COVID 19

The UK government has released a new guidance for international travel on September 21, 2021. The key points of the guidance are:

 

  • UK government has listed the various countries to be eligible to enter UK under an approved vaccination programme in the UK, Europe, USA or UK vaccine programme overseas with a full course of the Oxford/AstraZeneca, Pfizer BioNTech, Moderna or Janssen vaccines from a relevant public health body in Australia, Antigua and Barbuda, Barbados, Bahrain, Brunei, Canada, Dominica, Israel, Japan, Kuwait, Malaysia, New Zealand, Qatar, Saudi Arabia, Singapore, South Korea, Taiwan or the United Arab Emirates (UAE).
  • They have Formulated a list of following vaccines as approved vaccines:
    1. AstraZeneca Covishield,
    2. AstraZeneca Vaxzevria
    3. Moderna Takeda.
  • From October 4, the rules for international travel will change from the red, amber, green classification of countries to a single red list of countries. For travel from countries not on the red list, the rules will depend only the traveller’s vaccination status.
  • One must have had a complete course of an approved vaccine at least 14 days before you arrive in UK.
  • The fully vaccinated passengers could replace day 2 PCR tests with cheaper lateral flow tests – from the end of October – and no longer need to take pre-departure tests (PDTs).
  • Until 4 October, mixed vaccines are only permitted if you are vaccinated under the UK, Europe, USA or UK overseas vaccination programme. The rules for fully vaccinated people will also apply if you are either:
    1. Less than 18 years and resident in the UK or one of the listed countries or territories with approved vaccination programmes
    2. taking part in an approved COVID-19 vaccine trial in the UK, Australia, Canada or the USA

 

If you qualify as fully vaccinated, you will have to:

  1. book and pay for a day 2 COVID-19 test – to be taken after arrival in England
  2. complete your passenger locator form – any time in the 48 hours before you arrive in England
  3. take a COVID-19 test on or before day 2, after you arrive in England
  • Under the new rules, the pre-departure test and 8th day COVID-19 test will not be required.

Travel from INDIA:

The Government of United Kingdom has included AstraZeneca Covishield in its list of accepted vaccines against Covid-19. Regardless of the vaccination status, travellers from India have to take a pre-departure test, and Covid-19 test on or before Day 2nd on or after Day 8, and self-isolate for 10 days.

For details, click HERE and HERE.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Migrant
COVID 19Op EdsOP. ED.

OVERVIEW OF THE REPORT


The outbreak of the Coronavirus pandemic brought life to a standstill worldwide. It exposed the inadequacy of global healthcare infrastructure and questioned existing capabilities to meet exigencies of such nature. While nations were imposing lockdowns and enforcing social distancing norms, India was battling a unique problem of its own: the migrant workers’ crisis induced by Covid-19.

Internal migration, including both inter-state and intra-state migration, is prevalent in India. It is a common phenomenon for the Indian rural population to move to urban areas in search of better job opportunities. The 2011 Census of India pegs the total number of internal migrants in the country at a staggering 139 million.1 The announcement of a sudden nationwide lockdown meant that these migrant workers were stranded in their host states of work, far away from their homes and families. With the transport facilities being discontinued, these migrant workers had nowhere to go. Most of them had already lost the means to sustain themselves as a result of the shutting down of workplaces. After much hue and cry, the government intervened and introduced transportation facilities to help them reach their home states. However, no concrete steps were taken to ensure that the returned workers found employment opportunities. The state failed to recognise that mere transportation of the migrant workers was not sufficient. It was equally important to ensure that such workers were able to sustain themselves and lead a life of dignity.


OBJECTIVES OF THIS STUDY


The M.P. Migrant Workers Project was initiated with the objective of filling the existing data gap in terms of the current employment status and living conditions of migrant labourers who returned to Madhya Pradesh during the lockdown. It also aims to know the extent of state intervention and aid provided to these workers throughout the process – starting from their journey from host states to settling in their respective villages.

Besides aiming to make us aware of the ground realities, the findings of this report are important as they hold the potential to guide policy decisions and legislations concerning migrant workers. A 360-degree analysis of the current approach will help us identify the strengths and weaknesses of the existing system and help us be better equipped to deal with such situations in the future.


METHODOLOGY


The observations from the empirical study have been made based on data collected directly from about 2943 migrant workers spread across 52 districts of Madhya Pradesh.

We started the exercise with the preparation of a comprehensive questionnaire containing around 50 questions on basic details of the respondents, their condition before Covid, their travel experience, current situation, financial assistance received and so on.

Before we started a full-fledged empirical study, we conducted sample callings by contacting around 250 people chosen at random. Our volunteers could get around 25 responses out of this list which suggested a 10-12% conversion rate of getting a response i.e., for every 10 entries, there was a possibility of getting only one legitimate response.

Once the final questionnaire was finalised, we entered the response recording stage. Our team contacted a tentative number of 25000-30,000 people. However, roughly around 10% i.e., a total of 3147 responses were recorded in all districts of Madhya Pradesh. The reasons for this low conversion rate are multifold, with the primary reason being incorrect numbers of migrants and multiple migrants registering through the same phone number. In some cases, calls were picked by residents of Maharashtra who informed us that someone registered through their number when the lockdown was going on.

Out of these 3147 responses, 2943 responses were confirmed to be legitimate migrant workers. The remaining entries were rendered invalid because of several reasons including but not limited to multiplicity of similar entries, incomplete information, error in identification of migrant workers etc. A large number of people contacted by our team turned out to be IT professionals or engineers particularly in Ujjain, Bhopal and Indore and hence we could not cover 100 entries in these three districts.


EXECUTIVE SUMMARY


  1. Demographical information: Of the total surveyed respondents,
    1. Category – Around 34% of the respondents belonged to the General category, followed by 31% belonging to the Other Backward Class category. Around 15% of the respondents were Scheduled Castes and another 15% identified themselves as Scheduled Tribes.
    2. Gender – 92% of the total respondents were males and 8% were females. 4 respondents preferred not to disclose their gender.
    3. Age – Majority of the respondents (83%) belonged to the working-age group of 15 to 34 years. Within that, the highest number (around 45%) fell in the range of 25 to 34 years.
  2. Employment trends: With respect to the status of employment, the majority of respondents (around 56%) admitted that they were unemployed since their return to Madhya Pradesh.Furthermore, respondents from the General category had the highest chances of being employed, and respondents belonging to the Scheduled Tribe category were least likely to be employed. With respect to gender, males stood a higher chance of finding jobs post-Covid, as compared to their female counterparts.The findings of this report thus bring forth the continuing relevance of factors like gender and caste/category that plague employment opportunities, especially in rural India.
  3. Industry of engagement-based analysis: During the pre-Covid era, the majority of respondents (around 40%) were engaged in the infrastructure development industry. This changed during the post-Covid era, wherein a majority of the employed respondents (around 37%) worked as labourers. It is pertinent to note that only 10% of the total respondents were employed in the labour industry in the pre-Covid period as compared to the 37% after the pandemic.This engagement shift in favour of the labour/worker industry is worrying. As per the responses received, the labour industry has been one of the least paying industries both before and after Covid. More than 60% of the respondents engaged in the labour industry earned below-average income2 at any given point in time.
  4. Positive correlation between education and employment: A combined analysis of the education and employment status responses before Covid indicated that more educated respondents secured better-paying jobs. It was observed that respondents who were educated were more likely to be falling in higher-income brackets – around 25% of the respondents earning more than Rs. 650/day were graduates.However, interestingly, there was no perceptible correlation between the employment status of the respondent’s post lockdown and their educational qualifications indicating widespread unemployment stress amongst people with varying education qualifications alike.
  5. Trends in income: The post-pandemic period saw a dip in the average income of the respondents. The data is especially alarming for lower-income earners, as only 7% of the respondents earned less than Rs. 250 per day pre-pandemic, as compared to 35% in the post-pandemic period.
  6. Gender disparity and pay gap: The data collected reveals that female respondents were more likely to be given daily wages than employment with a fixed income. Even before Covid, the share of female respondents employed as daily wage earners was around 12% more than their male counterparts.The above finding is relevant in light of the positive correlation established between the kind of employment (fixed-term v. daily wage jobs) and the income associated with each of these types. As per the responses received, people employed in fixed-term jobs were more likely to earn an above-average income.It is also pertinent to note that majority of female respondents (around 70%) formed a part of the average or below average income groups during the post-pandemic period.
  7. Shortfalls in government policies and Covid-specific initiatives:

(a) Transportation :
In the wake of the Covid pandemic, the Madhya Pradesh (M.P.) government introduced measures to aid the transportation of migrant workers. In furtherance of the same, an M.P. Migrant workers online registration portal was launched allowing stranded migrant workers to register themselves and avail shramik trains and bus services run by the state government.

Majority of the respondents (around 70%) stated that they registered themselves through the online registration portals. Around 57% of the respondents further stated that their travel tickets were entirely funded by the state government. Despite these measures being useful for the majority, there were complaints regarding lack of transport coordination between the drop-off railway stations and place of residence. Resultantly, around 12.5% of the respondents admitted that they were forced to walk back to their villages (either some part of the journey or the entire journey) in the absence of state-sponsored alternatives.

(b)  Scheme coverage

Despite various employment schemes introduced by different governments, it was observed that only around 1% of the respondents were covered such schemes in the state of Maharashtra. Even after the pandemic, the coverage of state employment schemes remained dissatisfactory. Only 1.7% of the total employed respondents said that they found employment under one of the employment schemes in M.P. Interestingly, there were no female beneficiaries under the M.P. specific employment schemes.

(c)  Monetary assistance
The M.P. government had also announced a Direct Benefit Transfer (DBT) scheme under which it promised Rs. 1000 to each returning migrant worker as financial aid. However, this initiative remained largely unimplemented with 88.5% of the respondents stating that no such amount was ever transferred to them. Amongst the 11.5% who did receive DBT, many mentioned not receiving the full amount.

(d)  Supreme Court directives for resettlement and future employment
In June 2020, the Supreme Court mandated all states to maintain records of incoming migrant workers and document crucial details such as their names, address, nature of their skill, and place of earlier employment. The state officials were further required to set up counselling centres and reach out to returning workers for employment opportunities.

Around 64% of the respondents said that their basic details were registered by government officials while entering M.P. However, majority of respondents (around 87%) stated that they were never contacted by government representatives in relation to any possible employment opportunities. Amongst the very few respondents who were approached by state representatives, around 95% said that the information shared by such officials was not useful from an employment perspective.

Furthermore, the majority (around 74%) also stated that no awareness/sensitisation programs were conducted and that state counselling centres, as required under the Supreme Court directives, were also not set up.

(e)  Policy failure and implementation gap
Despite the government’s noble intent of helping incoming migrant workers by setting up online portals for registration, an analysis of this measure from a policy perspective yields that such portals were not helpful.

Almost half of the respondents (50%) said that they did not possess smartphones or any other device with an internet connection to register themselves on these portals. Out of the respondents registered for travel, around 60% admitted that they were helped by government officials and civil societies for online registration.

The non-availability of internet and/or smart phones, and the glaring digital divide, had far-reaching implications on the employment opportunities of returned workers.

The M.P. government had also introduced a ‘Rozgar Setu’ portal to provide employment to incoming workers. Despite the government’s efforts, around 56% of the respondents remained unemployed even after several months of return to M.P. This could be attributed to several reasons, including but not limited to: (i) lack of assistance/support from authorities in the form of counselling centres/ awareness programs (as observed above); (ii) demotivation for employers to hire workers from a government platform as that would have subjected them to greater scrutiny; and (iii) improper measures introduced by the government (introducing online measures, a pre-requisite for which are smart phones and an internet connection, may not have been the policy decision in view of the fact that the target audience was vulnerable migrant workers).


ANALYSIS OF LABOUR LEGISLATIONS IN INDIA


The predicament of labourers during the pandemic elucidated gaps in the Indian labour law regime. The existing labour laws of India have been critiqued on several occasions in the past for being complex and archaic, with inconsistent provisions. Many of these criticisms were in line with the data findings of this report, highlighting the incompetence of extant laws in ensuring a safety net for migrant workers. None of the existing labour legislations in India adequately deal with inequalities faced by migrant workers employed in the informal sector on account of their category/caste or education.

In light of the above, this report identifies and highlights loopholes in the existing labour law regime which have a direct bearing on Indian migrant workers.

1. Limitations of applicable legislations: India has a limited number of legislations covering migrant workers employed in the informal sector. The applicability of such sparse laws is also limited because of the manner in which these laws are worded.

For instance, Section 2(e) of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 defines inter-state migrant workers as those recruited by contractors alone. This narrow interpretation of the term ‘inter-state migrant workers’ excludes a large number of workers from its benefits who migrate on their own without the assistance of a contractor.

Similarly, the Madhya Pradesh Unorganised Workers Welfare Act, 2003 is one of the very few labour legislations regulating the informal sector but is not fully exploited on account of the benefits being available only to members of the ‘welfare board’ established under the Act. As per the provisions of the Act, only those workers who reside in an area of MP for at least 12 months are qualified to be members of the welfare board. Such a requirement automatically disentitles migrant workers travelling to other states from availing benefits under the Act.

2. Payment of wages below the minimum wage rate: As per Section 13(1)(b) of the Inter-state Migrant Workmen Act 1979, an inter-state migrant workman has to be mandatorily paid as per wages fixed under the Minimum Wages Act, 1948.

The minimum wage rate in India differs from state to state. In the state of Maharashtra, the minimum wage payable to unskilled workers is fixed at Rs. 381.54 per day. However, approximately 42% of the surveyed respondents received wages at rates lower than Rs. 350 per day while they were in Maharashtra. Even after their return to M.P., 37% of the employed respondents received wages at rates lower than minimum wages fixed for unskilled workers for the state of M.P.

3. Lack of social security and protection: The Unorganised Workers’ Social Security Act, 2008 directs the Central Government to form schemes for unorganised workers on matters relating to life and disability cover, health and maternity benefits, old age protection, and any other benefit as may be determined by the state government. These benefits aim to provide a minimum level of social security to workers in the unorganised sector.

Despite such provisions, the migrant workers lacked adequate social cover. Even welfare schemes announced at the state level, such as the M.P. government’s initiative of monetary assistance to returning workers, were not implemented properly.

There could be several reasons for paltry implementation of welfare schemes both at the central and state level, including but not limited to: (i) lack of data availability on migrant workers, (ii) lack of political and administrative will, (iii) articulation of schemes as benefits as opposed to legally enforceable rights, (iv) tedious and complex process for registration of workers (which require state government resources and manpower), (v) inadequate sensitisation.

Resultantly, migrant workers are unable to access these benefits as they fall in an administrative blind spot, wherein they neither have information on these schemes nor the necessary documents to avail them.


THE GENDER AND CATEGORY QUESTION


The term ‘migrant worker’ is generally used as a gender-neutral and caste-neutral term. Resultantly, while addressing issues relating to migrant workers, problems specific to the gender and caste/category of a worker are often overlooked.

However, in reality, gender and category of workers shape every stage of their migration experience. Understanding and addressing the gender and category-specific problems faced by migrant workers is crucial to ensure their amelioration in the truest sense. Some of these specific issues have been identified as under:

1. Menstrual hygiene – During the pandemic period, it was observed that menstrual hygiene products were largely unavailable for female migrant workers during their journey. The issue is pertinent as the sample size illustrates that almost 99% of the female respondents fell in the age bracket of 15 to 54 years which is also the menstruating age for women. Some female migrant workers complained of facing hardships during their travel on account of menstruation and further developing Urinary Tract Infection (UTI) because of the unhygienic conditions.

2. Education, employment and gender – An analysis of the responses received reveals that female respondents not only had lower levels of education across various categories, but they were also more likely to get daily wage jobs and less income as compared to their male counterparts.

3. Education, employment and caste/category: The survey data indicates that General and Other Backward Class category respondents had better access to education, as compared to respondents from Scheduled Caste and Scheduled Tribe categories. However, this inequality in access to education did not translate into inequality in employment, especially in low income jobs. During the pre-Covid era, it was observed that all categories were equally represented in terms of employment. This however changed in the post-Covid period, where the Covid induced uncertainty affected the Scheduled Caste and Scheduled Tribe communities more as compared to General and Other Backward Class category respondents.

We need redistributive, equalizing, and holistic policies and legislations to address the various issues faced by migrant workers. The conceptual framework of labour, migration and social-policy making should address gender and category concerns at all levels (including but not limited to education, healthcare, digital divide).


Report Prepared by: Rakshita Agarwal (NLUO), Rohit Sharma (NUJS), Lakshmi Menon (SLS Hyderabad), Niharika Tiwari (Ashoka University), Shilpa Shankar (NALSAR) and Saiyed Kamil (NUJS)

1 Data on Migration 2011, Ministry of Home Affairs, Government of India, Available at https://censusindia.gov.in/2011census/migration.html, Last seen on 24/04/2021.

2 For the purposes of this part, average income is understood to be between Rs. 350-Rs.400 per day.


Read more:

The full report is accessible here: https://bit.ly/3k9RNbP

Case BriefsSupreme Court

Supreme Court: In the 2012 incident wherein two fishermen were killed while fishing off the coast of Kerala after allegedly two Italian Military Naval officials fired at them from a passing ship, the bench of Indira Banerjee and MR Shah*, JJ has closed all the proceedings against the marines in India including criminal proceedings in exercise of powers under Article 142 of the Constitution of India.

Criminal proceedings were initiated against the marines after the Kerala police apprehended them and two months after the incident, the Republic of Italy made ex-gratia payment of compensation to the legal heirs of the deceased persons. The vessel, from which the shots were fired, was allowed to sail away, subject to certain terms and conditions along with all 24 crew members, only after the order passed by the Supreme Court in May, 2012. The unfortunate incident had occurred in February, 2012.

Important facts that persuaded the Court to close the proceedings 

  • the Arbitral Tribunal constituted under Annex VII of UNCLOS has delivered its award dated 21.05.2020 under which the Republic of Italy has agreed to pay the compensation of Rs. Ten crores, over and above the amount of ex-gratia amount already paid
  • the Arbitral Tribunal has also duly recorded Republic of Italy’s commitment that following the award Italy will resume its criminal investigation into the incident of 15.02.2012.

As an aftermath of the Arbitral Tribunal’s award, the Republic of Italy deposited the said amount of Rs. Ten Crores and the State of Kerala as well as the heirs of the deceased fishermen and even the owner of the boat which was damaged agreed to accept the award.

The Court was, hence, of the opinion that

“…the amount of compensation of Rs. Ten Crores over and above the ex-gratia amount of compensation already paid to the heirs of the deceased fishermen offered and deposited by the Republic of Italy, deposited pursuant to award dated 21.05.2020 passed by the Arbitral Tribunal can be said to be a reasonable amount of compensation and can be said to be in the interest of heirs of the deceased, we are of the view that this is a fit case to close all the proceedings in India including criminal proceedings in exercise of powers under Article 142 of the Constitution of India.”

It was hence, directed that Rs. Ten Crores now lying with the Supreme Court Registry be transferred to the High Court of Kerala, out of which Rupees Four Crores be paid to the heirs of each deceased and Rs. Two crores be paid to the owner of the boat – St. Antony.

However, the Court clarified that while disbursing the amount of compensation to the heirs of the deceased fishermen, i.e, Rs. Four Crores to the dependents/heirs of each deceased, their interest is also required to be protected so that the amount of compensation paid to them is not frittered away, by investing the amount in the name of the dependents/heirs of each deceased in a Fixed Deposit in a nationalised bank for some time and they will be paid the periodical interest accrued thereon.

The Court, hence, asked the Chief Justice of the Kerala High Court to nominate a Judge to pass appropriate order of disbursement/investment of the amount to be paid to the heirs of each deceased (Rupees Four Crores each) so as to protect the interest of the heirs and ensure that the compensation is duly received by the heirs and not diverted/misappropriated. The order of disbursement/investment is to be passed after hearing the heirs of each deceased and appropriate order be passed, protecting the best interest of the heirs of each deceased.

[Massimilano Latorre v. Union of India, 2021 SCC OnLine SC 428, decided on 15.06.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

For Petitioner(s): Mr. Suhail Dutt, Sr. Adv.

Mr. Diljeet titus, Adv.

Mr. Jagjit Singh Chhabra, AOR

Mr. Ujjwal Sharma, Adv.

Mr. Baljit Singh Kalha, Adv.

Mr. Ninad Laud, Adv.

Mr. Akshat Bhatnagar, Adv.

Ms. Ananyaa Mazumdar, Adv.

Mr. Saksham Maheshwari, Adv.

For Respondent(s): Mr. Tushar Mehta, SG

Mr. Aman Lekhi, ASG

Mr. S.A. Haseeb, Adv.

Mr. Suhashini Sen, Adv.

Mr. Rajat Nair, Adv.

Mr. B. V. Balaram Das, AOR

 Mr. G. Prakash, AOR

Mr. Jishnu M.L., Adv.

Ms. Priyanka Prakash, Adv.

Ms. Beena Prakash, Adv.

 Mr. C. Unnikrishnan, Adv.

Mr. A. Karthik, AOR

Ms. Smrithi Suresh, Adv.

Ms. Sreepriya K., Adv.

Mr. Arsh Khan, Adv.

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Special Purpose Acquisition Company (SPACs) have been gaining popularity since the past few years in the international capital markets regime. SPACs have been in existence for a very long time, however, the growth in SPACs that the markets have seen recently especially in the United States of America is tremendous. In India, SPACs have been a hot topic ever since the renewable energy giant ReNew Power has used the SPAC strategy to get itself listed in the Nasdaq exchange.

A SPAC is a special purpose acquisition company formed in order to raise capital funds through initial public offering (IPO). These are also commonly known as blank cheque companies. A SPAC is initially a shell corporation and the amount generated from the IPO is then stored in a trust fund account until the target operating business is identified. After the target company is identified, the consent of the SPAC’s shareholders is sought and those shareholders who do not want to sell their holdings are given an option to redeem them. Finally, the de-SPAC phase begins, wherein the acquisition transaction is completed.

The SPAC regime in India is once again in talks, especially after ReNew Power’s combination with RMG Acquisition Corporation II — which is a US-based SPAC Companies like Grofers, Flipkart, Videocon D2H and the travel agency Yatra have also indulged in or are in talks of indulging into US based SPACs, wherein the acquisitions would be multi-million-dollar deals. SPACs are generally used by start-ups to get listed easily. In light of these circumstances, it is imminent for India to redesign the SPAC regulations and GoPro SPAC, which currently is not the scenario in India.

Regulatory framework in India

  1. Companies Act, 2013[1]: After demonetisation, the Government has been keeping shell corporations under their thumbs. A Parliamentary Committee in 2018 had asked the Government to provide a proper definition for the term “shell corporation” to avoid any form of legal ambiguity to avoid unnecessary litigation. It generally takes 18-24 months to complete SPAC transactions. However, as per Section 248[2] of the Companies Act, 2013, the Registrar of Companies can eliminate a company’s name from registration if they fail to commence business operations within 12 months of its incorporation. This would lead to a lot of legal issues for the directors and promoters of the corporation. But, this problem can be easily avoided by revisiting the regulations and introducing amendments in Companies Act, providing exemptions to SPACs if the purpose of their registration is already made clear to the Registrar of the Companies, thereby clearing up any ambiguity which might arise due to the business operations not being able to commence within 1 year of the SPAC’s incorporation.
  2. Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009[3]: The SEBI regulations do not provide any relief to SPACs as well. According to Section 6(1)[4] of ICDR Regulations, as amended in 2018, state the eligibility criteria for public listing. For an IPO, a company must have[5]:

(i) Net tangible assets of at least Rs 3 crore for the preceding 3 years.

(ii) Average operation profits of the corporation must be at least Rs 15 crores during the preceding three years.

(iii) The net worth of the corporation must be at least Rs 1 crore in each of the preceding years.

SPACs definitely cannot meet these requirements and thereby get no acceptance under the SEBI regulations. SEBI has, however, since 2017 taken a leaf out of USA’s book and is starting to give recognition to SPACs. The Securities and Exchange Commission (SEC) of the United States of America supervises all SPAC transactions, SEBI must also take this into consideration and come up with a framework to regulate all SPAC transactions in India. This will lead to better augmentation of start-ups as SPACs are much more lucrative to investors than traditional IPOs. To achieve this, SEBI has mobilised a Committee to scrutinise the feasibility of pro-SPAC regulations in India.

Risk factors involved and the possible future of SPACs

Although, SPACs leads to easier and faster listing of start-ups, however, it means that the cumbersome and expensive listing process is not followed, thereby making it a huge risk for retail investors. As India lacks a specific framework for SPACs, the redemption of shares by the listed companies might not be permissible under the current regulations. Once again, India could take inspiration from the United States of America and bring about amendments in regulations to enable the investors to either redeem their holdings or claim a refund of the amount they have invested prior to the acquisition of the target corporation.

Another massive regulatory challenge that SPACs face in India are the stamp duty requirements. The SPAC route of listing is taken by start-ups as they are cost-effective in nature. However, the transactions through SPACs occur by way of reverse merger, which attracts heavy stamp duties. Due to this, the scheme of mergers also has to be floated and affirmed by the tribunals, which then leads to a lot of compliance issues of Companies Act, 2013. A possible exemption to SPAC transactions vis-à-vis stamp duties, could be an effective way of promoting the SPAC route of listing.

The abovementioned issues are further complemented by the RBI regulations for inbound mergers. It is most likely for the merger between SPAC and target company to be a form of cross-border merger. Therefore, this attracts various regulations as prescribed by RBI while dealing with inbound mergers. It is necessary for the transferee company to issue or transfer security to persons which are not residing in India as per the sectoral caps provided by the RBI guidelines. However, since SPACs do not have a specific business model to operate upon, the sector to which such SPAC belongs is subject to conjecture and speculation.

The taxation regime of India is also anti-SPAC in many ways. For example, the Indian tax authorities do not allow foreign listed SPACs to acquire Indian start-ups without capital gain tax. So, the capital gain is ensued at the hands of the shareholders. It is necessary to allow SPAC transactions in India. This would mean that both the SPAC and the target corporation would be based in India, therefore, such transaction would take the form of merger under a scheme of amalgamation. Such transactions are tax neutral in nature. This will also make sure that no tax liability is levied upon the shareholders involved.

On 10-3-2021 the consultation paper[6] on proposed International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 was released. The provisions in this regulation do talk about SPAC listings under Indian Financial System Code (IFSC). As per the consultation paper, for a SPAC listing to be valid, the minimum amount of the offer should be USD 50 million. However, there is only one IFSC in India to date, in GIFT City, Gujarat, which is also not fully established and is still in the development phase.

Conclusion

It is about time for the Indian market regulators to adapt with the dynamics of modern market instruments and come up with pro-SPAC regulations, if India is to achieve its full capital market potential. Other Asian markets like Hong Kong and Singapore are already working on the regulations regarding SPAC listings and countries like USA, Australia, etc., have already seen a huge rise in SPAC listings eversince they came up with stringent regulations governing SPACs. As per Mckinsey’s research paper[7], India’s capital market has been sized up at a USD 140 billion. Further, through SPAC listings, it would be possible for India to bring its capital market potential to the fullest and being able to release USD 100 billion worth of funding each year.

Implementing de-SPAC transactions might seem to be very challenging, but it is not impossible and through proper amendments in the existing regulations and by rectifying the compliance and cost issues, India will soon see a rise in the numbers of SPAC listings.


Pursuing BBA LLB with Business Law (Hons.), 4th-year student of law at ICFAI Law School, Dehradun, e-mail: karn1706@gmail.com.

[1] <http://www.scconline.com/DocumentLink/6ojfhdA2>.

[2] Ministry of Corporate Affairs, GoI, (last visited 13-5-2021) <https://www.mca.gov.in/SearchableActs/Section248.htm>.

[3] <http://www.scconline.com/DocumentLink/Xj38ATHA>.

[4] <http://www.scconline.com/DocumentLink/4u311Td3>.

[5] Securities and Exchange Board of India, (last amended on 8-1-2021) <https://www.sebi.gov.in/legal/regulations/jan-2020/securities-and-exchange-board-of-india-issue-of-capital-and-disclosure-requirements-regulations-2018-last-amended-on-january-08-2021-_41542.html>.

[6] International Financial Services Centres Authority (10-3-2021) <https://ifsca.gov.in/Viewer/ReportandPublication/9>.

[7] Nitin Jain, Fumiaki Katsuki, Akash Lal and Emmanuel Pitsilis, Deepening Capital Markets in Emerging Economies, (12-4-2017) <https://www.mckinsey.com/industries/financial-services/our-insights/deepening-capital-markets-in-emerging-economies>.

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Introduction

Innumerable controversies. Uncountable opinions. Infinite wars of words.

One name conjured.[1] Transgender.

The expression “transgender” is an umbrella term for persons whose gender identity, expression and orientation are incongruent with their biological sex. Despite persistent efforts by various activists round the globe, the lives of the people of the transgender community still continue to be deplorable when tested on the bedrock of human dignity. Fortunately, the judgment authored by Swaminathan, J. in Arunkumar v. Inspector General of Registration,[2] among others, somewhat transformed the lives of transgender people by conferring upon them a tangible civil right to enter into the social institution of marriage thereby making an endeavour to curb the centuries old insurmountable torture and injustices faced by this rather “insignificant” community. This is one of the many baby steps being taken by the Indian judiciary to blend and integrate the transgender community into India’s social institutions.

Brief Facts and Procedural History

Mr Arun Kumar (Petitioner 1) got married to Ms Sreeja (Petitioner 2), a transwoman, on 31-10-2018 at Arulmigu Sankara Rameshwarar Temple, Tuticorin according to Hindu rites and customs. The temple authorities though permitted the performance of the marriage declined to vouch for it. When they submitted a memorandum for registration of marriage before  Joint Registrar  II, Tuticorin, he refused to register the same on the ground that Petitioner 2 was a transwoman and cis-transgender marriage does not come under the purview of the Hindu Marriage Act, 1955[3] (hereinafter, “HMA”). The petitioners challenged this decision by preferring an appeal before the District Registrar, Tuticorin who in turn confirmed the Joint Registrar’s decision. This decision was challenged before the Madras High Court.

Issues

  1. Whether the term “bride”, as mentioned in Section 5, HMA meant only cis-women, or included transwomen also, given Sreeja is a transgender woman.
  2. Whether the State’s refusal to register the marriage of the petitioners violate Articles 14, 19(1)(a), 21 and 25 of the Constitution of India.
  3. Whether forced sex reassignment surgery (SRS) or intersex genital mutilation (IGM) of intersex children be banned.

Observations

I. Mythology and Traditional Lore

The Court highlighted the existence of transgender people by narrating the stories of Aravan,[4] Shikhandi,[5] Lord Ayyappa.[6] It went on to note that the existence of people outside gender binary is “acknowledged, explained and validated”[7] through these indigenous Hindu mythologies and traditional lores.

II. Modern Neuroscience

Just a decade or two back, being existing outside the gender binary was considered to be a symptom of pathology, disorder, or disability. However, the situation has somewhat changed now. Even neuroscience has accepted that there exist genders other than man and woman. The Court quoted an excerpt from Professor V.S. Ramchandran’s laudable book “The Tell-Tale Brain” explaining that sex, gender, and sexuality are not a binary rather a spectrum which is a continuum of identities/orientations/expressions ranging from woman/feminine to man/masculine and falling in the middle range of such continuum is not “undesirable or perverse”.[8]

III. Constitutional and Judicial Stance on Gender-Sex Dichotomy and Trans Community

A court of law is an abode of semantics-pragmatics interface. It interprets and sometimes interpolates words in the statutes. Swaminathan, J. reiterated that sex and gender are not interchangeable terms. He referenced to the judgment in NALSA[9], the Court’s purposive interpretation of Article 14 vis-à-vis third gender wherein the words “any person” include not only the anachronistic genders (man and woman) but also transgender, and therefore a transgender person is equally “entitled to legal protection of laws in all spheres of State activities”.[10] The Court went on to grandiloquently expound that any discrimination on the ground of sexual orientation or gender identity or attack on personal autonomy and right to self-perceived identity of a transgender person would be ultra vires Articles 14,[11] 19(1)(a),[12] and 21[13] of the Constitution of India which were extensively interpreted by the Court in NALSA[14] to encompass one’s gender identity also[15] and further recalled the principles affirmed in K.S. Puttaswamy v. Union of India[16] and Navtej Singh Johar v. Union of India[17] which dealt with the right to privacy and decriminalisation of consensual intercourse between same sex adults (Section 377 of Penal Code, 1860[18]) respectively. The Court, therefore, opined that the question whether a transgender person has a right to decide zir[19] self-identified gender is no longer res integra.[20]

IV. Jurisprudence Regarding Intersex People

The Court noted that the intersex[21] people have been covering a fatal and horrendous journey of life and languishing in the margins for decades and that there is an urgent need to bring them back from the margins to the “mainstream”. G.R. Swaminathan, J. in the judgment[22] directed the Government to launch a sustained awareness campaign to encourage parents to not be enveloped by embarrassment or shame on the birth of an intersex child.[23]  The judgment narrated the melancholic tale of hundreds of thousands of intersex infants who are denied the time and space to find their true identity and are forced by the parents to undergo sex reassignment surgery (SRS) or intersex genital mutilation (IGM) without providing an opportunity to such children to understand and identify their gender and sexuality. The Court referred to S. Amutha v. C. Manivanna Bhupathy[24] wherein K. Chandru, J. observed that “[u]ltimately, neither the father nor the mother can claim suzerainty over the child and in the ultimate analysis, the children are not the children of their parents”,[25] and held that the consent of the parent cannot be considered as the consent of the child. It also pointed out the grave breach of the directives issued in NALSA[26] wherein the Supreme Court directed that “no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity”.[27] Further, it discussed Article 39(f) of the Directive Principles of State Policy (DPSP)[28] to press upon the State’s duty to protect intersex children from exploitation caused by SRS or IGM and directed the Government of Tamil Nadu to issue a government order enshrining the Court’s directive in NALSA[29] directive to effectively ban sex reassignment surgeries on intersex infants and children.

V. “Bride” under Section 5 of Hindu Marriage Act, 1955

The writ petitioners in the instant case profess Hindu religion, therefore, their marriage would be governed by HMA. Section 5, HMA lays down the conditions of a valid Hindu marriage under which clause (iii) requires the bridegroom and the bride to have completed the age of twenty-one and eighteen respectively. The Court rejected the State’s contention that the petitioners’ marriage is not valid in law as Petitioner 2 could not be recognised as a bride under Section 5(iii), HMA. It eloquently interpreted the word “bride” so as to embrace not only cis-woman but also transwoman or intersex person who perceives zirself to be a woman within its ambit in accordance with the directives laid down in NALSA.[30] It opined that the word “bride” under Section 5 cannot have a “static or immutable meaning”[31] and must be “interpreted in the light of legal system as it exists today”.[32] Therefore, Petitioner 2 who was born intersex but identifies herself as a woman should be treated as “bride” under the provisions of Section 5, HMA. A reference was made to Shafin Jahan v. Asokan K.M.[33] wherein the Supreme Court held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.[34] The Court further recalled the mention of James Obergefell v.Richard Hodges[35], a landmark ruling by the Supreme Court of United States of America (SCOTUS) in Puttaswamy case[36] wherein the SCOTUS noted that “it would be contradictory to recognise a right to privacy concerning other matters of family life and not concerning the decision to enter the relationship that is the foundation of the family in society”.[37] In the light of this explication, the Court discussed Article 16 of the Universal Declaration of Human Rights which entitles men and women of full age to equal rights of marriage and its dissolution sans any restriction or limitation.[38]

            The Court took a pleasantly inclusive view in tune with the Court’s constitutional interpretation in NALSA[39] and declared that a “transgender person’s right to marry cannot be kept out of the purview of HMA”.[40] It further delineated that since the petitioners profess Hindu religion and their marriage was solemnised in a temple, the petitioners’ fundamental right under Article 25[41] of the Constitution has also been infringed.

VI. Intercaste Marriage: The Only Way to Annihilate Casteism in India

The Court reflected in its judgment[42] the peril of casteism – the most thorny ism which has been permeating the social fabric of Indian society since centuries and mutilating its people and institutions from within. In para 23, the Court noted that Petitioner 1 was a Hindu Kuravan – a notified Scheduled Caste community whereas Petitioner 2 belonged to Saiva Vellalar community. Whilst extolling the words of the Chief Architect of the Constitution of India, Dr B.R. Ambedkar, that “castes are antinational”[43], the Court illuminated that inter-caste marriages alone can lead to social integration and fulfilment of preambular promise of fraternity, the Court opined that the petitioners were entitled to get financial incentive as set out in Government of India’s Dr Ambedkar Scheme for Social Integration through Inter-caste Marriages, a scheme to encourage inter-caste marriages so as to wipe out the termite of casteism from India.[44]

Decision

The Court, therefore, held that the State’s intransigent refusal to register the cis-trans marriage demonstrated amateur meddling of NALSA[45] ruling and amounted to a violation of Ms Sreeja’s fundamental rights under Articles 14, 19(1)(a), 21 and 25 of the Constitution of India. Consequently, it quashed the orders of  Joint Registrar II and the District Registrar of Tuticorin and directed  Joint Registrar II to register the marriage of the petitioners. Thereby, recognising the term “bride under Section 5 HMA to be inclusive of transwoman and intersex person who identifies as woman along with cis-woman. Further, the Court directed the Government of Tamil Nadu to issue a government order to ban SRS or IGM on intersex infants and children. The Court also noted that since petitioners belonged to different castes, they were entitled to obtain financial incentives under “Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages.”[46]

Comments

The courts, being the sentinel of the Constitution on the qui vive, have the constitutional duty to earnestly advert to the enforcement and entitlement of human rights  under the garb of fundamental rights as enshrined under Part III of the Indian Constitution. Swaminathan, J. in this tremendously progressive and path-breaking pronouncement spurned all dogmas which impede human rights and dignity of a transgender person and exquisitely remarked that “this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart”.[47]

            Further, the Court, despite unfortunately conflating sex and gender by simultaneously using male, female and third gender words together in various parts of the judgment, ventured to adopt an all-embracing approach and broke the shackles of dyadic categories of sex and gender and declared that there are people who remain outside the duality and opt to identify as neither male nor female.[48] However, it could have invoked judicial activism and creativity to lift the downtrodden transgender community from the cavernous depths of ostracisation and mockery by unequivocally issuing directions on other civil rights of transgender people viz. divorce, adoption, guardianship, succession, inheritance, inter alia, and proposing to follow gender-blind interpretation so as to apply the language of the Constitution to the lives of transgender persons. Nonetheless, it has proved to have a persuasive effect on subsequent judgments rendered by other High Courts while dealing with the rights of transgender persons. For instance, in X v. State of Uttarakhand, the High Court of Uttarakhand noted that an FIR alleging rape under Section 375 IPC and an offence under Section 377 IPC was filed by a transwoman. The Court held that “the petitioner’s right to determine her sex and gender has to be respected and honoured. The petitioner has identified herself as female, therefore, ‘she’ has to be treated as a female for all the purposes, whatsoever without any further confirmation from any authority”.[49]

            At various places, the Court has talked of bringing back the transgender and intersex people languishing in the margins back to the mainstream society. What did the Court exactly refer to as the “mainstream”? Is it where the straightforward network of masculine man and feminine women exists? Are not transgender community already in the mainstream and what is required is the transformation of mainstream society into a more progressive one? Something to ponder over.

It is pertinent to mention that the benefits of this judgment is restricted to the marriage between people only when one of them identifies as man and the other as woman since HMA validates marriage only between a bride and a bridegroom. This ruling has no implication on the issue of same sex marriage in India.

            However, the legislature has created a rather baffling incongruence between these landmark judgments and recently enacted legislation – The Transgender Persons (Protection of Rights) Act, 2019.[50] Firstly, whilst these judgments have endeavoured to confer the civil rights upon the transgender persons, the legislations completely silent on these sine qua non rights, and secondly, the Madras High Court ruled that a transwoman (or transman, as the case maybe) irrespective of whether zir has undergone SRS or not will be recognised as a woman (or man as the case maybe), however, the Act necessitates that a transgender shall be recognised as a man or a woman, as the case maybe, only pursuant to SRS and resultant certificate by the Chief Medical Officer.[51] Consequently, a transgender person accordingly to zir self-perceived gender can exercise zir right to marry only within the territorial jurisdiction of Madras High Court i.e. in the State of Tamil Nadu.

            Indian judiciary and legislature have made a remarkable progress in bestowing rights and protection to transgender community but there is still a lot to learn from recent dicta of SCOTUS,[52] Malaysian Courts[53] and African Courts[54] among others, and transgender legislations of countries like Malta, Finland, Norway, etc. In fact, Pakistan, a third-world nation, has recently enacted the Transgender Persons (Protection of Rights) Act, 2018[55] which does not require any medical or diagnostic requirement for legally recognising the self-perceived gender of a person and also grants the right of inheritance, among other rights as opposed to Indian transgender legislation. This makes Pakistan’s transgender legislation more progressive not only in Asia but globally.

            Despite the foregoing pitfalls, the Court in this significant judgment has translated the abstract right of self-perceived gender into a tangible civil right to marry and has stood as a rare case of correct application of NALSA judgment[56]. It has categorically refused to categorise people into monolithic quagmire of dual gender identity and orientation and once again set into motion the wheels of societal, judicial, and legislative discourse on other crucial civil rights for transgender people so as to completely unclip the wings of an almost utopian society for all genders and orientations.


* LLB student, Law Centre I, Faculty of Law, University of Delhi. Author can be reached at aasthakhanna0204@gmail.com.

[1] Saptorshi Das, “Vyasa’s Draupadi: A Feminist Representation”, 2(2) International  Journal of Gender and Women’s Studies 223, 223 (2014).

[2] 2019 SCC OnLine Mad 8779

[3] Act 25 of 1955.

[4] Supra Note 2. The Court has narrated the story of Aravan in para 5 in the following words:

According to the renowned writer Devdutt Pattanaik in his book “Jaya”, in the great Mahabharata war, Aravan came forward to sacrifice himself to ensure the victory of Dharma. But, he insisted that he must have a wife who will weep for him when he died. In keeping with the rules of the ritual, it was mandatory to fulfil the last wish of the sacrificial victim. The Pandavas were obliged to get Aravan married but no woman was willing to be his wife. Who would want to marry a man doomed to die at sunrise? When all attempts to get Aravan a wife failed, Krishna rose to the occasion and transitioned himself into a female form known as Mohini and married Aravan. The next day when Aravan was beheaded at dawn, Krishna wept for him as a widow. This tale of Aravan’s human sacrifice comes from north Tamil Nadu’s oral traditions where Aravan is worshipped as Kuthandavar, a form of Shiva. Aravan’s sacrifice is re-enacted each year ritually where he becomes the divine husband of all men who have womanly feelings.

[5] Shikhandi was one of the important characters in the epic of Mahabharta. She was born a female but grew up to be a male.

[6] Lord Ayyappa  is a syncretic deity born of the union between Lord Shiva and Lord Vishnu who took the form of Mohini.

[7] Supra Note 2 at  para 5.

[8] Supra Note 2 at  para 7. See also, The Spectrum Model of Sex, Gender and Sexuality, University of South Dakota, available at https://www.usd.edu/diversity-and-inclusiveness/office-for-diversity/safe-zone-training/spectrum-model (last accessed on 28-11-2020).

[9] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[10] Supra Note 2, para 8.

[11] Article 14.—Equality before law.

[12] Article 19(1)(a).— Protection of certain rights regarding freedom of speech and expression.

[13] Article 21.— Protection of life and personal liberty.

[14] Supra Note 9.

[15] Supra Note 2, para 8.

[16]  (2017) 10 SCC 1 .

[17]  (2018) 10 SCC 1.

[18] Act 45 of 1860.

[19] Gender neutral pronoun.

[20] Res integra is a Latin word which means a question of law which has not yet been examined by the courts.

[21] Intersex people are those people who are born with neither a male genitalia nor a female genitalia.

[22] Supra Note 2.

[23] Supra Note 2, para 21.

[24] 2007 SCC OnLine Mad 141.

[25] Id., para 35.

[26] Supra Note 9.

[27] Supra Note 2 at para 19.

[28]Article 39 of the Constitution of India provides certain principles of policy which a State must follow. Clause (f) provides that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

[29] Supra Note 9.

[30] Supra Note 2, para 15.

[31] Supra Note, para 10.

[32] Ibid.

[33] (2018) 16 SCC 368.

[34] Ibid at para 86.

[35] 2015 SCC OnLine US 6.

[36] Supra Note 15.

[37] Supra Note 2 at para 12.

[38] Supra Note 22, para 10.

[39] Supra Note 9.

[40] Supra Note 2, para 14.

[41] Art. 25.— Freedom of free conscience and free profession, practice and propagation of religion.

[42]  Supra Note 2.

[43] Supra Note 2, para 23.

[44] Ibid.

[45] Supra Note 9.

[46] Supra Note 2, paras 23 and 25.

[47] Supra Note 2, para 1, p. 2.

[48] Supra Note 2, para 24.

[49] 2019 SCC OnLine Utt 1097.  See also M. Srinivasan v. State,  2020 SCC OnLine Mad 6311

[50] Act 40 of 2019.

[51] Id., Section 7(1).

[52] Bostock v. Clayton County, 2020  SCC OnLine US SC 2.

[53] Muhamad Juzaili bin Mohd. Khamis v. State Govt. of Negeri Sembilan, 2014 SCC OnLine MYCA 543

[54] Motshidiemang v. Attorney General, 2019 SCC OnLine BWHC 1; see also EG v. Attorney General, Petitions Nos. 150 and 234 of 2016, decided on 24-5-2019 (High Court of Kenya).

[55] Act 13 of 2018.

[56] Supra Note 9.

Hot Off The PressNews

Here’s the press statement released by the Ministry of External Affairs with regard to the comments by some foreign individuals and entities on the farmers’ protests:

“The Parliament of India, after a full debate and discussion, passed reformist legislation relating to the agricultural sector. These reforms give expanded market access and provided greater flexibility to farmers. They also pave the way for economically and ecologically sustainable farming.

A very small section of farmers in parts of India have some reservations about these reforms. Respecting the sentiments of the protestors, the Government of India has initiated a series of talks with their representatives. Union Ministers have been part of the negotiations, and eleven rounds of talks have already been held. The Government has even offered to keep the laws on hold, an offer iterated by no less than the Prime Minister of India.

Yet, it is unfortunate to see vested interest groups trying to enforce their agenda on these protests, and derail them. This was egregiously witnessed on January 26, India’s Republic Day. A cherished national commemoration, the anniversary of the inauguration of the Constitution of India, was besmirched, and violence and vandalism took place in the Indian capital.

Some of these vested interest groups have also tried to mobilise international support against India. Instigated by such fringe elements, Mahatma Gandhi statues have been desecrated in parts of the world. This is extremely disturbing for India and for civilised society everywhere.

Indian police forces have handled these protests with utmost restraint. It may be noted that hundreds of men and women serving in the police have been physically attacked, and in some cases stabbed and seriously wounded.

We would like to emphasise that these protests must be seen in the context of India’s democratic ethos and polity, and the efforts of the Government and the concerned farmer groups to resolve the impasse.

Before rushing to comment on such matters, we would urge that the facts be ascertained, and a proper understanding of the issues at hand be undertaken. The temptation of sensationalist social media hashtags and comments, especially when resorted to by celebrities and others, is neither accurate nor responsible. ”

#IndiaTogether

#IndiaAgainstPropaganda


Ministry of External Affairs

[Press Statement dt. 03-02-2021]

NewsTreaties/Conventions/International Agreements

The Union Cabinet has approved the signing of a Memorandum of Cooperation between the Government of India and Government of Japan, on a Basic Framework for Partnership for Proper Operation of the System Pertaining to “Specified Skilled Worker”.

Details:

The present Memorandum of Cooperation would set an institutional mechanism for partnership and cooperation between India and Japan on sending and accepting skilled Indian workers, who have qualified the required skill and Japanese language test, to work in fourteen specified sectors in Japan. These Indian workers would be granted a new status of residence of “Specified Skilled Worker” by the Government of Japan.

Implementation Strategy:

Under this MOC, a Joint Working Group will be set up to follow up the implementation of this MOC.

Major Impact:

The Memorandum of Cooperation (MOC) would enhance people-to-people contacts, foster mobility of workers and skilled professionals from India to Japan.

Beneficiaries:

Skilled Indian workers from fourteen sectors viz. Nursing care; Building cleaning; Material Processing industry; Industrial machinery manufacturing industry; Electric and electronic information related industry; Construction; Shipbuilding and ship-related industry; Automobile maintenance; Aviation; Lodging; Agriculture; Fisheries; Food and beverages manufacturing industry and Foodservice industry would have enhanced job opportunities to work in Japan.


Ministry of External Affairs

[Press Release dt. 06-01-2020]

[Source: PIB]

Op EdsOP. ED.

I. INTRODUCTION

The 2019 Amendment Act[1] marks India’s shift towards institutional arbitration. Like previous amendments to the Arbitration and Conciliation Act, 1996[2] (hereinafter “ACA”) one of the objectives of the latest amendment is to make India an arbitration-friendly jurisdiction. This is one of those objectives which the previous amendments have failed to achieve.

As per the latest amendment, the authority to appoint an arbitrator under Section 11 now vests with the arbitral institution. The amendment however does not comment on the ‘Scope of Intervention’ while appointing the arbitrator. Through this article, an attempt has been made to figure out what ‘Scope of Intervention’ would be in tune with the institutional arbitration regime in India.

Section 11 has been one of the most debated subject-matters in Indian arbitration regime and has undergone changes in both the 2015 and 2019 Amendment Acts. This article shall talk about the circumstances leading to these amendments to determine what legislature, judiciary or arbitral institutions need to learn from the past and avoid with regard to Section 11 which would impede the progress of institutional arbitration in India.

II. ARBITRATION AND CONCILIATION ACT, 1996

The legislature wanted to make the arbitration landscape in India more responsive to contemporary requirements. To bring the arbitration law in tune with the prevailing scenario of international arbitration, the 1996 Act was introduced which sought to:

(i) reduce the judicial interference in the arbitral process; and

(ii) expedite disposal of cases

1. Interpretation of Section 11 prior to 2015 Amendment

The Supreme Court in National Insurance Co. Ltd. v. Boghara Polyfab[3] relied on SBP & Co. v. Patel Engineering[4] and categorised the issues which can or cannot be decided by the court concerned while appointing the arbitrator under Section 11:

22.1. The issues (first category) which Chief Justice/his designate will have to decide are:

(a) Whether the party making the application has approached the appropriate High Court?

 (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement?

 22.2. The issues (second category) which the Chief Justice/his designate may choose to decide are:

(a) Whether the claim is a dead (long barred) claim or a live claim?

 (b) Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection?

22.3. The issues (third category) which the Chief Justice/his designate should leave exclusively to the arbitral tribunal are:

(a) Whether a claim falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration)?

 (b) Merits of any claim involved in the arbitration.”

2. ­Thwarting the objectives of the Act

The Court in the aforementioned rulings expanded the scope of Section 11 and appeared to have gone against the intention of the legislature and objectives of the Act. Patel Engineering[5] and National Insurance[6] gave the court concerned power to not only determine the existence of the arbitration agreement but also the power to decide the preliminary issues (second category). Thus, the Court’s role no longer remained that of a ‘facilitator’ resulting in increased court intervention in the arbitral process and the Court’s increased involvement essentially means slow disposal of cases.

The two aforementioned judgments conferred finality in light of sub-section (7) on the issues decided by the Court. Consequently, if a court would decide the existence of the arbitration agreement between the parties, the tribunal will have no power to decide that issue. It might have been the intention of the court to save the tribunal’s time, and preventing it from deciding on the same issue again. However, the decision to confer the power on courts to decide preliminary or jurisdictional issues goes against the express wordings of Section 16 of the Act which recognises the Kompetenz-Kompetenz principle.

III. THE 2015 AMENDMENT ACT

In the wake of the Court’s expanded scope of intervention, the Law Commission of India in its 246th Report[7] suggested amendments to the Act. It sought to introduce Section 11(6-A), the discussion regarding which in the said Report is as follows:

Section 11(6-A) of the amendment contemplates a two-step process to be adopted by a judicial authority when considering an application seeking the reference of a pending action to arbitration. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void (i.e. invalid). If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void.”

                                                                                                   (emphasis supplied)

However, Section 11(6-A) as per the 2015 Amendment clarified that the Court’s role under sub-sections (4), (5) or (6) of Section 11 is to “confine to the examination of the existence of an arbitration agreement”. Evidently, the section does not include prima facie “examination of validity” in contrast to the Law Commission’s suggestion that “once the prima facie conclusion is that the agreement does not exist or if it is determined that agreement is null and void, such determination is conclusive”.

The 2015 Amendment Act’s Statement of Objects and Reasons reiterated how interpretation of the provisions has caused delay in arbitral proceedings and encroachment upon the tribunal’s powers. Thus, the intention behind the amendment is to remedy the situation by introducing sections to minimise court intervention and enable swift disposal of cases in user-friendly manner.

We will now look if the interpretation provided by the Courts to Section 11(6-A) was consistent with the 2015 Amendment’s objectives.

1. Scope of Examination under Section 11 post 2015 Amendment

In Duro Felguera, S.A. v. Gangavaram Port Limited,[8] two-Judge Bench of the Supreme Court provided literal interpretation to Section 11(6-A) to confine examination to the existence of an arbitration agreement and enumerated the factors to decide on the existence of such an agreement. The Court stated:

From a reading of Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should and need only into one aspect – the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple – it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement.”

However, in United India Insurance v. Hyundai Engg. & Construction Co. Ltd.,[9] the Court while relying on Duro Felguera[10] came up with a different reasoning and held:

Suffice it to say that appointment of arbitrator is a judicial power and is not mere an administrative function leaving some degree of judicial intervention; when it comes to the question to examine the existence of a prima facie arbitration agreement, it is always necessary to ensure that the dispute resolution process does not become unnecessarily protracted.”

The Court then in Mayavati Trading v. Pradyuat Deb Burman[11] overruled the judgment in United India Insurance[12]  stating that the judgment does not lay down the correct law and reaffirmed that “Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment of Duro Felguera[13].” Further, all the other preliminary objections/questions are to be dealt with by the tribunal.[14]

 2.‘Dual Test’ by the Delhi High Court

In both Jindal Stainless Ltd. v. Damco India Pvt. Ltd.[15] and Ritika Diwan v. Supertech Ltd.,[16] the Delhi High Court reached the same conclusion that “the role of the Courts while considering an application under Section 11 is now confined to examining the existence of the arbitration agreement.”

However, post Ritika Diwan[17], the Delhi High Court has provided a different interpretation to Section 11(6) in the judgments of Unique Reality Pvt. Ltd. v. RC Infra Developers [18]; Pave Infrastructure Pvt. Ltd. v. WAPCOS Ltd.[19] and Devi Fatehpuria v. Jugal Kishore Shyam Prakash and Co.[20]

In these aforestated three judgments post Ritika Diwan[21], the Delhi High Court has held that the Court has to examine the “existence” and “validity” of an arbitration agreement while deciding on a petition under Section 11(6).

Insofar as the Supreme Court’s interpretation of Section 11 or the ‘Dual Test’ applied by the Delhi High Court is concerned, what remains relevant to note is the inconsistency in judicial precedents. On one hand, the Supreme Court  tends to deviate from ‘only examining the existence of an arbitration agreement’ and on the other Delhi  High Court continues apply the dual test of ‘existence’ and ‘validity’ despite the clarification provided by the Supreme Court  in Mayavati Trading[22].

3.Continued judicial intervention

The following judgments shall demonstrate that judicial intervention continued and the courts seem to have remained oblivious of the Kompetenz-Kompetenz principle:

3.1. Supreme Court Judgments

In both, Oriental Insurance Company Ltd. v. Narbheram Power and Steel Private Ltd.[23] and United India Insurance[24]  the Supreme Court other than identifying the existence of the arbitration agreement, examined whether the conditions stipulated in the contract to give effect to the arbitration agreement have been fulfilled.

In Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd.,[25] the Supreme Court was of the opinion that an application under Section 11 could be decided only if the arbitration clause or the contract containing the arbitration clause is sufficiently stamped. In light of sub-section (6-A) one could argue that examining the existence of an arbitration agreement does not include examining whether such agreement is sufficiently stamped.

3.2. Delhi High Court Judgments

In NCC Ltd. v. Indian Oil Corporation Ltd.,[26] it was stated that apart from examining the existence of an arbitration agreement, the Court’s power of examination under Section    11(6-A) extends to “correlating the dispute between the parties with the arbitration agreement between the parties”.

In Brightstar Telecommunications v. Iworld Digital Solutions Pvt. Ltd.,[27] the Court took a very similar stance and stated that examination under Section 11(6-A) extends to “relating the existence of arbitration agreement to the disputes, which the parties had anticipated that would arise in connection with and/or in relation to the transactions that they had undertaken.”

In Western Constructions v. Eden Buildcon,[28] the Court went to examine “whether the disputes between the parties fall within the ambit of arbitration clause” and thereby did not refer the parties to arbitration.

In Prime Market Reach Pvt. Ltd. v. Supreme Advertising Ltd.,[29] the Court having examined the validity of the arbitration agreement in detail (as per requirements of Section 7), found it to be invalid and hence, refused to refer the parties to arbitration.

 4. Aftermath of the 2015 Amendment

Two circumstances arose in the aftermath of this amendment:

(i) Courts’ Interpretation of Section 11 of the Act was not consistent.

(ii) Judicial interference in the arbitral process continued as the courts seem to have ignored the Tribunal’s power to rule on its own jurisdiction.

Consequently, the 2015 Amendment failed to achieve its objectives of minimal judicial intervention and user-friendly speedy disposal of cases. India still remains to be seen as an arbitration- unfriendly jurisdiction.

 IV. REFLECTING ON THE ROLE OF THE LEGISLATURE AND THE COURT

The Supreme Court in Vidya Drolia v. Durga Trading Corpn. [30] noted:

“It will be seen that though the 246th Law Commission Report[31] speaks not only of “existence” but also of an arbitration clause being null and void, this has not translated itself into the language of Section 11(6-A).”

It can be argued that despite the legislature’s noble intentions, Section 11(6-A) has not been drafted with clarity or that the provision is not as elaborative as suggested by the Law Commission’s  246th Report or that the provision as suggested by the Law Commission was more in tune with objectives of the amendment.

However, it remains of quintessential importance to discuss the role of the courts when faced with a situation where a defect appears in the provision or that provision has not been drafted with clarity or seems to be going against the intention of the legislature.

Lord Denning once said that in the event when a defect emerges, a Judge should not simply fold his hands and blame the draftsman but must also consider the social conditions and give force and life to the intention of the Legislature. Lord Denning in Seaford Court Estates Ltd. v. Asher[32] said:

A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life to the intention of the legislature.”

In a similar vein, the Supreme Court in Collector of Customs v. Digvijaya Singhji Spinning & Weaving Mills[33] resorted to the principle of harmonious construction of the statues and said:

“…where an alternative construction is open, that alternative should be chosen which is consistent with the smooth working of the system which the statute purports to regulate.”

While the 1996 Act or the 2015 Amendment Act might not have been perfectly drafted Act, the Courts did not succeed either in their role to provide an interpretation to  Section 11 which is best suited to give impetus to the intention of the legislature.

V. THE 2019 AMENDMENT ACT

Wary of India’s reputation as arbitration-unfriendly jurisdiction, the Ministry of Law and Justice set up a High Level Committee (HLC) under the Chairmanship of retired Justice of the Supreme Court, Jusice B.N. Srikrishna to suggest measures required for making India a hub of international and domestic arbitrations.

Based on its terms of reference which involved studying the functioning of arbitral institutions and examining the effectiveness of arbitration mechanisms, the Committee was tasked with:

(a) suggesting measures to encourage Institutional Arbitration in India;

 (b) recommending amendments to the ACA and other laws to encourage international commercial arbitration;

(c) devising an action plan for implementation of the law to encourage speedy arbitrations.”

 Based on the recommendations of the Report submitted by the High Level Committee, Parliament introduced the 2019 Amendment Act. The amendments contained in the Act which are pertinent to our discussion are as follows:

(a) The establishment and incorporation of an independent & autonomous body, namely, the “Arbitration Council of India”;

(b) An amendment to Section 11 of the Act i.e. “Appointment of Arbitrators”.

Through the amendment, sub-sections (6-A) and (7) have been repealed. Since the amendment focused on strengthening institutional arbitration in India, under the amended Section 11(6) of the ACA the appointment of arbitrators shall be done by the arbitral institution:

“…the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be.

The amendment did not provide clarification on:

(i) What shall be the scope of examination of by the arbitral institution while entertaining an application for appointment of arbitrator?

(ii) Whether the orders passed by the Tribunal shall be amenable to challenge?

Detailed rules are required to be framed regarding these unaddressed issues in the amendment. These open questions pose a serious threat to the step of encouraging institutional arbitration in India. The legislature must clarify the scope of examination and intervention by the arbitral institutions to ensure that the institutions do not interfere with the tribunal’s power.

Earlier, we observed the how confusion regarding the scope of examination under Section 11 led to inconsistency in judicial precedents and increased judicial interference with the arbitral process. While the legislature’s amendment is a step forward to reduce the court interference with arbitral process, the expanded scope of examination by the arbitral institution could still be oblivious of the Kompetenz-Kompetenz principle.

It is crucial to learn from the past and avoid the situations which arose earlier. It is highly important that the scope of examination while appointing the arbitrator must be such which is best suited to strengthen institutional arbitration and improve India’s reputation as an arbitration friendly jurisdiction.

1. Approach of the global institutions

The HLC in its Report referred to the QMUL Survey[34] which had stated that the International Chamber of Commerce Court (ICC Court), the London Court of International Arbitration (LCIA), the Hong Kong International Arbitration Centre (HKIAC), the Singapore International Arbitration Centre (SIAC) and the Arbitration Institute of the Stockholm Chambers of Commerce (SCC) are the five most preferred arbitral institutions worldwide.

To find out the best-suited approach while entertaining an application under Section 11, we will compare the approach or the scope of examination undertaken by these five most preferred arbitral institutions while appointing an arbitrator or registering a case. Apart from these institutions, we shall also see the approach of ICSID which could be guiding factor for BIT arbitrations.

1.1. ICC Arbitration Rules[35]

Article 6. Effect of the Arbitration Agreement.—

(1)-(3)                            *             *                   *

(4) In all cases referred to the Court under Article 6(3)…The arbitration shall proceed if and to the extent that the Court is prima facie satisfied that an arbitration agreement under the Rules may exist.

                                       *                *                  *

  1. In all matters decided by the Court under Article 6(4), any decision as to the jurisdiction of the arbitral tribunal, except as to parties or claims with respect to which the Court decides that the arbitration cannot proceed, shall then be taken by the arbitral tribunal itself.”

1.2.  HKIAC Arbitration Rules[36]

Article 11 – HKIAC’s Prima Facie Power to Proceed

11.1 The arbitration shall proceed if and to the extent that HKIAC is satisfied, prima facie, that an arbitration agreement under these Procedures may exist. Any question as to the jurisdiction of the arbitral tribunal shall be decided by the arbitral tribunal once constituted.

11.2  HKIAC’s decision pursuant to Article 11.1 is without prejudice to the admissibility or merits of any party’s pleas.”

1.3.      LCIA Arbitration Rules[37]

Article 23. Jurisdiction and Authority

23.1 The Arbitral Tribunal shall have the power to rule upon its own jurisdiction and authority, including any objection to the initial or continuing existence, validity, effectiveness or scope of the Arbitration Agreement.

1.4.      SIAC Arbitration Rules, 2016[38]

Article 28. Jurisdiction of the Tribunal

28.1  If any party objects to the existence or validity of the arbitration agreement or to the competence of SIAC…the Court shall decide if it is prima facie satisfied that the arbitration shall proceed. The arbitration shall be terminated if the Court is not so satisfied. Any decision by the Registrar or the Court that the arbitration shall proceed is without prejudice to the power of the Tribunal to rule on its own jurisdiction.

28.2  The Tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence, validity or scope of the arbitration agreement. An arbitration agreement which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.”

Identical Clauses are present in Article 25 of SIAC Investment Rules, 2017.

1.5.      SCC Arbitration Rules[39]

Article 11. Decisions by the Board

The Board takes decisions as provided under these Rules, including deciding:

(i)  whether the SCC manifestly lacks jurisdiction over the dispute pursuant to Article 12 (i);

                     *                     *                 *

Article 12. Dismissal

The Board shall dismiss a case, in whole or in part, if:

(i)  the SCC manifestly lacks jurisdiction over the dispute;…

1.6.      ICSID Convention[40]

Section 1 Request for Arbitration

Article 36

(1)-(2)     *          *        *

(3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forth-with notify the parties of registration or refusal to register.

           *      *        *

Section 3   Powers and Functions of the Tribunal

Article 41

(1) The Tribunal shall be the judge of its own competence.

(2) Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute.

2. Similar Approach by global institutions

The ‘scope of examination’ that all of these institutions undertake has two similar facets:

(i) Acknowledgement of the tribunal’s power (Kompetenz-Kompetenz) as all of the aforementioned institutions have given the tribunals the power to rule on their own jurisdiction; and

(ii) Checking whether the institution manifestly lacks jurisdiction or in other words prima facie examination of whether the arbitration should proceed.

 VI.CONCLUSION

The approach followed by these institutions is not entirely new to the Indian arbitration regime. In fact, the scope of examination under Section 11as suggested by 246th Law Commission Report was similar to the approach followed by these institutions while registering or deciding whether arbitral process should move forward. The suggested amendment of Section 11 in 246th Report involved examining whether prima facie arbitration agreement exists – If prima facie no agreement exists, arbitration shall not move forward and if the agreement prima facie exists, the arbitration shall move forward and the tribunal shall have the power to rule on its jurisdiction including the arbitration agreement. This approach while dealing with an application for appointment of an arbitrator is consistent with the intention of the legislature to reduce

Firstly, refusing to appoint an arbitrator if the arbitral institution is not prima facie satisfied that an arbitration agreement exists is plausible conclusion. Certainly, prima facie satisfaction by the appointing authority indicates a lower threshold of scrutiny, lower than what the tribunal would require to satisfy itself of the existence of a valid arbitration agreement when it rules on its jurisdiction. Therefore, it is most plausible to conclude that an arbitration agreement which fails to pass the scrutiny of the lower threshold should not be expected to pass the higher threshold required by the tribunal.

The prima facie satisfaction can be said to be similar to the examination under the English Arbitration Act for appointment of an arbitrator which requires that the court would see if there is “good arguable case” that the tribunal had jurisdiction to hear the issue.[41]

Secondly, the prima facie satisfaction is more consistent with Kompetenz-Kompetenz principle as it gives the tribunal the power to rule on its jurisdiction even when the arbitration agreement has passed the initial lower threshold.

Lastly, the prima facie test would lead to speedy disposal of cases and result in weeding-out the cases which have failed to pass this lower threshold test ultimately saving the tribunal’s time.


* 4th Year, BALLB. (Hons.), Maharashtra National Law University, Nagpur.

[1] Arbitration and Conciliation (Amendment) Act, 2019

[2] Arbitration and Conciliation Act, 1996

[3](2009) 1 SCC 267

[4](2005) 8 SCC 618

[5] (2005) 8 SCC 618

[6] (2009) 1 SCC 267

[7] Law Commission of India, 246th Report on Amendments to the Arbitration and Conciliation Act, 1996

(August 2014)

[8] (2017) 9 SCC 729

[9] (2018) 17 SCC 607

[10] (2017) 9 SCC 729

[11](2019) 8 SCC 714

[12] (2018) 17 SCC 607

[13] (2017) 9 SCC 729

[14] Uttrakhand Kalyan Nigam v. Northern Coal Field Ltd., (2020) 2 SCC 455

[15]2016 SCC OnLine Del 6368

[16]2019 SCC OnLine Del 11255

[17] Ibid

[18]Arb. Petition No. 432 of 2019

[19]Arb. Petition No. 574 of 2019

[20]Arb. Petition No. 339 of 2019

[21] 2019 SCC OnLine Del 11255

[22] (2019) 8 SCC 714

[23](2018) 6 SCC 534

[24] (2018) 17 SCC 607

[25] (2019) 9 SCC 209

[26]2019 SCC OnLine Del 6964

[27]2018 SCC OnLine Del 13071

[28]2019 SCC OnLine Del 11465

[29]Arb. Petition No. 434 of 2019, decided on 17-12-2019.

[30]2019 SCC Online SC 358

[31] 246th Report  on Amendments to the Arbitration and Conciliation Act, 1996

[32][1949] 2 KB 481

[33]1961 AIR 1549

[34] ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’, Queen Mary University of London and White & Case LLP (2015), available at http://www.arbitration.qmul.ac.uk/docs/164761.pdf.

[35] Rules of Arbitration of the International Chamber of Commerce

[36] HKIAC, Procedures for Administration of Arbitration under the UNCITRAL Arbitration Rules

[37] London Court of International Arbitration Rules

[38]Singapore International Arbitration Centre Rules, 2016

[39]Arbitration  Rules  of  the  Arbitration  Institute  of  the  Stockholm  Chamber  of  Commerce, 2017

[40] Convention  on  the  Settlement  of  Investment  Disputes  between  States  and  Nationals  of  Other States

[41]Silver Dry Bulk Co. Ltd. v. Homer Hulbert Maritime Co. Ltd., [2017] EWHC 44 (Comm).

OP. ED.SCC Journal Section Archives

Introduction

The most notable anti-governmental protests have sparked across the streets of “Europe’s Last Dictatorship” as Belarusian citizens have been peacefully demonstrating against the allegedly manipulated August 2020 Presidential elections, rampant police brutality and the inhuman treatment meted out to the detainees by the State machinery. These protests have become one amongst many amplifying demonstrations that various establishments across the world are grappling with along side the constant threat of the coronavirus pandemic. The right to protest is the expression of the protester of showing dissent against the authority.

The United Nations Human Rights Committee, coincidentally at a propitious time, adopted General Comment No. 37 on Article 21 of the International Covenant on Civil and Political Rights1 (hereinafter, “Iccpr”) that enshrines the right to peaceful assembly. The general comment reinstated the responsibility of law enforcement State agencies to protect and enable these peaceful demonstrations2 and the non-usage of “indiscriminate use of firearms” except a minimal force to curb an escalated tension3. The UN Committee has thus held the right to protest, whether offline or online, as a vital human right4 well protected by the principles of international law, particularly the Iccpr and various other regional human rights conventions.

This article attempts to provide a comparative analysis with respect to the legal principle of the right to protest in two distinctive jurisdictions, India and Belarus as analogous agitations against the ruling dispensation have been observed in both the countries.

To read the full text of the article, click here.


Note: This article was first published in Practical Lawyer (2020) PL (HR) November 71. It has been reproduced with the kind permission of Eastern Book Company.

* BA LLB, 5th year and Student Coordinator

** BA LLB, 2nd-year Member, RGNUL, Centre for Advanced Studies in Human Rights (CASIHR)

Hot Off The PressNews

MEITY issues orders for blocking apps under Section 69A of the Information Technology Act

Ministry of Electronics and Information Technology, Government of India today issued an order under Section 69A of the Information Technology Act blocking access to 43 mobile apps. This action was taken based on the inputs regarding these apps for engaging in activities which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. Ministry of Electronics and Information Technology has issued the order for blocking the access of these apps by users in India based on the comprehensive reports received from Indian Cyber Crime Coordination Center, Ministry of Home Affairs.

Earlier on 29-06-2020, the Government of India had blocked access to 59 mobile apps and on 02-09-2020.

118 more apps were banned under Section 69A of the Information Technology Act. Government is committed to protect the interests of citizens and sovereignty and integrity of India on all fronts and it shall take all possible steps to ensure that.

List of apps that have been blocked for access in India today’s order are given as per the annexure attached.

Annexure

  1. Ali Suppliers Mobile App
  2. Alibaba Workbench
  3. AliExpress – Smarter Shopping, Better Living
  4. Alipay Cashier
  5. Lalamove India – Delivery App
  6. Drive with Lalamove India
  7. Snack Video
  8. CamCard – Business Card Reader
  9. CamCard – BCR (Western)
  10. Soul- Follow the soul to find you
  11. Chinese Social – Free Online Dating Video App & Chat
  12. Date in Asia – Dating & Chat For Asian Singles
  13. WeDate-Dating App
  14. Free dating app-Singol, start your date!
  15. Adore App
  16. TrulyChinese – Chinese Dating App
  17. TrulyAsian – Asian Dating App
  18. ChinaLove: dating app for Chinese singles
  19. DateMyAge: Chat, Meet, Date Mature Singles Online
  20. AsianDate: find Asian singles
  21. FlirtWish: chat with singles
  22. Guys Only Dating: Gay Chat
  23. Tubit: Live Streams
  24. WeWorkChina
  25. First Love Live- super hot live beauties live online
  26. Rela – Lesbian Social Network
  27. Cashier Wallet
  28. MangoTV
  29. MGTV-HunanTV official TV APP
  30. WeTV – TV version
  31. WeTV – Cdrama, Kdrama&More
  32. WeTV Lite
  33. Lucky Live-Live Video Streaming App
  34. Taobao Live
  35. DingTalk
  36. Identity V
  37. Isoland 2: Ashes of Time
  38. BoxStar (Early Access)
  39. Heroes Evolved
  40. Happy Fish
  41. Jellipop Match-Decorate your dream island!
  42. Munchkin Match: magic home building
  43. Conquista Online II

Ministry of Electronics & IT

[Press Release dt. 24-11-2020]

Op EdsOP. ED.

Nelson Mandela once remarked, “Only free men can negotiate; prisoners cannot enter into contracts.” Freedom is, universally, considered as one of the most cherished human rights. It is necessary not only for basic sustenance of an individual, rather, indispensable for the progress of a society as a whole. History has witnessed numerous struggles for independence across the world, aimed against apartheid, oppression and several other forms of exploitation. At the same time, there are several illustrations woven into the fabric of time where human endurance and mass movements occasioned into the extermination of several social/societal evils. However, despite the consciousness of the concepts of liberty and independence, unfortunately, even in the present century, a certain section of our society continues to endure a form of slavery and abuse in the form of manual scavenging. This practice which owes its genesis to India’s repressive caste system continues to thrive, notwithstanding almost seventy-three years of our independence. In fact, independence and freedom have continued to remain a mere illusion for the individuals subjected to this archaic, tyrannical and forced form of heroics. Regrettably, such individuals, who are prisoners of their caste, poverty and illiteracy are not in a position to negotiate for their freedom and better lives from those in power and their ‘so-called superiors.’ As per the Ministry of Social Justice and Empowerment’s Survey of Manual Scavengers in Statutory Towns there are approximately[1] 15,000 (fifteen thousand) manual scavengers in India, though, the actual number is estimated to be much higher. Unfortunately, due to lack of proper rehabilitative measures and societal apathy, the size of this group is ever increasing.

Indian judiciary has repeatedly emphasised on the importance of a dignified form of life. In fact, it is a settled law[2] that right to dignity is one of the essential elements of the right to life as provided under Article 21[3] of the Constitution of India (“the Constitution”). In this regard, the Supreme Court in Gian Kaur v. State of Punjab[4], observed,

“[t]o give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.”

The Constitution further, inter alia, prohibits any forms of forced labor and employment of children in factories or mine or any other hazardous employment under Articles 23 and 24, thereof.  These constitutional provisions are meant to strike at the core of several unfair practices, which are prevalent in India and in particular, to eradicate slavery in any of its forms. It is trite law[5] that the word “force”, under Article 23 of the Constitution includes not only physical or legal force, rather, also the force arising from the compulsion of economic circumstances. In fact, as per the Supreme Court in People’s Union for Democratic Rights v. Union of India[6],

“where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23.”

Unfortunately, despite these and several other constitutional safeguards, the practice of manual scavenging continues unabated across India. In fact, in an ever-enduring struggle against poverty and lack of free-will; in dingy and poorly lit dungeons, several lives are silently sacrificed and fed to quench the hunger of the ‘manual-scavenging dragon’.

Manual scavenging is generally understood[7] as a process of physical removal of human excreta from dry latrines and sewers. A person so engaged in or employed for manually carrying human excreta is termed as a manual scavenger under Section 2(j) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993[8] (“the 1993 Act”). Pertinently, under the 1993 Act it has been acknowledged that despite concerted efforts made to eliminate the dehumanising practice of employing persons for carrying human excreta on their heads or likewise, “the practice still persists in certain parts of the country”. Accordingly, the said Act was enacted, inter alia, with an object to prohibit “employment of manual scavengers as well as construction or continuance of dry latrines”.[9] Significantly, Section 3 of the 1993 Act empowers the State Government to issue notification prohibiting the engagement or employment of any person for manually carrying human excreta or for the construction or maintenance of a dry latrine. Further, Section 5 of the 1993 Act empowers the State Government(s) to appoint a District Magistrate or a Sub-Divisional Magistrate as an Executive Authority to ensure compliance of the provisions of the said enactment. The State Governments have been further empowered to make and notify, inter alia, one or more schemes for regulating conversion of dry latrines into, or construction and maintenance of, water-seal latrines, rehabilitation of the persons who were engaged in or employed for as manual scavengers, under Section 6 of the 1993 Act. Significantly, under Section 14 of the said enactment, failure to comply with or contravention of any of the provisions of the 1993 Act, or the rules or schemes made or orders or directions issued thereunder have been declared to be punishable[10] with imprisonment for a term which may extend to one year or with fine, which may extend to two thousand rupees, or with both. In turn, the provisions relating to the nature of offences, jurisdiction and limitation of prosecution are provided under Sections 16, 17 and 18, respectively of the 1993 Act.

Subsequently, noting that the existing laws, “have not proved adequate in eliminating the twin evils of insanitary latrines and manual scavenging”, Parliament enacted the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (“the 2013 Act”). The said Act, inter alia, aims towards the “prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families.” The 2013 Act provides for an exhaustive definition of manual scavenger, under Section 2(1)(g) thereof, as

“a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in an open drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed.”

Significantly, persons engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, are exempted from the definition of manual scavenger(s). Provisions regarding prohibition of insanitary latrines and employment and engagement of manual scavenger are provided under Section 5 of the 2013 Act. Section 5(2) thereof further obliges every occupier, at his own cost, to demolish or convert into sanitary latrine; every insanitary latrine existing on the date of commencement of this Act within the notified period[11]. As per Section 6 of the 2013 Act,

“[a]ny contract, agreement or other instrument entered into or executed before the date of commencement of this Act, engaging or employing a person for the purpose of manual scavenging shall, on the date of commencement of this Act, be terminated and such contract, agreement or other instrument shall be void and inoperative and no compensation shall be payable therefor.”

Further, Section 7 of the said enactment prohibits engagement or employment of any person for hazardous cleaning of sewers and septic tanks. Significantly, the contravention of the provisions under Sections 5 and 6 are punishable under Section 8 of the 2013 Act, “with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both, and for any subsequent contravention with imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both.”

Similarly, contravention of Section 7 of the 2013 Act is punishable in terms of Section 9[12] of the said enactment. Pertinently, as per Section 10 of the 2013 Act, all such offences are punishable only on a complaint, “made by a person in this behalf within three months from the date of the occurrence of the alleged commission of the offence.” Procedure of trial of such offences, in turn, is provided under Chapter VI (Sections 21 till 23) of the said enactment. Significantly, the offences under the 2013 Act are declared as cognizable and non-bailable under Section 22 thereof, which, in terms of Section 21 of the 2013 Act, may be tried summarily by the Executive Magistrate, duly empowered.

Chapter IV of the 2013 Act deals with the provisions relating to the identification of manual scavengers in urban and rural areas and for their rehabilitation. Provisions relating to the survey of manual scavengers in urban areas by Municipalities and application by an urban manual scavenger for identification are provided under Sections 11 and 12, respectively, of the 2013 Act. Section 13 of the said enactment, in turn, deals with a few of the measures which may be adopted for the rehabilitation of the manual scavengers. Significantly, such measures may, inter alia, include; issuance of photo-identity card and one-time cash assistance within one month of identification; allotment  a residential plot and financial assistance for house construction; issuance of training in livelihood skills, subsidy and concessional loan for taking up an alternative occupation on a sustainable basis, etc. Implementation and compliance[13] of the provisions of the said Act, including the supervision of the economic and social rehabilitation of manual scavengers may be carried out, inter alia, by the Vigilance Committee, State and Central Monitoring Committee, National Commission for Safai Karamcharis, etc., established in terms of the provisions of the 2013 Act. Pertinently, despite law in place, the practice of manual scavenging has not been eliminated completely, till date.

The judiciary has played a proactive role towards the eradication of manual scavenging practice in India and to ensure rehabilitation of the persons engaged in such tasks. As early as the year 2005, the Supreme Court[14], directed the Union and State Governments to file affidavits regarding the prevalence of manual scavenging in their respective departments or corporations. It was further directed to the said authorities that in case, “manual scavenging is still being resorted to, then that department or corporation to indicate with details what scheme it has for eliminating it and for rehabilitating the persons concerned and within what time-frame.” This order was subsequently[15] clarified to the effect that the “Secretary of Health; Secretary, Ministry of Social Welfare and Justice; Secretary, Ministry of Urban Development and the Department concerned which deals with manual scavenging shall file detailed affidavit after collecting information from the Municipality/corporation concerned or other local department where manual scavenging is carried on in any of the States/corporation/municipality/department.” However, the said directions were elucidated to be not applicable to banks, other public sector undertakings and financial institutions.

Subsequently, considering the material brought on record pursuant to the said directions, the Court[16] observed that “the practice of manual scavenging continues unabated. Dry latrines continue to exist notwithstanding the fact that the 1993 Act was in force for nearly two decades. States have acted in denial of the 1993 Act and the constitutional mandate to abolish untouchability.” Accordingly, the Supreme Court, while acknowledging the need for extermination of the problem of manual scavenging, directed all the State Governments and the Union Territories to fully implement the provisions of the 2013 Act and to “take appropriate action for non-implementation as well as violation of the provisions”.

In another instance, the Supreme Court[17] duly acknowledged that the State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. As per the Court, “no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others” Accordingly, the  Supreme Court, while observing that the human beings who are employed for doing the work in the sewers cannot be treated as mechanical robots, sought compliance from the State instrumentality, of previous directions of the  High Court of Delhi[18]. Pertinently, the High Court of Delhi vide its said order had directed, inter alia, for free medical examination and medical treatment to sewer workers; payment of compensation by State authorities to the family members of deceased sewage workers; placing on record by the said authorities of proposals and plans to phase out manual work and replace it with mechanised sewer cleaning; etc. Regrettably, even such directions have not proved adequate to uproot the weed of manual scavenging, till date.

Significantly, even under the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities, provisions for eradication of slavery, degrading human treatment, exploitation, etc. and promotion of equality, liberty, non-discrimination, etc., are provided. However, these provisions have not proved to be deterrent enough to exterminate the manual scavenging evil. The High Court of Delhi in Metro Waste Handling v. Delhi Jal Board[19], has observed,

“[u]nseen and forgotten for generations, our society has marginalised manual scavengers to its darkest corners. They are trapped in an eternal caste embrace, with no voice in the society or in any meaningful participation; their children are doomed to the same stereotypical roles assigned to them. The promise of equality, dignity and egalitarianism has eluded them altogether in the march and progress witnessed by the rest of our citizens.”

Regrettably, despite all the judicial directives and law in place, nothing substantial has changed in the years for these marginalised individuals. Irony is such that despite being involved in integral activities for the society, these individuals and their destinies are flushed down the drains without consideration or empathy. A society and the State like ours, which boasts of being a welfare State can no longer feign indifference towards these individuals; for the works that they do, is in no manner menial.

As Gandhi once remarked, “[t]he true measure of any society can be found in how it treats its most vulnerable members.” Therefore, time is ripe to acknowledge and work towards the emancipation towards such individuals. Further, complacency on mere eradication of few societal issues is not a solution where grave issues like manual scavenging persist even in the present century. In fact, it is incumbent to eradicate this social evil for once and for all in order to achieve the overall development of our country.


* Managing Associate, L&L Partners Law Offices

[1] http://mssurvey.nic.in/Private/Report/SurveyReportLocal.aspx (last accessed on 31.07.2020)

[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

[3]“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[4] (1996) 2 SCC 648

[5] People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235

[6] (1982) 3 SCC 235

[7]UN rights chief welcomes movement to eradicate manual scavenging in India -UN News – 31.01.2013 (https://news.un.org/en/story/2013/01/431022-un-rights-chief-welcomes-movement-eradicate-manual-scavenging-india)

[8] As per Section 1(2) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, the provisions of this enactment, “in the first instance to the whole of States of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal and to all the Union Territories and it shall also apply to such other State which adopts this Act by resolution passed in that behalf under clause (1) of Article 252 of the Constitution”     

[9] Section 2(c) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 ‘“dry latrine” means a latrine other than a water-seal latrine;” and Section 2(i) of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 “latrine” means a place set apart for defecation together with the structure comprising such place, the receptacle therein for collection of human excreta and the fittings and apparatus, if any, connected therewith;

[10] With an enhanced punishment for continued contravention i.e. “an additional fine which may extend to one hundred rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.” (Section 14 of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993)

[11] Section 4(1)(b) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

[12]“Whoever contravenes the provisions of Section 7 shall for the first contravention be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both, and for any subsequent contravention with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both.”

[13] Chapter VII of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

[14] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 611; order dated 29.04.2005.

[15] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 609; dated 14.11.2005.

[16] Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224; dated 27.03.2014

[17] Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568

[18] National Campaign for Dignity & Rights of Sewerage & Allied Workers v. MCD,  2008 SCC OnLine Del 948

[19] 2018 SCC OnLine Del 9319 

Cabinet DecisionsLegislation Updates

Union Cabinet gave its approval for signing a Memorandum of Cooperation (MoC)  in the field of cybersecurity between India and Japan.

The MoC will enhance cooperation in areas of mutual interest, which in­clude inter-alia, capacity building in the area of cyberspace; protection of critical infrastructure; cooperation in emerging technologies; sharing information on cyber security threats/incidents and malicious cyber activities, as well as best prac­tices to counter them; Developing joint mechanisms for practical cooperation to mitigate cyber threats to the security of Information Communication Technology (ICT) infrastructure etc.

India and Japan commit to an open, interoperable, free, fair, secure and reli­able cyberspace environment and to promote the Internet as an engine of innova­tion, economic growth, and trade and commerce that would be consistent with their respective domestic laws and international obligations, and with their wide-ranging strategic partnership.

Both sides, through the MoC, affirm cooperation in the international arena including in the United Nations; Discussing and sharing strategies and best prac­tices to promote the integrity of the supply chain of ICT products; Strengthening the security of ICT infrastructure through Government-to-Government and Business-to-Business cooperation; Continuing dialogue and engagement in Internet governance fora, and to support active participation by all the stakeholders of the two countries in these fora.


Ministry of External Affairs

Press Release dt. 07-10-2020

Case BriefsForeign Courts

Islamabad High Court: The Bench of Athar Minallah, C.J., Aamer Farooq and Miangul Hassan Aurangzeb, JJ., while observing that the right to a fair trial is the foundation of the rule of law and criminal justice system and its essence is to assure to every party that he or she, would be treated fairly and justly by an impartial and independent judicial forum; held that another opportunity should be extended to the Government of India to consider taking appropriate measures to ensure effective compliance with the judgment of the International Court of Justice wherein it had ordered Government of Pakistan to review and reconsider Kulbhushan Jadhav’s conviction and sentence and provide him with consular access. The Court also extended its assurance to Jadhav that his rights, especially that of fair trial is a vital factor while reviewing his sentence.       

Following the decision of the ICJ, the Govt. of Pakistan had promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020 to meet its obligations regarding giving effect to the judgment. As per Attorney General Khalid Javed Khan’s Report, Jadhav had reiterated his earlier stance and has preferred to pursue the remedy of clemency instead of invoking his right under the Ordinance of 2020. Attorney General further reported that the Government of India has been duly informed regarding the proceedings of this Court held on 03-08-2020 in pursuance of which concerned officials gave a detailed briefing to Jadhav regarding his right to avail the statutory remedy provided under the Ordinance of 2020. It was noted that the Govt. of India’s response is awaited.

Perusing the existing the scenario, the Bench observed that, “We are of the opinion that these proceedings and judicial review, on the basis of the judgment of the International Court, may not be meaningful and effective if Commander Jadhav and the Government of India decide not to exercise the course of action highlighted in the judgment of the International Court”. Concluding the Order and fixing the next proceeding on 06-10-2020, the Bench issued following directions to ensure effective review and reconsideration so as to give effect to the judgment of the International Court-

  • Attorney General shall ensure that copy of this order is provided to Jadhav
  • of Pakistan shall once again convey the orders passed in this petition to the Govt. of India to enable the latter to consider taking appropriate measures in order to ensure compliance with the judgment of the ICJ.
  • The Registrar of the Court to send to the learned amici curiae copies of the petition and documents placed on the record, so that they can assist this Court on the status of compliance with the judgment of the ICJ in the event that Jadhav or the Govt. of India decide against availing the remedy provided under the Ordinance of 2020

[Secretary, Ministry of Law and Justice v. Federation of Pakistan, Misc. Petition No. 01 of 2020, decided on 03-09-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

The US House of Representatives has passed a bipartisan legislation, urging China to peacefully de-escalate the situation with India along the Line of Actual Control (LAC). The House on Tuesday, had agreed to consider the bipartisan legislation sponsored by Indian-American Congressman, Raja Krishnamoorthi, along with Congressman Ro Khanna and lawmakers Frank Pallone, Tom Suozzi, Ted Yoho, George Holding, Sheila Jackson-Lee, Haley Stevens and Steve Chabot

This is the second legislative action that has been taken by the US on the issue; the first being an Amendment made to the National Defense Authorization Act (NDAA) by the House in which it unanimously slammed China’s  territorial assertiveness in the Galwan Valley in India and also in other disputed areas such as the South China Sea.

Such moves come across as a show of solidarity by the US, which claims to “stand with its allies and partners like India against Chinese military aggression.” The NDAA Amendment Resolution mentioned that, in mere ten days after reaching an agreement with India to de-escalate tension along the Line of Actual Control, China amassed 5000 soldiers and crossed into previously-disputed territory which was settled as Indian land after the 1962 Indo-China War. As a result of the skirmishes, 20 Indian soldiers and an unconfirmed number of Chinese soldiers were killed in Eastern Ladakh, the de facto border between China and India. The Resolution also acknowledged India’s commitment to peaceful methods of dispute-resolution.


                                                                                                Source: The Economic Times

[Image Source: Times of India]

Case BriefsInternational Courts

Permanent Court of Arbitration: In an unanimous decision by the Arbitral Tribunal concerning the “Enrica Lexie Incident”, it was held that Italy has breached Article 87, Paragraph 1, sub-paragraph (a) and Article 90 of the United Nations Convention for the Law of the Sea (UNCLOS) thereby constituting adequate satisfaction for the injury to India’s non-material interests. It was further held that as a result of the breach, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the ‘St. Antony’) and moral harm suffered by the captain and other crew members of the ‘St. Antony’, which by its nature cannot be made good through restitution.

As per the facts, on 15-02-2012, two Indian fishermen were killed off the coast of Kerala, aboard the St. Antony. India alleged that the two Italian marines aboard the Italian-flagged commercial oil tanker MV Enrica Lexie killed the fishermen. The Indian Navy then intercepted MV Enrica Lexie and detained the two Italian marines, therefore giving rise to the instant dispute between India and Italy.

Italy contended before the Tribunal that by directing and inducing the Enrica Lexie to change course and proceed into India’s territorial sea through a ruse, as well as by interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy’s freedom of navigation, in breach of UNCLOS Article 87(1)(a), and Italy’s exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS and abused its right to seek Italy’s cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS. It was further contended that by initiating criminal proceedings against the Italian marines, India violated Italy’s exclusive right to institute penal or disciplinary proceedings against the Marines, in breach of Article 97(1) of UNCLOS. The Indian side however contended that by firing at St. Anthony and killing the fishermen aboard that vessel, Italy violated India’s sovereign rights under Article 56 of UNCLOS and India’s freedom and right of navigation under Articles 87 and 90 of UNCLOS.     

The Tribunal comprising of Vladimir Golitsyn, J. (President), Jin-Hyun Paik, Patrick Robinson, JJ., Prof. Francesco Francioni and Dr  Pemmaraju Sreenivasa Rao (Arbitrators) perused the facts and the contentions put forth by the Countries. It was observed that the instant dispute involved the interpretation/ application of the UNCLOS. Determining that the Arbitral Tribunal has jurisdiction over the dispute, it was unanimously held that India’s counter-claims are admissible and that Italy has violated aforementioned provisions of the UNCLOS. However with a ratio of 3:2, the Tribunal also held that the Marines- Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, are entitled to immunity in relation to the acts that they committed during the incident, and that India is precluded from exercising its criminal jurisdiction over the Marines. Taking note of Italy’s commitment to resume criminal investigations into the St. Anthony firing incident, the Tribunal directed India to take the necessary steps in order to cease the exercise its criminal jurisdiction over the Marines. [Italian Republic v.  Republic of India, PCA Case No. 2015-28, decided on 02-07-2020] 

COVID 19Hot Off The PressNews

Government of India has undertaken evacuation operations from several countries in the wake of the COVID-19 outbreak to bring back Indian citizens as well as nationals from other countries.

As it became clear that Iran was facing a COVID-19 outbreak, Government of India started to undertake measures to ensure safety and security of its citizens in the country. Indian nationals in Iran include pilgrims, students and fishermen. On 7th March, 108 samples were received from Iran. These samples are being tested at the laboratory of AIIMS. Also, six scientists from the Indian Council of Medical Research (ICMR) have been stationed in Iran. Equipment and reagents have also been dispatched to enable them to setup a lab. The first batch of 58 evacuees from Iran has arrived on 10th March, 2020 with 25 men, 31 women and 2 children on board. All evacuees are asymptomatic at present.

So far, Government of India has evacuated 948 passengers from COVID-19 affected countries. Out of these, 900 are Indian citizens and 48 belonging to different nationalities including Maldives, Myanmar, Bangladesh, China, USA, Madagascar, Sri Lanka, Nepal, South Africa and Peru.

Earlier, as Wuhan city in Hubei province of China became the epicenter of the COVID-19 and there were hundreds of Indians stuck in the city, Air India operated two special flights for the evacuation efforts which brought back 654 passengers that included 647 Indian citizens.

The first batch consisting of 324 Indians were evacuated from Wuhan, China on 1st February. 104 of these were quarantined for monitoring at ITBP Chhawla camp and the rest 220 were housed in the army facility at Manesar. The second batch of 330 passengers (including 7 Maldivian citizens and two Indian Embassy officials who were on the ground to coordinate the evacuation efforts) arrived in India on 3rd February. 300 of these (including 7 Maldivians) were housed at ITBP Chhawla Camp and 30 were shifted to Manesar facility for monitoring.

All of these evacuees were placed in the isolation facilities for 14 days. They were tested twice and were found negative for COVID-19. They were discharged on 18th February, 2020.

On 26th February, Indian Air Force evacuated 112 passengers from Hubei province in China. Among these 76 were Indian citizens. The other nationals evacuated by Indian Air Force  included citizens of Myanmar, Bangladesh, Maldives, China, USA, Madagascar and South Africa. The passengers reached India on 27th February, 2020 and subsequently are housed at ITBP camp for a period of 14 days, as per protocol. They have tested negative for COVID-19 in the first test. The IAF flight had also carried medical supplies which were given as good-will gesture to China.

In addition, for the case involving the Japanese Cruise Ship, Diamond Princess, on 27th February, Air India flight carried an evacuation operation bringing back 124 passengers including 5 foreign nationals from Sri Lanka, Nepal, South Africa and Peru, from Port of Yokohama in Japan. The evacuees are housed at army facility in Manesar. They have tested negative in the first test.

As a measure of prevention, it is reiterated that as per the Travel Advisory issued by Government of India on 10th March, 2020, passengers with travel history to China, Hong Kong, Republic of Korea, Japan, Italy, Thailand, Singapore, Iran, Malaysia, France, Spain and Germany should undergo self-imposed quarantine for a period of 14 days from the date of their arrival, and their employers should facilitate work-from-home for such employees during this period.


[Source: PIB]

[Press Release dt. 11-03-2020]

NewsTreaties/Conventions/International Agreements

With entering the Agreement with Republic of Portugal, it will open avenues for cooperation to promote Maritime Transport between the two countries for better operation of their merchant fleets, cooperation to harmonize and unified their position with International Organization Institution, forums and conferences related to Maritime and Port activities.

It will also help both the countries to coordinate accession to international conventions so that the objectives of this Agreement can be strengthened.


Ministry of Shipping

[Press Release dt. 14-02-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

The Union Cabinet was apprised of a Memorandum of Understanding (MoU) signed between India and Iceland in the field of Fisheries.  The MoU was signed on 10-09-2019.

The salient features of the MoU are:

  1. Creation of facilities for exchange of scientists and technical experts and their proper placement, especially in areas of estimating Total Allowable Catches in offshore and deep sea areas;
  2. Provision of training to fisheries professionals from key fisheries institutions in the various management aspects on areas of modern fisheries management and fish processing
  3. Exchange of scientific literature research findings and other information.
  4. Exchange of experts/expertise to study the prospects of fishing.  Processing and marketing of products from high seas fisheries for entrepreneurship development.

The MoU will strengthen the existing friendly relations between India and Iceland and will enhance consultation and cooperation on Fisheries including consultation on bilateral issues.


Cabinet

[Press Release dt. 12-02-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

Union Cabinet has given its approval for the Memorandum of Understanding to be signed between Geological Survey of India (GSI), Ministry of Mines of the Republic of India and Geological Survey of Brazil – CPRM, Ministry of Mines and Energy of the Federative Republic of Brazil on “Cooperation in field of Geology and Mineral Resources”.

The MoU will provide an institutional mechanism between the Geological Survey of India, Ministry of Mines of the Republic of India and Geological Survey of Brazil – CPRM, Ministry of Mines and Energy of the Federative Republic of Brazil for cooperation in the field of Geology and Mineral Resources.


[Source: PIB]

[Cabinet]

[Press Release dt. 22-01-2020]

 

Cabinet DecisionsLegislation Updates

Union Cabinet has been apprised of the Agreement on cooperation in polar science between the Ministry of Earth Sciences (MoES), India and the Ministry of Education and Research, Sweden. The Memorandum of Understanding (MoU) was signed on 02-12-2019 during the visit of Their Majesties of the Kingdom of Sweden to India.

India and Sweden are both signatories to the Antarctic Treaty and to the Protocol to the Antarctic Treaty on Environmental Protection. Sweden as one of the eight “Arctic States” is one of the Member states in the Arctic Council whereas India has the Observer Status in the Arctic Council. Sweden has a vigorous scientific program in the Polar Regions, both in Arctic and Antarctic. India likewise, has sustained scientific research programs in both the Polar Regions as well as in the oceanic realm.

The collaboration between India and Sweden in polar science will enable the sharing of the expertise available with both Countries.


Cabinet

[Press Release dt. 08-01-2020]

[Source: PIB]