations.[24] EO 13818 contains no such exception.

 

Civil and criminal penalties for sanctions evasion and violations or conspiracies to violate financial sanctions

EO 13818 prohibits transactions that, in effect or purpose, “evade or avoid …” or “violate …” the financial sanctions provisions, as well as conspiracies to violate “any of the [blocking] prohibitions set forth in” the order.[25]

 

In addition, the Global Magnitsky Act provides that persons who violate or attempt or conspire to violate sanctions authorised by the Act, or persons who “cause … a violation” of sanctions, are subject to civil and criminal penalties pursuant to the International Emergency Economic Powers Act (IEEPA).[26] Civil penalties under the IEEPA are up to $250,000 or twice the amount of a transaction that was the source of a violation.[27] The IEEPA’s criminal penalties attach to wilful violations and attempts or conspiracies to violate a relevant sanctions program, as well as the wilful aiding or abetting of such acts, punishable by fines of up to $1,000,000 and/or imprisonment for up to 20 years.[28]

“It remains to be seen how the current administration will enforce the Global Magnitsky Sanctions. For now, their existence alone is a powerful weapon in the administration’s arsenal, a reality that should be taken seriously—and for different purposes—by a wide range of foreign government and private parties.”

 

Who can recommend individuals for the President to sanction?

The Act allows the Assistant Secretary of State for democracy, human rights, and labour, in consultation with other State Department officials, to submit recommendations for people to be sanctioned to the Secretary of State. The Committee on Banking, Housing, and Urban Affairs and the Committee on Foreign Relations in the Senate and the Committee on Financial Services and the Committee on Foreign Affairs in the House can also submit names to the President. In determining whether to impose sanctions, the President can also review credible information obtained by other countries or non-governmental organisations that monitor human rights violations. In practice, the decision about whether to carry out the sanctions will most likely be made jointly by the State Department and Treasury Department.

 

How effective are sanctions from the Global Magnitsky Act?

Sanctions deny individuals entry into the US, allow the seizure of any of their property held in the country, and effectively prevent them from entering into transactions with large numbers of banks and companies. Both American firms and international firms with American subsidiaries run the risk of violating US sanctions if they do business with sanctioned people. The law’s impact is exemplified by the Russian official sanctioned by the Magnitsky Act who hired a Russian lawyer, Natalia Veselnitskaya, to advocate against the Act at the US Congress and help establish a non-profit organisation opposing the Act.

 

Designations

OFAC has publicly designated 107 individuals under EO 13818, with 105 currently active designations following two removals. In 2017, 15 individuals were designated, followed by 28 in 2018, 52 in 2019, and 12 in the Global Magnitsky Human Rights Accountability Act <https://crsreports.congress.gov> 2020 to date (see Table 1 below). Among active designations, 60 individuals are designated primarily for human rights abuse, 42 are designated primarily for corruption, and 3 are designated for both human rights abuse and corruption. Also currently designated are 105 entities—many due to their being owned or controlled by a designated individual. Countries with five or more individuals designated include Saudi Arabia (17 individuals), Uganda (11), Serbia (10), Burma (9), Iraq (8), South Sudan (8), China (7), and Cambodia (6). In some instances, the executive branch has designated numerous individuals in relation to one case of human right abuse or corruption (for example, see “Section 1263(d) and Jamal Khashoggi”)[29]. The Global Magnitsky Act requires the President to report to Congress annually, by December 10, on designations made over the previous year. According to the December 2019 report, the United States prioritises actions “that are expected to produce a tangible and significant impact on the sanctioned person and their affiliates, to prompt changes in behaviour or disrupt the activities of malign actors”.

 

Congressional Input on Designations

In making sanctions determinations, the law requires the President to consider information provided jointly by the Chairperson and Ranking Member of certain committees — Senate Banking and Foreign Relations, and House Financial Services and Foreign Affairs—as well as credible information obtained by foreign countries and non-governmental human rights organisations. A separate provision, Section 1263(d), requires the President to respond within 120 days to requests from the aforementioned committee leadership to determine whether a foreign person has engaged in sanctionable activity under the law and whether or not the President intends to impose sanctions.[30] When signing the Bill into law, however, President Barack Obama singled out this latter requirement as a challenge to constitutional separation of powers and indicated that he would “maintain [his] discretion to decline to act on such requests when appropriate”.

 

Other Sanction Authorities

Congress has enacted other broad sanctions authorities to target human rights abusers or individuals involved in other nefarious activities, as well as country-specific laws that aim to impose sanctions for these reasons. In addition, the President has used emergency authorities in the

National Education Association (NEA) and IEEPA to impose economic sanctions on individuals in certain countries.[31]

Section 212 of the Immigration and Nationality Act, 1952 (INA) similarly provides the Secretary of State with broad authority to impose entry denials. A recurring provision, Section 7031(c), in annual foreign operations appropriations requires the Secretary of State to deny visas to enter the United States to foreign officials and their immediate family members about whom the Secretary has credible information that the individual is “involved in significant corruption … or a gross violation of human rights”. In some cases, the executive branch has publicly sanctioned individuals both pursuant to this appropriations provision as well as under EO 13818 or other economic sanctions programs.[32]

 

Similar Legislations in Other Countries

Several European countries, Canada, and the European Parliament passed Bills imposing sanctions on Russian officials implicated in Sergei Magnitsky’s death. Recently, several countries have expanded their sanctions regimes to include human rights abusers from any country. On February 21, the United Kingdom passed its own version of the Global Magnitsky Act. Estonia passed a similar law in 2016. The Canadian Parliament and European Parliament are both considering Bills to target international human rights violators.

 

Other Western States are following America’s lead. In 2017, the UK passed its own Magnitsky law, the Criminal Finances Act, which allows authorities to recover proceeds of gross human rights abuses overseas that are housed in the UK. Likewise, in 2017 the Canadian Parliament passed the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).[33]

 

Estonia, Latvia and Lithuania have also implemented dozens of “Magnitsky sanctions,” a move Bryce Klehm has called “an extraordinarily symbolic move given their geographical proximity to Russia”.[34] Moreover, according to Bill Browder, several other countries appear ready to adopt Magnitsky laws, including Sweden, Ukraine and South Africa.[35] Browder reasons: “It is clear we have reached a tipping point, and getting France and Germany on board is next. These countries will tip the balance of getting an EU-wide Magnitsky Act. I do not expect the process to be easy, but we have accomplished so much more than I expected recently, that I think anything is possible now.”[36]

 

Canadian Magnitsky Law

In March 2015, the Parliament of Canada passed an initial motion towards passing such a law.[37] Canada’s Sergei Magnitsky Law, officially the Justice for Victims of Corrupt Foreign Officials Act, received royal assent and was passed into law on 18-10-2017.[38] The Act is regulated by the Justice for Victims of Corrupt Foreign Officials Regulations.[39]

 

On 29-11-2018, Canada amended the regulations to include 17 foreign nationals from Saudi Arabia, who were accused of being responsible for or complicit in gross violations of internationally recognised human rights, particularly the torture and extra-judicial killing of Saudi journalist Jamal Khashoggi.[40]

 

European Magnitsky Act

In March 2019, the European Parliament passed a Resolution 44770 in favour of passing a Magnitsky Act for the European Union.[41] In her September 2020 State of the European Union address, Ursula von der Leyen stated that one of the European Commission’s goals was passing a European Magnitsky Act.[42]

On 6-7-2020, United Kingdom’s Foreign Secretary Dominic Raab announced the first sanctions under a law similar to the Global Magnitsky Act, where 47 individuals came under travel restrictions and asset freezes. The regulations were meant to give the Government a power to impose sanctions on those involved in the worst human rights abuses around the world.[43]

 

American Convention on Human Rights, 1969[44]

As per Article 1 of the Convention, the States parties have an obligation to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

 

Inter-American Convention to Prevent and Punish Torture, 1987

The Inter-American Convention to Prevent and Punish Torture (IACPPT)[45] specifies the measures that American States must take in order to not only punish perpetrators of torture, but also to prevent and punish any other cruel, inhuman or degrading treatment within their respective jurisdictions.

 

In accordance with Article 6, all parties must actively take efficient measures in order to “prevent and punish torture within their jurisdiction”. This includes ensuring that such acts or attempts to commit torture are considered offences under their respective criminal law, and are appropriately punished through penalties reflecting the nature of the crime. In accordance with Articles 3 and 4, this also includes protection from private actors, including public servants or employees, and any such individual who has acted under the orders of a superior.

 

In Article 7, the Convention states that all State parties shall take an active duty in properly training police officers and other public officials in charge of the detainment of persons deprived of their freedom. In doing so, there should be special attention to the “prohibition of the use of torture in interrogation, detention or arrest,” as well as an emphasis on measures to, “prevent other cruel, inhuman or degrading treatment or punishment”. In terms of extradition, according to Article 11, all parties must “extradite anyone accused of having committed the crime of torture or sentenced for commission of that crime, in accordance with their respective national laws on extradition and their international commitments on this matter”. State parties can practise jurisdiction when the punishable offence has been committed within their jurisdiction and when the alleged perpetrator and/or victim is a national of their State.

 

According to Article 17, “the States parties undertake to inform the Inter-American Commission on Human Rights of any legislative, judicial, administrative, or other measures they adopt in application of this convention”. States are obligated to report to the Commission any actions that are considered torture, and any preventive measures they are imposing within their jurisdiction. Furthermore, the Inter-American Commission on Human Rights will attempt to annually report and analyse the actual status of Member States of the Organisation of American States (OAS) in reference to the prevention and elimination of torture.

 

According to Article 8, in terms of individual cases, whether initiated by individuals or the State, the cases may be “submitted to the international fora whose competence has been recognised by that State”. While this article does not specify the Inter-American Court, if a State has accepted the Inter-American Court’s jurisdiction in their region, then the Inter-American Court is the forum that is utilised. Once States have ratified or acceded the convention, as well as filed a declaration of compliance recognising the court’s jurisdiction at the time of the purported torture, then the court may rule on the State’s liability for violating the treaty. If a State has not expressly declared compliance with the court’s jurisdiction, then the court cannot use its jurisdiction to carry out judgment. States may accept jurisdiction of the court with a temporal condition, generally to avoid retroactive prosecution (e.g. stipulating that the court’s jurisdiction applies after a certain date).[46]

 

Inter-American Convention on Forced Disappearance of Persons, 1994

Organisation of American States (OAS) are signatory to the Inter-American Convention on Forced Disappearance of Persons, 1994. As per Article 1 of the Convention[47], the State parties shall not practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

Besides, the State parties are responsible to punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.[48]

 

The States are further required to cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons and thereby take any legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.[49]

 

As per Article VI, when a State party does not grant the extradition, the case shall be submitted to its competent authorities as if the offence had been committed within its jurisdiction, for the purposes of investigation and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communicated to the State that has requested the extradition.[50]

 

International Human Rights Law Perspective

First, under international human rights law, the obligations of States parties relate only to the promotion and protection of the human rights of their own citizens or others living within their own jurisdiction. In other words, the international human rights system, which emerged and evolved in the aftermath of the Second World War, is, in principle, respectful of State sovereignty. While some steps have been taken, over the intervening years, to “pierce holes” in this protective veil of sovereignty (e.g. the adoption of country-specific human rights resolutions, and the creation of country-specific special procedures), by and large there remains little scope, beyond public criticism and condemnation, for one UN Member State to seriously address (i.e. secure some degree of justice/legal accountability for) human rights violations perpetrated by and within another State.

 

Second, and linked to the first point, international human rights law, and the work of the international human rights system – led by the UN Human Rights Council – is extremely State-centric. In this, it perfectly reflects the neorealist nature of the overall international system (i.e. it is based on the sovereign interactions of nation States). By extension, it is States – not individual representatives of those States – that ratify and become party to the international human rights treaties. Thus, when States in the UN Human Rights Council consider the violation of human rights, including serious violations such as arbitrary detention, torture and extra-judicial killing, their comments (and any consequent UN resolution) are usually focussed on the State concerned rather than on individual representatives of that State (though senior politicians and military commanders are sometimes mentioned). This can – and usually does – have the effect of creating a sense of impunity on the part of State officials (especially those representing powerful States) – a sense that they can “hide” behind the State and are, in effect untouchable.

 

Third, in order for States to be bound by international human rights law, they must first voluntarily ratify the relevant UN human rights treaty or treaties. Notwithstanding jus cogens principles of international law (e.g. freedom from torture), the human rights obligations of States are usually understood to be limited (especially by States themselves) to those treaties to which they are party.

 

Finally, in the political organs of the UN human rights system, it is traditionally very difficult to prove that phenomena such as, for example, climate change or corruption, constitute a violation of human rights. That is because of the legal difficulties inherent in demonstrating causality  i.e. between an act or omission on the part of a State and a demonstrable harm to an individual’s rights. Indeed, it is usually US diplomats at the UN who take the hardest (and most legalistic) line on this point, arguing that there may be a relationship between, say, climate change and human rights, or even that climate change might undermine certain human rights, but drawing a clear line between this and any recognition that global warming violates the rights of those affected.

 

The Global Magnitsky Act (GMA) represents a fundamental challenge to, and paradigm shift from, these key precepts of international human rights law and policy.

  • First, it in effect extends US jurisdiction to address and respond to the violation of human rights anywhere in the world (i.e. it creates a system of universal jurisdiction).
  • Second, it creates and explicitly recognises a causal link between grand corruption and serious human rights violations.
  • Third, rather than targeting sanctions for serious human rights violations/grand corruption at States, the GMA directly and explicitly targets individual representatives of the State, specifically those individuals responsible for the alleged human rights violation. This has the potential to transform conceptions of international human rights law, justice and accountability.
  • Finally, under the GMA it is irrelevant whether or not the State in which the violation is alleged to have taken place is party – or not – to the relevant international human rights treaties.

 

Rationale of International Human Rights Law

The international human rights movement was strengthened when the United Nations General Assembly adopted of the Universal Declaration of Human Rights (UDHR) on 10-12-1948. A series of international human rights treaties and other instruments adopted since 1945 have conferred legal form on inherent human rights and developed the body of international human rights. Other instruments have been adopted at the regional level reflecting the particular human rights concerns of the region and providing for specific mechanisms of protection. Most States have also adopted constitutions and other laws which formally protect basic human rights. While international treaties and customary law form the backbone of international human rights law other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development. Respect for human rights requires the establishment of the rule of law at the national and international levels.[51]

 

As international law currently stands, States are the primary duty-bearers of human rights obligations. In principle, however, human rights can be violated by any person or group, and in fact, human rights abuses committed by non-State actors (such as business enterprises, organised criminal groups, terrorists, guerrilla and paramilitary forces and inter-governmental organisations) are on the increase.

 

International human rights treaties and customary law impose three obligations on States: the duty to respect; the duty to protect; and the duty to fulfil. While the balance between these obligations may vary according to the rights involved, they apply to all civil, political, economic, social and cultural rights. Moreover, States have a duty to provide a remedy at the domestic level for human rights violations.[52]

 

International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.

 

Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.

 

Protection of freedom of expression of parliamentarians

Parliamentary immunities ensure the autonomy, independence and dignity of the representatives of the nation and of the institutions of Parliament itself by protecting them against any threat, intimidation or arbitrary measure by public officials or other persons. The scope of immunities varies. The minimum guarantee, which applies to all Parliaments, is non-accountability. Under this guarantee, parliamentarians in the exercise of their functions may express themselves freely without the risk of sanctions, other than that of being disavowed by the electorate, which may eventually not renew their mandates. In many countries, Members of Parliament also enjoy inviolability: it is only with the consent of Parliament that they may be arrested, detained and subjected to civil or criminal proceedings. Inviolability is not equivalent to impunity. It merely entitles Parliament to verify that proceedings brought against its members are legally well founded.[53]

 

Occupation and international humanitarian law – No sanction of Security Council required

Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”.[54]

 

According to their common Article 2, the four Geneva Conventions of 1949 apply to any territory occupied during international hostilities. They also apply in situations where the occupation of State territory meets with no armed resistance.[55]

 

The legality of any particular occupation is regulated by the UN Charter and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful.[56]

 

Therefore, for the applicability of the law of occupation, it makes no difference whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an “invasion”, “liberation”, “administration” or “occupation”. As the law of occupation is primarily motivated by humanitarian considerations, it is solely the facts on the ground that determine its application.[57]

 

Private property cannot be confiscated by the occupier. The occupant does not acquire ownership of immovable public property in the occupied territory, since it is only a temporary administrator. Subject to restrictions regarding their exploitation and use, it can nevertheless make use of public property, including natural resources, but it must safeguard their capital value, in accordance with the law of usufruct (HR, Article 55).[58]

 

The normal way for an occupation to end is for the occupying power to withdraw from the occupied territory or be driven out of it. However, the continued presence of foreign troops does not necessarily mean that occupation continues.[59]

UN Charter — Sanctions authorised by Security Council

Chapter VII of the UN Charter powers mandate the UN Security Council to sanction intervention to meet threats to international peace and security. Any such action runs counter to the general principle of non-intervention stated in the Charter, Article 2(4), which reads:

 

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.

 

Security, development and human rights constitute the three mutually dependent pillars of the United Nations. Matters of international peace and security are discussed and decided in the Security Council, which can impose binding sanctions and authorise the use of military force under Chapter VII of the UN Charter.[60]

  • Article 41 – Measures not involving the use of armed force

Among the most common measures not involving the use of armed force, which the Council has at its disposal to enforce its decisions, are those measures that are known as sanctions. Sanctions can be imposed on any combination of States, groups or individuals. The range of sanctions has included comprehensive economic and trade sanctions and more targeted measures such as arms embargoes, travel bans, financial or diplomatic restrictions. Apart from sanctions, Article 41 includes measures such as the creation of international tribunals (such as those for the former Yugoslavia and Rwanda in 1993 and 1994) or the creation of a fund to pay compensation for damage as a result of an invasion.[61]

  • Article 42 – Other measures to maintain or restore international peace and security

Article 42 of the Charter enables the Council to use force to maintain or restore international peace and security if it considers non-military measures to be or to have proven inadequate. As the United Nations does not have any armed forces at its disposal (for details, see Article 43), the Council uses Article 42 to authorise the use of force by a peacekeeping operation, multinational forces or interventions by regional organisations.[62]

 

Sanctions authorised by Security Council to combat terrorism

Since 2003 Security Council resolutions have gradually directed States to ensure that counter-terrorism measures comply with international human rights law.[63] Among the most important of these is Resolution 1456 of 2003, which calls on States to “ensure that any measure taken to combat terrorism comply with all their obligations under international law … in particular international human rights, refugee, and humanitarian law”.[64] In 2005 the UN Counter-Terrorism Committee, established by the Security Council to monitor compliance with Resolution 1373, appointed a human rights advisor to its executive directorate.[65] However, the advisor was not allowed to advise the Counter-Terrorism Committee until 2006.[66] In 2010 the Security Council encouraged the Committee’s Executive Directorate to further incorporate human rights into its work.[67] The Security Council also supported a statement by the UN General Assembly that respect for human rights and the rule of law are the “fundamental basis of the fight against terrorism” and that violations of human rights can be “conducive to the spread of terrorism”.[68]

 

In response to mounting criticism and legal challenges, the Security Council has also started to reform the Al Qaeda and Taliban Sanctions List.[69] These reforms still fall short. As Martin Scheinin, the then — UN Special Rapporteur on Human Rights and Counter-Terrorism, said in his final report to the UN General Assembly in August 2010, the counter-terrorism regime created by the Security Council in some cases “continues to pose risks to the protection of a number of international human rights standards”.[70] He later noted that the procedures for terrorist listing and delisting under the Al Qaeda and Taliban Sanctions List by the Security Council’s 1267 Committee still did not meet international human rights standards concerning due process or fair trial.[71]

 

Convention Against Torture and other cruel, inhuman or degrading treatment or punishment

The United States Senate ratified the Convention Against Torture on 27-10-1990 and became a party to the Convention Against Torture (CAT) on 21-10-1994.[72]

State parties’ obligations

States that are party to the CAT are required to fulfil the following obligations:

  • Take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction (Article 2).[73]
  • Not expel, return, or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subject to torture (Article 3).
  • Make torture a punishable offence; take into custody individuals who torture; and submit cases of torture to the proper authorities for prosecution (Articles 4-7).

 

Applicability of such laws in India

The applicability of foreign judgments and decrees in India is governed under Section 44-A of the Code of Civil Procedure (CPC) read along with the provisions of Section 13 of the Code of Civil Procedure. According to Section 13 of the Code of Civil Procedure, 1908, a proceeding against a foreign judgment can be instituted in the following two ways:

(1) A proceeding could be instituted under the provisions of Section 44-A read alongside the necessary provisions which are provided in Section 13 CPC, this is when the matter that has to be challenged is decided by a competent court in the, “reciprocating territories”.

(2) There are reciprocating territories and non-reciprocating territories. In case, a judgment which is passed in the territory of a non-reciprocating country needs to be challenged, then a fresh civil suit needs to be filed in the court in India in order to challenge the judgment passed by the foreign court. However, not only civil, but even criminal proceedings could be instituted challenging the judgment or the decree, passed by a court in a reciprocating or a non-reciprocating territory, however, they are also subject to certain exceptions which shall be dealt with ahead.

 

Judgments from “non-reciprocating territories”, such as the United States, can be enforced only by filing an execution decree in an Indian court for a judgment based on the foreign judgment. The foreign judgment is considered evidentiary. Presently, the United States of America is not declared as a “reciprocating territory”[74] by the Government of India.

The time limit to file such a lawsuit in India is within three years of the foreign judgment.

A foreign judgment is considered conclusive by an Indian court if such judgment:

  • has been pronounced by a court of competent jurisdiction;
  • has been given on the merits of the case;
  • is founded on correct view of international law;
  • is contained in proceedings that followed principles of natural justice;
  • has not been obtained by fraud; and
  • does not sustain a claim on a breach of any law in force in India.

Rule of law as enshrined in Part III of the Indian Constitution for implementation of democracy and protection of human rights is the supreme law which excludes existence of arbitrariness. However, such rule of law cannot be established by mere enactment of law and judiciary ensures enforcement of such rights.

 

Doctrine of Territorial Nexus

Therefore, in present times, the Parliament may enact a law related to extra-territorial operations. The only problem is the enforcement of such extra-territorial operations of law, because it is beyond the executive and judicial domain of India. If an extra-territorial law cannot be enforced, then it is useless to enact it but no one can suggest today that a law is void or ultra vires which is passed by the Parliament on the ground of its extra-territorial operations. Thus a question mark may be put on the practicability of the extra-territorial operation law but not on its existence. The Indian Parliament can enact laws for territories outside of India that have an impact on or a nexus with India. The laws can be enacted for only such extra-territorial operations that have a real connection or an expected real connection with India and nothing illusionary or fanciful. Thus, on account of their having some nexus with India, the Indian Parliament can enact such laws for the benefit of the people of India.

 

In GVK Industries Ltd. v. ITO[75] a question arose whether the Parliament was empowered to enact laws in respect of extra-territorial aspects or causes that have no nexus with India, and furthermore if such laws be bereft of any benefit to India? The clue of answer to this question also lies in word “for” used in Article 245(1). The Court derived the responsibility of the Parliament with the help of word “for” used in Article 245(1) and stated that Parliament of India is to act as the Parliament of India and of no other territory, nation or people. The Court also derived two related limitations in this regard, the first being that the Parliament may only exercise its powers for the benefit of India in regard to the necessity. The laws enacted by Parliament may enhance the welfare of people in other territories too but the benefit to or of India remains the central and primary purpose. The second limitation that the law made by Parliament with regard to extra-territorial aspects or causes that do not have any, or may be expected to not have nexus with India, transgress the first condition. Sudershan Reddy, J. for Constitution Bench negated the answer of question logically and held that the Parliament’s powers to enact legislation, pursuant to clause (1) of Article 245 may not extend to those extra-territorial aspects or causes that have no impact on or nexus with India.[76]

 

The law made by the Parliament related to extra-territorial operations is within judicial scrutiny but can never be deemed as invalid on grounds of its extra-territorial nature and in this way, Article 245(2) reduces the power of judiciary to invalidate such laws. The Parliament of India is empowered to make laws beyond territorial boundary of India but the law must have a nexus or an impact on India. If the Parliament makes laws having extra-territorial operation without having any nexus with or any impact on India, then under such circumstances; judiciary has the power to invalidate such a law because it does not fulfil the condition of Article 245(2). Thus, the words of Article 245(2) create a specific exception for the law made by Parliament in respect of Article 245(1).

 

Government of India can enter into an agreement of foreign jurisdiction subject to the Foreign Jurisdiction Act, 1947. The mandate of Article 260 clearly rules out the possibility of Parliament under Article 245(2) acting outside the territory of India without having any nexus. Therefore, Article 245(2) requires nexus with India. For Article 260, the only condition is agreement subject to the Foreign Jurisdiction Act of 1947. The extra-territorial operation of law is allowed under Article 245(2) of the Constitution of India because the phrases “operation of law” and “making of law” do not possess the same meaning.

 

The dimension of “extra-territorial operation of law” and its distinction with “make law”. The distinction between the phrases “make laws” and “extra-territorial operation of law” is important to understand the constitutional scheme envisaged under Articles 245(1) and (2) of the Constitution of India. The conflict between “principle of sovereignty of States” that reflects in the phrase “make law” (the laws made by one State can have no operation in another State) and “extra-territorial operation of law” reflected in Article 245(2) was drawn in Electronics Corpn .of India Ltd. v. CIT (ECIL).[77]  In this case, the three-Judge Bench of Supreme Court relied on the ratio of British Columbia Railway Co. Ltd. v. R.[78] that the problems of inability to enforce the laws outside the territory of a nation State cannot be grounds to hold such laws invalid. For the Bench R.S. Pathak, C.J. held that a parliamentary statute having extra-territorial operation cannot be ruled out from contemplation. The operation of the law can extend to persons, things and acts outside the territory of India.[79]

 

In ECIL case[80], the Court distinguished the phrase “make law” and “extra-territorial operation of law” on the basis of provocation for the law, object of law and its relationship with India. In both the situation, the provocation for the law must be found within India itself. But in the situation of extra-territorial operation, in order to subserve the object, the law may have exercises beyond the territorial boundary of India and in such conditions; the object must be related to something in India. The Court also stated that it is inconceivable in a situation of extra-territorial operation that law made by Parliament in India has no relationship with anything in India. Finally, the Supreme Court in ECIL case[81] defined the parameter of extra-territorial operation of law and held that Parliament have competence to enact laws with respect to aspects or causes that occur, arise or exist, or may be expected to do so, solely within India. The operation of the law can extend to person, things and acts outside the territory of India. Parliament will have no competence to make the laws unless a nexus with something in India exists. In view of the substantial importance of the question, the Bench referred the case for determination by a Constitution Bench. The dimension of extra-territorial operation of law was again substantially discussed in GVK Industries Ltd. v. ITO[82] by five-Judge Constitution Bench of the Supreme Court of India which opined that the distinction drawn in ECIL case[83] between “make laws” and “operation of law” is a valid one, and leads to a correct assessment of the relationship between clauses (1) and (2) of Article 245. In this case, the Court applying the novel interpretative methodology observed:[84] [The] Constitution [may be viewed] as [being] composed of constitutional topological spaces. Each part of the Constitution deals with certain core functions and purposes, though aspects outside such a core, which are contextually necessary to be included, also find place in such parts. In the instant case Chapter 1, Part XI, in which Article 245 is located, is one such constitutional topological space. Within such a constitutional topological space, one would expect each provision therein to be intimately related to, gathering meaning from, and in turn transforming the meaning of, other provisions therein.

 

The “topological space” theory was applied in the interpretation of Articles 245(1) and (2) and derive contextual necessary support from Article 1(3)(c), Articles 51 and 260 as abovementioned from other part of the Constitution of India. The Court also analysed the textual and historical arguments of Articles 245(1) and (2) of the Constitution of India and arrived at the conclusion that Article 245 does not empower the Parliament to make laws beyond territorial boundary of India except in the case that extra-territorial operation of law has a nexus with or an impact on India.[85] The other provisions of Chapter 1, Part XI of the Constitution of India create a topological space referred to laws made “for the whole or any part of the territory of India” alone. The Court after analysis of ratio of ECIL case[86] and wider structural analysis of the constitutional provision, finally held that the Parliament is constitutionally restricted from enacting legislation with respect to extra-territorial aspects or causes that do not have, nor expected to have any direct or indirect, tangible or intangible impact or the effect or consequence for the territory of India, or any part of India or the interests of the welfare of the well-being of or security of inhabitants of India and Indians.[87] Therefore, in present times, the Parliament may enact a law related to extra-territorial operations. The only problem is the enforcement of such extra-territorial operations of law, because it is beyond the executive and judicial domain of India. If an extra-territorial law cannot be enforced, then it is useless to enact it but no one can suggest today that a law is void or ultra vires which is passed by the Parliament on the ground of its extra-territorial operations. Thus a question mark may be put on the practicability of the extra-territorial operation law but not on its existence. The Indian Parliament can enact laws for territories outside of India that have an impact on or a nexus with India. The laws can be enacted for only such extra-territorial operations that have a real connection or an expected real connection with India and nothing illusionary or fanciful. Thus, on account of their having some nexus with India, the Indian Parliament can enact such laws for the benefit of the people of India.


† Advocate is a practicing counsel at the Supreme Court of India, BA LLB (Hons.), LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford and Research Associate (India) University of Oxford, United Kingdom.

Credits to Gauranshi Harjai, Advocate for her assistance in the research and compilation. The content of the article are personal and has no bearing on the institutional affiliations of the author.

[1] “US Law Firm Seeks Action Against Adityanath, UP Top Cops for ‘Encounter’ Killings”, The Wire, 21-2-2022  <US Law Firm Seeks Action Against Adityanath, UP Top Cops for “Encounter” Killings (thewire.in)>.

[2] US Government sanctions RAB, Bangladesh police chief See < HERE >

[3] “US Law Firm Seeks Action Against Adityanath, UP Top Cops for ‘Encounter’ Killings”,  The Wire, 21-2-2022  <US Law Firm Seeks Action Against Adityanath, UP Top Cops for “Encounter” Killings (thewire.in)>.

[4] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 USC § 5811 note)].

[5] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 USC § 5811 note)] at § 402(a)(7)-(10) (outlining Congress’ findings and sense as to the “politically motivated … persecution” of Sergei Magnitsky and subsequent “impunity [of certain Russian state officials] for their involvement in corruption and the carrying out of his repressive persecution”. (Please check)

[6] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[7] The Russian Foreign Ministry released a list of 18 current or former US officials on April 13 who it said “are connected to legalising torture and unlimited detention of prisoners in the special prison at Guantanamo [and] to the arrests and kidnapping of Russian citizens in third countries and infringing on their lives and health.” “Russia Responds to ‘Magnitsky List’ by Banning Americans” 13-4-2013. Radio Free Europe Radio Liberty, <Russia Responds to ‘Magnitsky List’ by Banning Americans (rferl.org)>.

[8] The Russian Foreign Ministry released a list of 18 current or former US officials on April 13 who it said “are connected to legalising torture and unlimited detention of prisoners in the special prison at Guantanamo [and] to the arrests and kidnapping of Russian citizens in third countries and infringing on their lives and health.” “Russia Responds to ‘Magnitsky List’ by Banning Americans” 13-4-2013. Radio Free Europe Radio Liberty, <Russia Responds to ‘Magnitsky List’ by Banning Americans (rferl.org)>.

[9] Exec. Order No. 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The order took effect on 21-12-2017. Id. at § 12 (please check).

[10] EO 13818, preamble. The President declared a national emergency and invoked powers pursuant to the International Emergency Economic Powers Act, 50 USC § 1701 (IEEPA), even though the Global Magnitsky Act does not require such a declaration to impose sanctions. Pub. Law No. 114-328, § 1263(b)(1)(B) (stating that “the requirements of S. 202 of the … [IEEPA] … shall not apply for the purposes of … [the imposition of sanctions]”. The President’s declaration under the IEEPA of a national emergency provides the legal authority needed to support the many provisions of EO 13818 that exceed the scope of the Global Magnitsky Act.

[11] Global Magnitsky Human Rights Accountability Act, Subtitle F of the National Defense Authorization Act for Fiscal Year 2017, Pub. Law No. 114-328, §§ 1262-65 at § 1263, codified at 22 USC 2656 note (23-12-2016).

[12] A subsequently enacted law targets foreign corruption and human rights abuses, but in particular jurisdictions.  The Countering America’s Adversaries Through Sanctions Act (CAATSA), Pub. Law No. 115-44, 131 Stat. 886 (2-8-2017) provides for, inter alia: the imposition of sanctions on, among others, persons responsible for or complicit in “significant corruption” in the Russian Federation, Pub. Law No. 115-44, § 227, against persons engaged in certain human rights abuses in Iran (Pub. Law No. 115-44, Title II, Countering Iran’s Destabilising Activities Act of 2017 at § 106) and North Korea (Pub. Law No. 115-44, Title III, Korean Interdiction and Modernisation of Sanctions Act, §§ 321-322).

[13] Sergei Magnitsky Act, Pub. Law No. 112-208, § 402(a)(10).

[14] Exec. Order No. 13, 818, “blocking the property of persons involved in serious human rights abuse or corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The order took effect on 21-12-2017. Id. at § 12.  (Please check)

[15] Exec. Order No. 13, 818, “blocking the property of persons involved in serious human rights abuse or corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The Order took effect on 21-12-2017. Id. at § 12. (Please check)

[16] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 U.S.C. § 5811 note)].

[17] It is only after sanctions have been imposed that the Global Magnitsky Act considers whether justice has been administered as it authorizes the President to “terminate the application of sanctions” if he (or she) determines that a sanctioned person “has been prosecuted appropriately” or “credibly demonstrated a significant change in behaviour, has paid an appropriate consequence . . . and has credibly committed to not engage in  . . . (a sanctionable activity) in the future.” Global Magnitsky Act, Pub. Law No. 114-328, § 1263(g)(2)-(3) (providing also at § 1263(g) that the President must report the termination of sanctions to the appropriate congressional committees at least 15 days before such termination).

[18] Individuals targeted include: Yahya Jammeh, the former President of the Gambia; Maung Maung Soe, Chief of the Burmese Army’s Western command, who oversaw the military operation in Burma’s Rakhine State that was responsible for widespread human rights abuses against Rohingya civilians; Sergey Kusiuk, commander of an elite Ukrainian police unit (the Berkut) accused of attacking peaceful protesters in 2013; Julio Antonio Juarez Ramirez, a Guatemalan Congressman accused of ordering an attack in which two journalists were killed and another injured; Ramzan Kadyrov, Head of the Chechen Republic; Roberto Jose Rivas Reyes, President of Nicaragua’s Supreme Electoral Council; Dan Gertler, an Israeli billionaire who has profited from corrupt mining deals in the DRC; Slobodan Tesic, an arms dealer in the Balkans; and Artem Chaika, the son of Russia’s Prosecutor General.

[19] “Interests in property” refers to property that is directly or indirectly owned 50% or more by one or more blocked persons. US Department of the Treasury, revised guidance on entities owned by persons whose property and interests in property are blocked, 13-8-2014. See also OFAC, entities owned by persons whose property and interest in property are blocked (50% Rule) (“OFAC 50% Rule Guidance”). For a discussion of the 50% rule and related due diligence (sanctions screening) practices, see, e.g. Hdeel Abdelhady, United States Adds Russian Direct Investment Fund, Other Russian Financial Services Actors to Sectoral Sanctions ListMassPoint PLLC, 7-8-2015.

[20] EO 13818, § 4.

[21] For a discussion of how the international strength of the US financial system and dollar play a role in extending the global reach of US law, see Hdeel Abdelhady, emerging trade and finance channels led by on-western nations could curtail the global reach of US lawMassPoint PLLC, 11-6-2015 (discussing the relationship between US financial system and dollar strength and the extraterritorial reach of US sanctions and other laws).

[22] See, e.g. Michelle Zilio, “Canada Sanctions 52 Human-Rights Violators Under New Magnitsky Law“, The Globe and Mail, 3-11-2017.

[23] The Global Magnitsky Act excepts from immigration sanctions persons whose admission to the United States would “further important law enforcement objectives” or is “necessary to permit” the United States to comply with obligations vis-à-vis the United Nations. Pub. Law No. 114-328, §1263(e).

[24] Id. at § 1263(e).

[25] EO 13818, § 5.

[26] Global Magnitsky Act, Pub. Law No. 114-328, § 1263(f) (incorporating the penalties of the IEEPA, 50 USC § 1705).

[27] IEEPA, 50 USC § 1705(b).

[28] Id. at § 1705(c).

[29] In October 2018, the then—Chairman and Ranking Member of the Senate Foreign Relations Committee, joined by other Senators, pursuant to S. 1263(d) requested a determination from the President concerning Global Magnitsky sanctions with respect to “any foreign person responsible” for gross human rights violations against Saudi journalist Jamal Khashoggi. In November 2018, the Trump Administration announced Global Magnitsky sanctions against 17 Saudi officials “for having a role” in Khashoggi’s killing. The administration ultimately declined, however, to provide a determination in response to the congressional request, prompting criticism from some Members of Congress.

[30] <PUBL328.PS (treasury.gov)>

[31] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[32] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[33] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[34] Klehm, Bryce. “The Magnitsky Act: Legislative Justice.” Penn Undergraduate L.J., The Roundtable (2018). Web: available HERE .

[35] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[36] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[37] Clark, Campbell (25-3-2015). “All Parties Signal Support for Magnitsky Law to Sanction Russian Officials”The Globe and MailArchived from the original on 25-2-2019. Retrieved 11-3-2018.

[38]  “Senate Public Bill 42nd Parliament, 1st Session.” LEGIS info. Parliament of Canada. Archived from the original on 3-7-2020. Retrieved 1-7-2020.

[39]Justice for Victims of Corrupt Foreign Officials Act.” Canada’s International Relations. Ottawa: Government of Canada. 16-10-2019. Retrieved 21-10-2020.

[40]Justice for Victims of Corrupt Foreign Officials Act.” Canada’s International Relations. Ottawa: Government of Canada. 16-10-2019. Retrieved 21-10-2020.

[41] Brzozowski, Alexandra (10-12-2019). “EU Ministers Break Ground on European ‘Magnitsky Act’ “Euractiv. Retrieved 16-9-2020.

[42] Emmott, Robin (16-9-020). “Be Courageous in Diplomacy, EU Chief Says, Proposing New Sanctions”. Reuters. Retrieved 16-9-2020.

[43] “Britain’s New Toughness on Human Rights Abusers is a Welcome Change.” The Washington PostArchived from the original on 13-7-2020. Retrieved 12-7-2020.

[44] Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22-11-1969.

[45] The IACPPT was adopted by the General Assembly of the OAS in 1985. It entered into force in 1987 after 18 States ratified or acceded to it.

[46] <Inter-American Convention to Prevent and Punish Torture (humanrightscommitments.ca)>

[47] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[48] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[49] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[50] “Inter-American Convention on Forced Disappearance of Persons” 9-6-1994, UNHCR. <Refworld | Inter-American Convention on Forced Disappearance of Persons> Retrieved on 24-2-2022.

[51] International Human Rights, United Nations Human Rights <OHCHR | International Law>.

[52] “Human Rights”, United Nations Human Rights, Ch. 2, p. 30, Inter-Parliamentary Union, 2016. <HandbookParliamentarians.pdf (ohchr.org)>.

[53] “Human Rights”, United Nations Human Rights, Ch. 2, p. 30, Inter-Parliamentary Union, 2016. <HandbookParliamentarians.pdf (ohchr.org)> p. 92.

[54] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[55] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[56] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[57] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[58] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and international humanitarian law: questions and answers – ICRC>.

[59] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and international humanitarian law: questions and answers – ICRC>.

[60] Art. 39. Determination of threat to the peace, breach of the peace, or act of aggression: Before the Security Council can adopt enforcement measures, it has to determine the existence of any threat to the peace, breach of the peace or act of aggression. The range of situations which the Council determined as giving rise to threats to the peace includes country-specific situations such as inter- or intra-State conflicts or internal conflicts with a regional or sub-regional dimension. Furthermore, the Council identifies potential or generic threats as threats to international peace and security, such as terrorist acts, the proliferation of weapons of mass destruction or the proliferation and illicit trafficking of small arms and light weapons;

Art. 40 – Provisional measures to prevent aggravation of a situation:

The objective of measures under Art. 40 of the Charter is to “prevent an aggravation of the situation”. While not expressly enumerated in the United Nations Charter, the types of measures that could be typically assumed as falling under the provision of Art. 40, and which are distinct from recommendations made under Ch. VI of the Charter, include a withdrawal of armed forces, a cessation of hostilities, a conclusion or observance of a ceasefire or a creation of the conditions necessary for unimpeded delivery of humanitarian assistance.

[61] “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”  United Nations Security Council <Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression | United Nations Security Council>.

[62] “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”  United Nations Security Council <Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression | United Nations Security Council>.

[63] For Additional Discussion of UN Counterterrorism Reforms and Human Rights, see James Cockayne, Alistair Millar, David Cortright, and Peter Romaniuk, Reshaping United Nations Counterterrorism Efforts, Center on Global Counterterrorism Cooperation, March 2012, <HERE > (accessed 25-5-2012), p. 7-9.

[64] United Nations Security Council, Resolution 1456 (2003), S/RES/1456 (2003), <HERE > (accessed 25-5-2012), Annexure, para. 6.

[65] Security Council Counter-Terrorism Committee Web Page, “Protecting Human Rights while Countering Terrorism,” <HERE  (accessed 12-6-2012). See also Rosand, et al, “The UN Security Council’s Counterterrorism Program,” HERE >, p. 16

[66] Rosand, et al, “The UN Security Council’s Counterterrorism Program,” <HERE >, p. 16.

[67] UN Security Council, Resolution 1963 (2010), S/RES/1963 (2010), <HERE > (accessed 25-5-2012), para 10.

[68] UN Security Council, Resolution 1963 (2010), S/RES/1963 (2010), <HERE > (accessed 25-5-2012), para 10. The Security Council was reaffirming language used in the UN Global Counter-Terrorism Strategy of 2006, A/RES/60/288, <HERE > (accessed 28-6-2012), Plan of Action, Pillars I and IV.

[69] In December 2009, for example, it passed a resolution creating an ombudsman to mediate requests from individuals, organisation’s, and companies to be delisted and mandated swift processing of their applications. However, the ombudsman does not have the authority even to make recommendations to the listing committee, a body consisting of State representatives that reaches decisions confidentially. In 2011 the Security Council split the sanctions list into two, one for Al-Qaeda and one for the Taliban, and modified the regimens for each; The court challenges also prompted the EU in 2009 to adopt procedural and due process reforms to the implementation of the UN 1267 blacklist regime. See Council of the European Union Regulation 1286/2009, <HERE> (accessed 12-6-2012). For a detailed analysis, see Sullivan and Hayes, BlacklistedHERE, pp. 57-61.

[70] Martin Scheinin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc. A/65/258 (2010), HERE  (accessed 25-5-2012), para 39.

[71] “Human rights/Counter terrorism: the new UN listing regimes for the Taliban and Al-Qaeda: Statement by the Special Rapporteur on Human Rights and Counter terrorism, Martin Scheinin,” UN Office of the High Commissioner for Human Rights news release, 29-6-2011, HERE  (accessed 25-5-2012)

[72] “International Human Rights Law”, 20-12-2019, US Citizenship and Immigration Services, Refugee, Asylum, and International Operations Directorate (Raio) <International_Human_Rights_Law_RAIO_Lesson_Plan.pdf (uscis.gov)>

[73] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (27-6-1987). <OHCHR | Convention against Torture>

[74] A “reciprocating territory” is defined in Explanation 1 to Section 44-A of India’s Civil Procedure Code as: “Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory.”

[75] (2011) 4 SCC 36.

[76] “Constitutional Space and Legislative Development in India on Extra-Territorial Operation of Law, Dr. Dharmendra Singh, ILI Law Review, Summer Issue 2018. <dks.pdf (ili.ac.in)>

[77] 1989 Supp (2) SCC 642.

[78] 1946 SCC OnLine PC 33.

[79] 1989 Supp (2) SCC 642.

[80] 1989 Supp (2) SCC 642.

[81] 1989 Supp (2) SCC 642

[82] (2011) 4 SCC 36.

[83] 1989 Supp (2) SCC 642.

[84] 1989 Supp (2) SCC 642.

[85] 1989 Supp (2) SCC 642.

[86] 1989 Supp (2) SCC 642.

[87] 1989 Supp (2) SCC 642.

Hot Off The PressNews

It has been reported to the Department that most of the honey brands sold in the market are adulterated with sugar syrup.

This is a serious matter as it will compromise our health in the troubled times of COVID 19 and add to the risk of Covid-19. The Department has asked the Central Consumer Protection Authority(CCPA) to look into the matter. The CCPA, in accordance with Section 19(2) of the Consumer Protection Act 2019, after preliminary examination, has referred the matter to the FSSAI, the food regulator, to take appropriate action in the matter and has offered to extend cooperation in the investigation of the matter for taking class action as envisaged in Section 10 of the Act.

The Department takes the consumer issues seriously.

Recently, taking note of an incident where a 40-year – an old man set himself on fire in a Rohini mall and got burn injuries after mobile phone service centre allegedly refused to replace a phone he had bought for his niece, a 12th class school student for her online classes, the Department took up the matter with the mobile phone company concerned. The mobile company has informed that they have decided to compensate the consumer with Rs. 1,00,000/- and a new Mobile handset.

Use of proper accurate and standards weights and measures are very important for effective functioning of any economy, as it plays an indispensable role in consumer protection as protection from malpractices of underweights or under-measure is an important function of the Government. The Legal Metrology (Packaged Commodities) Rules, 2011 are framed to regulate the pre-packaged commodities. Under these rules, the pre-packaged commodities have to comply with certain mandatory information on e-commerce platform by the seller in the interest of consumers. It was observed that some e-commerce entities are violating the mandatory requirement of declaration of information of the product on e-commerce platforms. Therefore, notices have been issued to various e-commerce entities for non-compliance.

The Department of Consumer Affairs in the Ministry of Consumer Affairs, Food & Public Distribution, Government of India, is the nodal department for consumer protection and it has been taking several measures for the protection of the interests and rights of the consumers. The Consumer Protection Act, 2019 has come into force from 20th July 2020, which provides for three-tier quasi-judicial machinery to provide simple and speedy redressal to consumer disputes. A Central Consumer Protection Authority (CCPA) has been established to regulate matters relating to violation of rights of consumers, unfair trade practice and false or misleading advertisements which are prejudicial to the interests of public and to promote, protect and enforce the rights of a consumer as a class.


Ministry of Consumer Affairs, Food & Public Distribution

[Press Release dt. 10-12-2020]

[Source: PIB]

Op EdsOP. ED.

Background

In the background of the unprecedented slump that the Indian economy is currently going through on account of the Covid-19 pandemic and the resulting lockdowns, it had become imperative to bring in some long awaited changes to the Indian labour laws to provide businesses with more leeway to operate and adapt to stay competitive in the global markets. This was also necessary from the point of view of making India self-sufficient. But as the three Codes (recently passed by Parliament in the absence of any significant opposition) set about to revamp the entire Indian Labour Law, what does it entail for the Indian industry and its workmen? In this article we shall be taking a closer look at the Industrial Relations Code, 2020[1].

The Industrial Relations Code, 2020 seeks to consolidate and modify the laws relating to trade unions, conditions of employment in industrial establishments or undertakings and investigation and settlement of industrial disputes. It shall replace the Trade Unions Act, 1926, the Industrial Employment (Standing Orders) Act, 1946 and the Industrial Disputes Act, 1947.

Changes to legal terms

Interestingly, the explanation for the term “appropriate government” mentions that the Central Government shall continue to be the appropriate Government for the Central Public Sector Undertakings even where the Government has divested its stake to below 50%. This could potentially provide a pathway to the Government to undertake further divestment in the PSUs in the future while assuaging the redressal demands of the PSUs employees.

The scope of coverage has been widened to include all employees including supervisory, managerial and administrative staff that were up to now excluded from the ambit of the Industrial Disputes Act. The scope of the term “employer” has also been widened to include almost all employer including contractors and legal representatives of a deceased employer, which were up to now not a part of the said term under the Industrial Disputes Act. Similarly, the definition of the term “workers” (which replaces the term “workman” used in the Industrial Disputes Act) also includes persons employed in supervisory work and even includes working journalists and sales promotion employees. By extension, the widening of these terms also serves to extend the ambit of “industrial dispute” itself.

The definition of the term “industry” has also been elaborated upon to include most enterprises for production, supply and distribution of goods while excluding charitable organisation, sovereign function of the Government and domestic workers.

The definitions of “lay-off”, “lock out” and “retrenchment” have not seen much of a significant change. The term “strike” will now include absenteeism or refusal to work of more than 50% workers. The term “wages” for the purposes of this Code will now constitute basic pay, dearness allowance and retaining allowance, while specifically excluding bonus, HRA, PF contribution of employer, conveyance allowance, overtime allowance, commission, gratuity and any other retirement benefits.

A positive role for the Trade Unions

The new Code prescribes that to be registered and recognised any Trade Union must have (and must continue to have post registration) at least the subscription of 10% workmen or 100 workmen employed in an industrial establishment, whichever is less. Despite being considered body corporates unto themselves the Trade Unions shall be excluded from the purview of the Societies Registration Act, 1860, the Cooperative Societies Act, 1912, the Multi-State Cooperative Societies Act, 2002 and the Companies Act, 2013.

Despite retaining the concept of a Works Committee, the new Code also recognises the recognised Trade Union (the Trade Union with the subscription of 51% or more workers in case of more than one Trade Union) as the sole negotiating union or the negotiating council. Disputes between rival Trade Unions or between Trade Unions and its constituent workers will be adjudicated by the Tribunal. As a precautionary measure to the overtaking of such Trade Unions by external vested interest or mere political aspirants, the Code provides that at least a half of the office bearers of the Trade Union in an unorganised sector shall be persons actually employed in the establishment or the industry.

The Standing Orders under the new law shall apply to every industrial establishment with 300 or more workers (up from the Industrial Disputes Act where this threshold was 100).  The Central Government shall make model standing orders and the employers shall follow suit with their draft standing orders based thereupon within 6 months therefrom. The Trade Unions shall be consulted therein and the draft Standing Orders shall then be certified by a Certifying Officer.

Push for Alternate Dispute Redressal mechanisms  

In my opinion, where the new Code truly shines is in its significant push to avail multiple avenues outside of the traditional labour courts for grievance and dispute redressal. A laudable initiative in the new Code is the provision for the constitution of a Grievance Redressal Committee in all establishments employing 20 or more workers as an in-house redressal mechanism for fast-track redressal (within 30 days) of the grievances of individual workers. The appeal there from goes to the Conciliation Officer. The appeal from the Conciliation Officer in turn goes to the Industrial Tribunal.

Further, in keeping with the times, the new Code has done well to introduce Alternate Dispute Resolution in the Industrial Dispute Redressal mechanism by providing for the provision for voluntary reference and redressal of disputes by way of arbitration. The new Code further provides recognition to settlements (both within and outside conciliation proceedings) and arbitration awards by making them binding on the parties involved.

Besides the usual Industrial Tribunal, the new Code also provides for the establishment of one or more National Industrial Tribunals which shall adjudicate such disputes (by consensus), that are deemed to be of national importance or concern establishments in more than one States, as are referred to it. A very important aspect of the new Code is that it shall also affect all pending disputes which will be transferred to the appropriate forum under the new Code and adjudicated either de novo or from the present stage as deemed fit.

An interesting aspect of the Code is that the appropriate State Government or the Central Government gets a choice to exercise veto on enforcement of any award on “public grounds affecting the national economy or social justice” subject to the subsequent approval of such executive action by the State Legislature or Parliament as the case may be.

The new Code also allows workers to recover money from their employers by initiating proceedings in the prescribed manner with the appropriate Government.

Hire and Fire or Misfire?

The general provisions for continuous service, lay-offs, retrenchment and notice before the closure of business remain more or less the same in the new Code as in the Industrial Disputes Act, 1947. However, where the new Code is a game-changer is in providing employers with more flexibility in hiring and firing by way of appointing fixed-term workers. At the same time, the new Code seeks to balance the scales by extending all the statutory benefits including gratuity to such fixed-term employees as are employed for over a year.

In another much-needed initiative, the new Code also provides for setting up a worker’s reskilling fund for retrenched workers with contribution from both, the employers as well as the appropriate Government.

While the new Code provides a breather for businesses by raising the threshold for the Standing Orders and also takes some laudable initiatives on the disputes redressal side, the major provisions pertaining to layoffs, lockouts and retrenchment (outside of the fixed term workers) remain largely the same and hence, continue to be severely regulated. Given the largely dismal outlook of the economy in the near future and the loss of several huge investments opportunities in the recent past, I fear that this may not be enough and that more sacrifices may be required for the revival of the badly hit Indian industry and to ensure that it is able to compete competitively with the more favourably placed economies for a bigger pie of the global trade of goods and services going forward.


* Advocate-on-Record, Supreme Court of India and disputes resolution lawyer at various Commercial Courts and Industrial Tribunals in Delhi. Author can be reached at gaggar.aditya@gmail.com

[1] The Industrial Relations Code, 2020  

COVID 19Hot Off The PressNews

The proposals presented today by the Finance Minister are designed to stimulate spending in a fiscally prudent manner as some of the proposals are for advancing or front-loading of expenditure with offsetting changes later while others are directly linked to increase in GDP. The present announcement by Sitharaman highlights the active intervention by the Government of India to combat the economic slowdown created by COVID-19.

The details are as follows: –

CONSUMER SPENDING

  1. Leave Travel Concession (LTC) Cash Voucher Scheme

While announcing the scheme, the Finance Minister said, “The biggest incentive for employees to avail the LTC Cash Voucher Scheme is that in a four-year block ending in 2021, the LTC not availed will lapse, instead, this will encourage employees to avail of this facility to buy goods which can help their families.”

Central Government employees get LTC in a block of 4 years in which air or rail fare, as per pay scale/entitlement, is reimbursed and in addition, Leave encashment of 10 days (pay + DA) is paid. But due to COVID-19, employees are not in a position to avail of LTC in the current block of 2018-21.

Therefore, the Government has decided to give cash payment in lieu of one LTC during 2018-21, in which:

  • Full payment on Leave encashment and
  • Payment of fare in 3 flat-rate slabs depending on class of entitlement
  • Fare payment will be tax-free

An employee, opting for this scheme, will be required to buy goods/services worth 3 times the fare and 1 time the leave encashment before 31st March 2021.

The scheme also requires that money must be spent on goods attracting GST of 12% or more from a GST registered vendor through digital mode. The employee is required to produce GST invoice to avail the benefit.

If Central Government employees opt for it, cost will be around Rs. 5,675 crore. Employees of Public Sector Banks (PSBs) and Public Sector Undertakings (PSUs) will also be allowed this facility and the estimated cost for them will be Rs. 1,900 crore. The tax concession will be allowed for State Government/Private Sector too, for employees who currently are entitled to LTC, subject to following the guidelines of the Central Government scheme. The demand infusion in the economy by Central Government and Central PSE/PSB employees is estimated to be Rs. 19,000 crore approx. The demand infusion by State Government employees will be Rs. 9,000 crore. It is expected that it will generate additional consumer demand of Rs. 28,000 crore.

2. Special Festival Advance Scheme

A Special Festival Advance Scheme for non-gazetted employees, as well as for gazetted employees too, is being revived as a one-time measure to stimulate demand. All Central Government employees can now get an interest-free advance of Rs. 10,000, to be spent by 31st March, 2021 on the choice of festival of the employee. The interest-free advance is recoverable from the employee in maximum 10 installments.

The employees will get a pre-loaded RuPay Card of the advance value. The Government will bear Bank charges of the card. Disbursal of advance through RuPay card ensures a digital mode of payment, resulting in tax revenue and encouraging honest businesses.

The one-time disbursement of Special Festival Advance Scheme (SFAS) is expected to amount to Rs. 4,000 crore; and if the SFAS given by all State Governments, another tranche of Rs. 8,000 crore is expected to be disbursed.

CAPITAL EXPENDITURE

  1. Special Assistance to the States:

While announcing measures related to Capital Expenditure, Smt. Sitharaman said that money spent on infrastructure and asset creation has a multiplier effect on the economy. It not only improves current GDP but also future GDP. The Government wants to give a new thrust to Capital Expenditure of both States and Centre.

Giving a new thrust on Capital Expenditure, Smt. Sitharaman said that money spent on infrastructure and asset creation has a multiplier effect on the economy. It not only improves current GDP but also future GDP. The Government wants to give a new thrust to Capital Expenditure of both States and Centre. Smt. Sitharaman said that the Central Government is issuing a special interest-free 50-year loan to States of Rs. 12,000 crore Capital Expenditure. The Scheme consists of 3 Parts.

Part – 1 of the scheme provides for:

  • Rs. 200 crore each for 8 North East states (Rs. 1,600 crore)
  • Rs. 450 crore each Uttarakhand, Himachal Pradesh (Rs. 900 crore)

Part – 2 of the scheme provides for:

  • Rs. 7,500 crore for remaining states, as per 15th Finance Commission devolution.

The Finance Minister said that both Part 1 and Part 2 of interest-free loans given to States are to be spent by 31st March, 2021 and 50% will be given initially, the remaining 50% will be given upon utilization of first 50%. Unutilised funds will be reallocated by the Central Government.

Under Part – 3 of Rs. 12,000 crore interest-free loans to states, Rs. 2,000 crore will be given to those states which fulfill at least 3 out of 4 reforms spelled out in Aatma Nirbhar Bharat Package (ANBP) vide Department of Expenditure’s Letter F.No. 40(06)/PF-S/17-18 Vol. V dated 17th May 2020. Rs 2,000 crore is over and above other borrowing ceilings.

Following are the features of this Scheme:

  • It can be used for new or ongoing capital projects needing funds and / or settling contractors’/ suppliers’ bills on such projects
  • CAPEX to be spent by 31st March 2021
  • This funding will be over and above all other additional borrowing ceilings given to states
  • Bullet repayment after 50 years, no servicing required for 50 years
  1. Enhanced Budget Provisions:

The Finance Minister said that additional budget of Rs. 25,000 crore, in addition to Rs. 4.13 lakh crore given in Union Budget 2020, is being provided for Capital Expenditure on roads, defence, water supply, urban development and domestically produced capital equipment.

To allow smooth conducting of Government business, allocations will be made in forthcoming Revised Estimate discussions of Ministry of Finance with concerned ministries.

It may be recalled that a package of Rs 1.70 lakh crore under Pradhan Mantri Garib Kalyan Package (PMGKP) was announced on 26th March, 2020 and the Aatma Nirbhar Bharat Package (ANBP), a Special economic and comprehensive package of Rs 20 lakh crore – equivalent to 10% of India’s GDP – was announced on 12th May, 2020 by Hon’ble Prime Minister Shri Narendra Modi. He gave a clarion call for आत्मनिर्भर भारत अभियान or Self-Reliant India Movement and also outlined five pillars of Aatmanirbhar Bharat – Economy, Infrastructure, System, Vibrant Demography and Demand.


Ministry of Finance

[Press Release dt. 12-10-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

Given the prevailing circumstances in which the world is increasingly moving towards adopting digital force-multipliers for productivity, the Government of India has decided to follow this best practice.

There is to be no activity towards printing wall calendars, desktop calendars, diaries and other such material for use in the coming year by any Ministries/Departments/PSUs/PSBs and all other organs of the government.

All such activity shall go digital and online.

There is to be a concerted effort towards incorporating innovative methods in such matters. Using technological innovations for planning, scheduling and forecasting is well known to be economical, efficient and effective.

Prime Minister Narendra Modi and his governance model have always seen technology as an enabler. Integrating technology into our work is in line with his vision.

Therefore all calendars, diaries, schedulers and similar other materials, which were earlier printed in physical format, will now be done digitally. Publication of Coffee Table books will also be stopped and appropriate use of E-Books is encouraged. All Ministries/Departments/PSUs/PSBs and all other organs of the government are to adopt innovative means to use digital or online methods for the same. Innovative digital and online solutions that will achieve the same result as physical calendars or diaries are to be prioritized and to be put into practice.

Necessary order has been issued to all concerned.( Please See)


Ministry of Finance

[Press Release dt. 02-09-2020]

Op EdsOP. ED.

We are living in a digital age, much more so after the onset of Covid-19. Business, meetings, interaction, banking, even education has shifted to online mode. Every person is accessing and sharing so much of data that it is very scary as one never knows who hands your data lands up in.

With this, concerns about data privacy have become more important than ever before in everyone’s mind.

Data can be classified into two categories as personal and non-personal. With the advancement of digital technology, there is a tremendous upsurge in storage, handling and processing of data by companies and humans in digital format.

It reflects the need to establish distinct regulatory mechanism for handling and processing of personal and non-personal data to preserve the confidentiality and secrecy of such data.

The Central Government is on course to develop a mechanism for regulating the collection, storage and usage of personal data and non-personal data separately.

Work on the non-personal data bill is going in parallel with the Personal Data Protection Bill, 2019. The Central Government had constituted a panel to develop a draft report on non-personal data governance.

The prime job of panel is to perform extensive research and to study all vital aspects associated with governance and regulation of non-personal data.

According to the draft report, non-personal data means data which is not personal. The panel has submitted its report to Central Government for review. The Central Government has invited comments from general public along with all stakeholders concerned by 13-8-2020 in this regard.

The idea of seeking comments from public is to give final shape to draft in progress to address all concerns and issues related to non-personal data in a comprehensive method.

An interesting outcome of the research by panel is that companies with largest data pools are unbeatable and have techno-economic advantages over small-medium companies.

According to available statistics, few startups established during the period (1990-2000) has emerged as larger corporations with economic capacity of USD 1 trillion market due to their stronghold in collection and analysis of users’ data.

Some interesting facts about larger corporations:

(a) 60% of internet advertising market in the United States is being dominated by Google and Facebook.

(b) 37% of online e-commerce market controlled by Amazon in United States.

These statistics reflects the power of right collection and processing of data.

According to the draft report, companies which are gathering and collecting data beyond certain limits will come under the ambit of a “data business” and have to register as “data business” in India. Such companies need to report the method of data collection and mode of data usage to regulatory authority.

Development of a data sharing framework is critical to:

(a) address and resolve privacy concerns in a timely manner;

(b) condense the side effects related to non-personal data processing; and

(c) generate social, public and economic value creation.

Establishment of data sharing platform reflects in transparency in data usage and handling, quantify efficiencies and better quality services.

It is expected that sharing of non-personal data could encourage companies to come up with new and innovative services and products to cater the needs of public at large.

Establishment of regulatory authority is a decisive connection in non-personal data governance – such authority should be empowered with the right set of legal and administrative tools to monitor data sharing acts of companies, collection and reviewing of data from companies and to resolve data privacy-related disputes.

Certain companies are misusing the data for their benefit causing considerable data privacy issues to the users — it is about time to develop distinct laws and mechanism for handling, processing and usage of personal and non-personal data to curb misuse of personal and non-personal data by companies.

Inception of separate laws for regulation of personal and non-personal data along with right implementation would result in:

(a) streamline the process of data handling and collection;

(b) make companies collecting and processing data more accountable and responsible;

(c) improve transparency standards in collection and usage of data; and

(d) provide more control to users on the aspect of collection and usage of their data.


*Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. **Paruchuri Baswanth Mohan, Research Associate and can be contacted at  paruchuribaswanthmohan@gmail.com

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Siddhartha Varma and Ajit Kumar, JJ., while addressing the present Public Interest Litigation stated that, amidst the phased re-opening of the country from the nationwide lockdown due to COVID-19 Pandemic,

people have got a wrong impression that they can now freely mix with each other and move around.

It was noted that along with the revival of economy amidst COVID-19 Pandemic, various news reports suggest that the infection is also speedily rising.

The cause for the above is stated to be because of the fact that denizens of the State of Uttar Pradesh do not understand the concept of “Unlock-2”.

By Unlock-2, the experts of the Government had meant that even though economic and other activities would open up, people would have to be more careful. They would have to observe physical distancing in letter and spirit and also would have to stick to various precautions.

Bench has observed that that people are not at all bothered of the physical distancing norms and also about the taking of various precautions.

Primary Question

How the concept of physical distancing should be implemented and also as to how the wearing of masks should be enforced compulsorily?

Additional Advocate General, Manish Goyal assisted by A.K. Goyal submitted that they would be having a high level meeting with regard to the issue.

Bench adds on in the line of suggestions that incarceration and high fines be thought of.

We cannot understand why the Uttar Pradesh Epidemic Disease COVID-19 Regulations, 2020 is not being implemented properly which clearly envisages action under Section 188 of the Indian Penal Code. Also we cannot understand why Section 144 of the CrPC., which we are told is in force, is not being used.

Court has further asked Principal of Moti Lal Nehru Medical College to filed an affidavit giving details of the plan of the Plasma treatment and the availability of various medicines with them .

Additional Advocate General may also inform the Court about the policy of the State with regard to the initiation of home quarantine/isolation and about the facility of treatment which might be extended to patients through various private Nursing Homes.

While parting, Court stated that it expects that the denizens of U.P. become sensitive to the issue of physical distancing and would also help the administration by providing information about persons who come from out of State and were not observing physical distancing and were not quarantining themselves.

State of U.P. has been asked to strengthen its computer system in the administration as also their own establishments so that maximum work is done through Video Conferencing.

Present matter will be listed again on 20-07-2020. [Inhuman Condition at Quarantine Centres and for providing better treatment to Corona Positive v. State of U.P., 2020 SCC OnLine All 864 , decided on 13-07-2020]

COVID 19Legislation UpdatesNotifications

In view of the Corona outbreak and its adverse affect of the economy, there is need to boost the economy by liberalization of the Rules.

Administrator, UT , Chandigarh in exercise of the powers conferred by Section 28 of The Punjab Shops and Commercial Establishment Act, 1958 as applicable to the UT, Chandigarh by virtue of the Punjab Reorganization Act, 1966 exempts all shops and commercial establishments covered under the Act of 1958 for a period of 3 months.

Employers of the shops and commercial establishments shall be allowed to open their outlets on all days of week during the aforesaid period subject to the following conditions:

  • Ensure that all the provisions of the Act/Rules relating to employment, working conditions, rest, interval, weekly off days and other restrictions specified in the aforementioned Act of 1958 must be complied with;
  • Opening and closing hours of al these shops and commercial establishment will remain the same on all seven days of week as notified by Chandigarh Administration from time to time;
  • Rotation of employees engaged should be done, so that mandatory weekly rest be given to them;
  • Order issued separately under Disaster Management Act regarding odd-even formula in selected markets will continue to be in operation.

Exemption Under The Shops And Establishment Act In Chandigarh


Chandigarh Administration

Labour Department

Notification dt. 09-06-2020

COVID 19Hot Off The PressNews

“It is when the horizon is the darkest and human reason is beaten down to the ground that faith shines brightest and comes to our rescue.”

RBI Governor Shaktikanta Das drew hope and inspiration from the 1929 statement of the Father of the Nation, as he announced yet another set of nine measures to smoothen the flow of finance and preserve financial stability in the turbulent and uncertain times ushered in by the COVID-19 pandemic. This follows the earlier sets of measures announced by RBI on April 17, 2020 and on March 27, 2020.

Making the announcements through an online address, the Governor stated that we must have faith in India’s resilience and capacity to overcome all odds. Expressing the confidence that we will together triumph over today’s traumatic trials, the Governor spoke with a sense of calling. He noted that the situation warrants that “central banks have to answer the call to the frontline in defence of the economy”.

Repo rate reduced by 40 basis points

The Governor has announced a reduction in major policy rates, in order to revive growth and mitigate the impact of COVID-19, while ensuring that inflation remains within the target. The repo rate has been reduced by 40 basis points from 4.4% to 4.0%. The Marginal Standing Facility rate and the Bank rate have been reduced from 4.65% to 4.25%. The reverse repo rate has been reduced from 3.75% to 3.35%.

 “Judging that the risks to growth are acute, while the risks to inflation are likely to be short-lived, the Monetary Policy Committee believes that it is essential now to instil confidence and ease financial conditions further. This will facilitate the flow of funds at affordable rates and rekindle investment impulses. It is in this context that the MPC voted to reduce the policy repo rate by 40 basis points from 4.4 per cent to 4.0 per cent” the Governor said.

Shri Das also announced a set of regulatory and developmental measures which he said complement the reduction in the policy rate and also strengthen each other.

He reiterated that the goals of the measures being announced are:

  • to keep the financial system and financial markets sound, liquid and smoothly functioning
  • to ensure access to finance to all, especially those that tend to get excluded by financial markets
  • to preserve financial stability

Measures to Improve the Functioning of Markets

  • Refinance Facility to SIDBI extended for another 90 days

In order to enable increased supply of affordable credit to small industries, the RBI had, on April 17, 2020, announced a special refinance facility of ?15,000 crore to SIDBI at RBI’s policy repo rate for a period of 90 days. This facility has now been extended by another 90 days.

  • Relaxation of Rules for Foreign Portfolio Investment under Voluntary Retention Route

The VRR is an investment window provided by RBI to Foreign Portfolio Investors, which provides easier rules in return for a commitment to make higher investments. The rules stipulate that at least 75% of the allotted investment limit be invested within three months; considering the difficulties being faced by investors and their custodians, the time limit has now been revised to six months.

Measures to Support Exports and Imports

  • Exporters can now Avail Bank Loans for Higher Period

The maximum permissible period of pre-shipment and post-shipment export credit sanctioned by banks to exporters has been increased from the existing one year to 15 months, for disbursements made up to July 31, 2020.

  • Loan facility to EXIM Bank

The Governor has announced a line of credit of ?15,000 crore to the EXIM Bank, for financing, facilitating and promoting India’s foreign trade. The loan facility has been given for a period of 90 days, with a provision to extend it by one year. The loan is being given in order to enable the bank to meet its foreign currency resource requirements, especially in availing a US dollar swap facility.

  • More time for Importers to Pay for Imports

The time period for import payments against normal imports (i.e. excluding import of gold/diamonds and precious stones/jewellery) into India has been extended from six months to twelve months from the date of shipment. This will be applicable for imports made on or before July 31, 2020.

Measures to Ease Financial Stress

  • Extension of Regulatory Measures by another 3 Months

The RBI has extended the applicability of certain regulatory measures announced earlier, by another three months from June 1, 2020 till August 31, 2020. These measures will now be applicable for a total period of six months (i.e. from March 1, 2020 to August 31, 2020). The aforesaid regulatory measures are: (a) 3-month moratorium on term loan instalments; (b) 3-month deferment of interest on working capital facilities; (c) easing of working capital financing requirements by reducing margins or reassessment of working capital cycle; (d) exemption from being classified as ‘defaulter’ in supervisory reporting and reporting to credit information companies; (e) extension of resolution timelines for stressed assets; and (f) asset classification standstill by excluding the moratorium period of 3 months, etc. by lending institutions. The lending institutions have been permitted to restore the margins for working capital to their original levels by March 31, 2021. Similarly, the measures pertaining to reassessment of working capital cycle are being extended up to March 31, 2021.

  • Provision to convert Interest on Working Capital into Interest Term Loan

Lending institutions have been allowed to convert the accumulated interest on working capital facilities over the total deferment period of 6 months (i.e. March 1, 2020 up to August 31, 2020) into a funded interest term loan, to be fully repaid during the course of the current financial year, ending March 31, 2021.

  • Increase of Group Exposure Limit to Increase Fund Flow to Corporates

The maximum credit which banks can extend to a particular corporate group has been increased from 25% to 30% of the bank’s eligible capital base. This has been done in order to enable corporates to meet their funding requirements from banks, in view of the current difficulties being faced by corporates in raising money from the markets. The increased limit will be applicable up to June 30, 2021.

Measures to ease financial constraints faced by State Governments

  • States allowed to borrow more from Consolidated Sinking Fund

The Consolidated Sinking Fund is being maintained by state governments as a buffer for repayment of their liabilities. The rules governing withdrawal from this Fund have now been relaxed, in order to enable states to enable them to repay their borrowings from the market, which become due in 2020-21. The change in withdrawal norms will come into force with immediate effect and will remain valid till March 31, 2021. The Governor added that the relaxation is being done, while ensuring that depletion of the Fund balance is done prudently.

Assessment of Economy

Presenting an assessment of the global economy, the Governor said that the macroeconomic and financial conditions are austere by all counts. He stated that the global economy is headed inexorably into a recession.

The domestic economy too has been severely impacted by the two-month lockdown, said the Governor. “The top 6 industrialised states that account for about 60 per cent of industrial output are largely in red or orange zones.” Demand has collapsed, production has come down, taking a toll on fiscal revenues. Private consumption has been dealt a severe blow.

The Governor said that agriculture and allied activities have provided a beacon of hope, amidst this encircling gloom. A ray of hope also comes from the forecast of a normal southwest monsoon in 2020 by the India Meteorological Department.

The Governor recalled that based on the incomplete data made available, food inflation, which had come down from its January 2020 peak for the second successive month in March, suddenly reversed and increased to 8.6% in April as supply disruptions took their toll, despite the current reduction in demand. India’s merchandise exports and imports suffered their worst slump in the last 30 years as COVID-19 paralysed world production and demand.

The Governor informed that the Monetary Policy Committee assessed that the inflation outlook is highly uncertain. The supply shock to food prices in April may persist for the next few months, depending upon the state of lockdown and the time taken to restore supply chains after relaxation. The elevated level of pulses inflation is worrisome, and warrants timely and swift supply management interventions, including a reappraisal of import duties.

Speaking of the road ahead for the economy, the Governor noted that the combined impact of demand compression and supply disruption will depress economic activity in the first half of the year. Assuming that economic activity gets restored in a phased manner, especially in the second half of this year, and taking into consideration favourable base effects, it is expected that the combination of fiscal, monetary and administrative measures being currently undertaken would create conditions for a gradual revival in activity in the second half of 2020-21.

Given all these uncertainties, GDP growth in 2020-21 is estimated to remain in negative territory, with some pick-up in growth impulses from H2: 2020-21 onwards. Much will depend on how quickly the COVID curve flattens and begins to moderate.


Reserve Bank of India

[Press Release dt. 22-05-2020]

[Source: PIB]

Business NewsCOVID 19Hot Off The PressNews

Background:

Amidst the Corona crisis, PM announced  a special economic package with a new resolution. This economic package will serve as an important link in the ‘AtmaNirbhar Bharat Abhiyan” (Self Reliant India Campaign)‘.

What the Prime Minister said about the package?

In the recent past economic announcements made by the government related to the Corona crisis, which were the decisions of the Reserve Bank. The economic package that is being announced today, if added, comes to around Rs. 20 lakh crores. This package is about 10 percent of India’s GDP. With this various sections of the country and those linked to economic system will get support and strength of 20 lakh crore rupees. This package will give a new impetus to the development journey of the country in 2020 and a new direction to the Self-reliant India campaign. In order to prove the resolve of a self-reliant India, Land, Labor, Liquidity and Laws all have been emphasized in this package.

This economic package is for our cottage industry, home industry, our small-scale industry, our MSME, which is a source of livelihood for millions of people, which is the strong foundation of our resolve for a self-reliant India. This economic package is for that labourer of the country, for the farmers of the country who are working day and night for the countrymen in every situation, every season. This economic package is for the middle class of our country, which pays taxes honestly and contributes to the development of the country. This economic package is for Indian industries, which are determined to give a boost to the economic potential of India. Starting tomorrow, over the next few days, the Finance Minister will give you detailed information about this economic package inspired by the ‘Self-reliant India campaign’.

First press conference on the decoding Rs 20 Lakh Crore Package held today.

LIVE UPDATES

  • Focal point: Liquidity, Labour, Law and Land.
  • 6 Major steps for MSMEs
  • Collateral free Automatic Loans upto Rs 3 lakh Crores
  • 100 % credit guarantee
  • Additional Funds for MSME revival
  • Loans to be given till October 31st
  • Rupees 20 Crore for stressed MSMEs
  • 50,000 Crore equity to be infused for viable and potential MSMEs
  • New Definition of MSMEs — Investment can be upto 1 Cr and turnover upto 5 Crore
  • Global tender to be allowed upto Rs 20 Crores
  • Other interventions for MSMEs
  • Rs 2500 crores EPF support for businesses and Workers for 3 months
  • EPF contribution reduced for Business and Workers for 3 months — Rs 6750 Crores
  • Rs 30,000 crores liquidity facility for NBFC/HCs/MFIs
  • Rs 45,000 Crores Partial Credit Guarantee Scheme 2.0 for NBFC
  • Rs 90,000 CR liquidity injection for DISCOMs
  • Relief to contractors
  • Extension of registration and completion date of real estate projects under RERA; No individual applications needed; Suo Moto be done; Registered projects expiring on or after 25th March
  • Rs 50,000 crores Liquidity through TDS/TCS reductions till March 2021
  • Tax filing due date extended to 30th November, 2020
  • Pending refunds to charitable trusts and non-corporate businesses & professions including proprietorship, partnership, LLP and Co-operatives shall be issued immediately.
  • Due date of all income tax return for FY2019-20 extended from 31st July, 2020 & 31st October, 2020 to 30th November, 2020 and Tax audit from 30th September, 2020 to 31st October, 2020.
  • Date of Assessments getting barred on 30th September, 2020 extended to 31st December, 2020 and those getting barred on 31st March, 2021 will be extended to 30th September, 2021.
  • Period of Vivad se Vishwas Scheme for making payment without additional amount will be extended to 31st December, 2020