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Title: The Right to be Forgotten: Balancing Privacy and Information Freedom in India

Articles

Introduction

In an increasingly digital age, the rapid expansion of the internet and social media has brought incredible opportunities and complex challenges. One such challenge is the delicate balance between an individual’s Right to privacy and the public’s Right to access information. The “Right to be Forgotten” is a legal concept that has garnered significant attention worldwide. 

Understanding the Right to Be Forgotten

The Right to be Forgotten stems from the belief that individuals should have the power to control the availability of their personal information on the internet. It allows people to request the removal of specific personal data or information that is no longer relevant, outdated, inaccurate, or excessive. This Right primarily aims to protect an individual’s privacy and helps prevent potential reputational harm caused by obsolete or erroneous information.

The European Union’s Influence

The Right to be Forgotten concept gained widespread recognition with a 2014 ruling by the European Court of Justice (ECJ). The court held that search engines, such as Google, must consider individual requests to remove certain links containing personal information under certain circumstances. Following this ruling, Google implemented procedures to evaluate and act upon these requests. This landmark decision sparked global debates, with many countries considering or adopting similar measures.

The Right to be Forgotten in India

India does not have explicit legislation on the Right to be Forgotten. However, there have been discussions and debates about its implementation in the country. India’s legal system recognizes the Right to privacy as a fundamental right under Article 21 of the Constitution. Several cases, such as the Puttaswamy judgment in 2017, have solidified this constitutional protection for privacy.

Despite the absence of specific laws, Indian citizens can still seek redressal under existing legal provisions. For instance, they can approach the courts seeking the removal of certain information that infringes upon their Right to privacy or causes harm to their reputation. Additionally, individuals can utilize intermediary guidelines issued under the Information Technology Act of 2000 to seek the removal of objectionable content from social media platforms and websites.

Challenges and Debates

Implementing the Right to be Forgotten in India faces several challenges and controversies, making it a complex and sensitive issue. Balancing the Right to privacy with the Right to freedom of expression requires careful consideration from lawmakers and the judiciary to ensure that the law serves its intended purpose without becoming a tool for censorship. Here’s a more in-depth exploration of the challenges involved:

  1. Balancing Privacy and Freedom of Expression: One of the most significant challenges is striking the right balance between an individual’s Right to privacy and the public’s Right to access information. Critics argue that granting individuals the power to request the removal of certain information may lead to censorship, allowing individuals to suppress legitimate information that may be in the public interest. Establishing clear criteria and procedures for evaluating removal requests is essential to avoid misuse of the Right to be Forgotten.
  2. Criteria for Information Removal: Determining the criteria for removing information is a critical aspect of implementing the Right to be Forgotten. Identifying what constitutes irrelevant or outdated information, which is no longer relevant to the public discourse, is challenging and subjective—conversely, determining what qualifies as important historical or public interest data that should be preserved despite individual requests requires careful consideration and legal expertise.
  3. Global Jurisdictional Issues: The internet transcends national borders, presenting jurisdictional challenges when enforcing the Right to be Forgotten worldwidely. A removal request in one country may not directly impact the availability of information in another country. This raises questions about the scope and enforceability of data removal across different jurisdictions.
  4. Practical Implementation: The practical implementation of the Right to be Forgotten involves cooperation between various stakeholders, including government authorities, tech companies, and international organizations. Developing mechanisms for cross-border cooperation and harmonising data protection laws is crucial to address the challenges of global enforcement.
  5. Clarity in Legal Framework: The absence of explicit legislation on the Right to be Forgotten in India can lead to legal uncertainty. Establishing clear and comprehensive legal guidelines is essential to ensure the Right is exercised responsibly and moderately.
  6. Public Interest vs. Personal Privacy: Striking a balance between public interest and personal privacy is complex. Preserving the public’s Right to access information essential for historical, journalistic, or academic purposes while respecting an individual’s privacy rights requires careful deliberation.

Public Awareness and Education

Public awareness and digital literacy are crucial components of successfully implementing the Right to be Forgotten in India. Raising awareness about data privacy rights, the Right to be Forgotten, and responsible online behaviour can empower individuals to protect their personal information and make informed decisions about their digital footprint. Here’s an elaboration on the significance of public awareness campaigns and educational initiatives:

  1. Empowering Individuals: Public awareness campaigns can educate individuals about their rights regarding data privacy and the Right to be Forgotten. When people understand their rights and the potential consequences of sharing personal information online, they can make informed choices about the data they share and take steps to safeguard their privacy.
  2. Promoting Responsible Digital Citizenship: Digital literacy initiatives can teach individuals about responsible online behaviour. This includes understanding the implications of sharing personal data, being mindful of the content they post, and being aware of the potential risks associated with oversharing or engaging in harmful online activities.
  3. Encouraging Proactive Data Management: Awareness campaigns can emphasize the importance of regularly reviewing and managing one’s digital presence. This includes conducting periodic audits of online accounts, adjusting privacy settings, and being proactive in seeking the removal of outdated or sensitive information.
  4. Protecting Vulnerable Groups: Public awareness efforts can specifically target vulnerable groups, such as children, elderly individuals, and those with limited digital literacy. Ensuring these groups understand their rights and how to protect their privacy is essential in safeguarding them from potential risks and exploitation.
  5. Fostering Trust in Online Services: When individuals are more aware of their data privacy rights and the Right to be Forgotten availability, they are more likely to trust online services. This can increase user engagement and foster a positive environment for digital innovation and economic growth.
  6. Collaboration with Stakeholders: Public awareness campaigns can bring together government agencies, tech companies, civil society organizations, and educational institutions to address the challenges of data privacy collectively. Collaborative efforts can lead to more comprehensive and effective awareness initiatives.
  7. Cultivating a Privacy-Conscious Culture: By promoting a privacy-conscious culture, awareness campaigns can influence societal attitudes towards data protection. A culture that values privacy and respects individuals’ rights can create a more responsible and respectful online community.
  8. Addressing Misinformation and Myths: Digital literacy initiatives can also tackle misinformation and myths surrounding data privacy and the Right to be Forgotten. By providing accurate information, individuals can make informed decisions based on facts rather than misconceptions.

Collaboration with Tech Companies

Collaboration between government authorities and tech companies is essential in effectively implementing the Right to be Forgotten and addressing the practical challenges that arise in the digital landscape. The role of tech companies in managing and processing vast amounts of user data has become increasingly significant, making their cooperation crucial for successfully implementing the Right to be Forgotten. Here’s an in-depth look at the importance of collaboration and the need for transparent and standardized procedures:

  1. Data Expertise: Tech companies possess in-depth data management, storage, and retrieval knowledge. Collaborating with them allows government authorities to tap into this expertise and better understand the technical aspects involved in processing data removal requests.
  2. Streamlined Processes: Developing standardized procedures for evaluating removal requests can help streamline the Right to be Forgotten implementation. This ensures consistency in decision-making and facilitates a more efficient response to individual requests.
  3. Balancing Rights: Collaboration between tech companies and government authorities can help strike a balance between privacy protection and information freedom. Transparent procedures ensure that legitimate requests for data removal are honoured while preventing abuse of the Right to be Forgotten for censoring information.
  4. Addressing Jurisdictional Challenges: As tech companies operate globally, they often face challenges complying with various countries’ legal requirements. Collaborating with government authorities can help develop mechanisms to address cross-border data removal requests and ensure cooperation across jurisdictions.
  5. Accountability and Trust: Transparent procedures and collaboration foster accountability, enhancing public trust in handling data removal requests. When individuals trust that their demands are addressed fairly and responsibly, they are more likely to engage with tech companies and exercise their rights.
  6. Feedback Mechanisms: Collaboration allows for establishing feedback mechanisms between tech companies and government authorities. This fosters an ongoing dialogue to improve data privacy practices, ensure compliance, and address emerging challenges.
  7. Access to Resources: Tech companies have access to sophisticated tools and technologies that can facilitate data processing and identifying information subject to removal. This access can expedite the response to removal requests and enhance the effectiveness of the Right to be Forgotten.
  8. User Education: Collaborating with tech companies allows for targeted user education initiatives. Companies can inform their users about their rights, the process for requesting data removal, and the broader importance of data privacy.

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Global Harmonization

Encouraging international cooperation in data protection and privacy is essential to address the challenges posed by the global nature of the internet. As the online world knows no borders, data flows seamlessly between countries, giving rise to jurisdictional complexities and potential conflicts in enforcing data protection laws. In this context, global harmonization of data protection laws can be crucial in fostering a unified approach to privacy and information freedom across different nations.

Benefits of Global Harmonization

  1. Consistency and Legal Clarity: A globally harmonized framework would provide consistency and legal clarity for businesses, individuals, and governments. It would establish clear guidelines and standards for data protection, reducing ambiguity and ensuring a uniform understanding of privacy rights and obligations.
  2. Enhanced Data Security: Collaboration between countries in developing robust data protection measures can help improve data security practices globally. Cybersecurity threats often transcend national boundaries, and cooperation can facilitate sharing best practices and threat intelligence to bolster online safety.
  3. Facilitating Cross-Border Business: A harmonized approach would simplify cross-border data transfers, making it easier for businesses to operate internationally without grappling with varying and sometimes conflicting data protection regulations.
  4. Strengthening User Trust: A global consensus on data protection can foster greater user trust in digital services. When individuals feel confident that their data is safeguarded, they are more likely to participate in online activities, promoting the growth of the digital economy.
  5. Resolving Jurisdictional Challenges: Harmonized data protection laws would help address the difficulties of determining which country’s laws apply when data is stored or processed in multiple jurisdictions. This can prevent legal conflicts and ensure effective enforcement of privacy rights.

Conclusion

The Right to be Forgotten is an evolving concept, and its implementation in India is still a matter of debate and discussion. While the country recognizes the Right to privacy as a fundamental right, the extent to which it should be exercised on the Internet remains a contentious issue. Striking a balance between an individual’s Right to privacy and the public’s Right to access information poses a significant challenge for policymakers and the judiciary.

As the digital landscape continues to evolve, developing comprehensive legislation that protects individuals’ privacy without stifling freedom of expression and access to information is essential. A nuanced approach that considers both individual rights and public interest will be crucial in addressing the complexities of India’s Right to be Forgotten. Through collaboration, public awareness, and thoughtful policy-making, India can find a balanced solution that respects privacy while upholding the principles of information freedom in the digital age.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Money Laundering and the Case of Hasan Ali Khan v. Union of India, 2011

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Meaning of money laundering

Money laundering is the practice of concealing the origin of monies received from unlawful sources and transferring them to legitimate ones in order to avoid being prosecuted, convicted, and having the proceeds of the crime seized. For the purpose of making illegally obtained money appear legitimate, criminals employ a wide range of money-laundering strategies.

The definition of Money Laundering which is given by Financial Action Task Force (FATF) is “the processing of criminal proceeds to disguise their illegal origin” in order to “legitimise” the “ill-gotten gains of crime”.

What It Is and How It Works

Illegal organisations who desire to successfully employ money gained unlawfully need to master the art of money laundering. It is unsafe and ineffective to deal with significant amounts of unlawful currency. Criminals require a mechanism to deposit money in reputable financial institutions, but they can only do this if the money appears to come from reputable sources.

Placement, layering, and integration are the common three processes in the money laundering process

  • Placement secretly introduces “dirty money” into the established financial system.
  • Layering conceals the source of the money through a series of transactions and bookkeeping tricks.
  • The now-laundered money is taken out of the legal account in the final phase, integration, to be utilised for whatever the crooks have planned for it.

Please take note that this template might not apply in real-world scenarios. All three steps in money laundering might not be necessary, or some steps might be merged or done numerous times.

From the very simple to the most complicated, there are several ways to launder money. Using a legitimate, cash-based business run by a criminal organisation is one of the most popular tricks. For instance, if the company operates a restaurant, it can overstate daily cash collections in order to transfer unlawful funds through the eatery and into the restaurant’s bank account. The money can then be withdrawn as required after that.

Case Study: Hasan Ali Khan v. Union of India, CRIMINAL BAIL APPLICATION NO.994 OF 2011

First, let’s understand Hasan Ali Khan’s identity.

The 67-year-old Khan was little known outside of his Pune business community and the horse racing circles when he first entered the national headlines in 2007 as one of the largest money launderers in the nation when the Income Tax raided his homes years ago. Khan lived in Hyderabad with his sisters and a brother before settling down in Pune around 2000. According to authorities, his father worked for the excise agency.

Khan is a well-known businessman who has tried his hand at a variety of companies in Hyderabad. He developed a car rental company, managed a metal and scrap trading company, and started a finance company that was later charged with defrauding various institutions.

In 2007, Khan was looked into by Indian officials on accusations of money laundering. He deposited $8 billion into a Swiss bank account. With the aid of businessmen Kashinath Tapuriah, from Kolkata, and Praveen Kumar, from Delhi, he allegedly used hawala to hide billions in Swiss bank accounts.

The allegation against Hasan Ali Khan and Kashinath Tapuriah is that they have committed the offence punishable under Section 4 of the Prevention of Money-Laundering Act, 2002, (hereinafter referred to as “the PML Act”). The said case arises on the basis of a complaint filed by the Deputy Director, Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India.

On the said date, the Income Tax Department carried out a search in the premises owned and/or possessed by the applicant and a sum of Rs.88,05,000/- of cash was discovered and seized from his home in Peddar Road, Mumbai. Several imported watches and some jewellery were also discovered during the investigation and taken into custody.

Additionally, a probe was carried out in accordance with the Foreign Exchange Management Act of 1999, or “FEMA.” Show-cause letters were sent to Khan for alleged violations of Sections 3A and 4 of the FEMA for dealing in, acquiring, and holding foreign currency in his account with the Union Bank of Switzerland, AG, Zurich, Switzerland, in the amount of US$ 80,004,53,000, or approximately Rs. 36,000 crores in Indian currency.

Investigations further showed that Shri Hassan Ali Khan had submitted fake documents, given fraudulent testimony, and concealed the fact that he previously held a passport in order to get at least three passports in his name. In addition to the foregoing, it was also stated that investigations had shown he had sold a diamond from the Nizam of Hyderabad’s collection and had transferred the proceeds of the sale to the Barclays Bank in the UK using his account at Sarasin Bank in Basel, Switzerland.

Based on the foregoing information, the applicant was detained on March 7, 2011. On March 8, 2011, he appeared before the Special Court to request his remand into the care of the Directorate of Enforcement. It appears that the Special Court first ordered the Applicant to be kept in jail but then denied the Directorate of Enforcement’s request to keep the Applicant in custody in an order dated March 11, 2011. The said order of the Special Judge, PMLA, Mumbai, rejecting the applicant’s prayer for bail was challenged before the Bombay High Court in  Bail Application No.994 dated 2nd July, 2011. Following a contentious hearing, the Bombay High Court granted bail to the applicant in an order dated August 12, 2011.

Case Study: Union of India v. Hasan Ali Khan & Anr CRIMINAL APPELLATE N0. 1883 OF 2011  (Arising out of SLP (Crl.) NO. 6114 of 2011

The Special Leave Petition out of which this Appeal arises has been filed against the judgement  and final order dated 12th August, 2011, passed by the Bombay High Court in Crl. Bail Application No.994 of 2011, whereby the High Court granted bail to Hassan Ali Khan.

Therefore, it was argued that the Bombay High Court’s decision to grant bail to Respondent No. 1 was based on an inaccurate reading of the law, and as a result, the aforementioned order granting bail was, therefore, liable to be set aside.

Additionally, the learned counsel for respondent said that it had never been proven that the funds held in Respondent No. 1’s accounts in Switzerland, the United Kingdom, and Indonesia had been projected as clean cash. Furthermore, the claim that the jewellery belonging to the Nizam was stolen was based solely on allegations, and there was no evidence to back up this claim given the case put forth by Respondent No. 1 that he had arranged for the sale of some of the jewellery, for which he had been paid a commission of US$30,000, which he had spent in Dubai.

The learned counsel for respondent argued that once bail had been granted, even if the special leave petition was maintainable, the High Court or the Court of Sessions had the authority to revoke the grant of such bail under Section 439(2) Cr.P.C. As a result, all the guidelines established by this Court regarding the revocation of bail would have to be taken into account before the order granting bail could be revoked.

Even though the Respondent No. 1 is accused of having committed the crimes as early as 2007, up until his arrest on May 7, 2011, there had been no claims that he had somehow hampered the investigation or tampered with any of the witnesses. Even the concern expressed by the appellant that the Respondent No. 1 might flee to another country after being released on bail, was unfounded because such attempts, if they were made at all, could be prevented by using a variety of tactics. Such a claim could not be the justification for revoking the bail which had already been granted to the Respondent No.1.

Furthermore, after his original passport was ordered to be deposited, the Respondent No. 1 obtained three additional passports in his name, which supports the concern that if freed on bail, the Respondent No. 1 may flee.

The distinction between an application for cancellation of bail and an appeal filed against a bail order cannot be discarded when it comes to Section 439(2) Cr.P.C. The two are on different bases. While the basis for cancelling bail would be post-bail incidents that showed abuse of the privilege, an appeal against a bail-granting ruling would call into question the validity of the order itself.

Therefore it is believed that the High Court’s order needs to be changed after adopting a fresh perspective on the facts that are unique to this case and in light of the information provided above. As a result, this appeal is allowed and the judgement of the Bombay High Court is set aside and the bail is cancelled which was granted to Respondent No.1.

Conclusion

Money laundering is a severe offence that is not to be handled lightly and is not a local crime. Financial organisations like the Insurance Regulatory and Development Authority (IRDA), Reserve Bank of India (RBI), and Securities and Exchange Board of India (SEBI) are covered by the Prevention of Money Laundering Act, 2002, which also applies to all intermediaries, insurance providers, banks, and mutual funds. Perhaps as a result of this, the Supreme Court maintained the constitutional legality of the broad authority granted to the ED by the Prevention of Money Laundering Act, 2002. 

Numerous anti-money laundering procedures have been implemented in India, yet there are several flaws that prevent them from working as intended. The reason for this is that because of technological advancement, money launderers can use cyber tactics to conceal the source of criminal activity’s revenues.

However, because the RBI is unable to control them, Hawala transactions cannot be prevented. Crimes involving money laundering are not exclusive to a single organisation but rather are pervasive.  The government needs to put more emphasis on the issue of money laundering and black money.

Works Cited

  • Bairagra, Amrut. “Money Laundering in India.” TaxGuru, 28 January 2022, https://taxguru.in/finance/money-laundering-india.html. Accessed 22 July 2023.
  • “Hasan Ali Khan vs Union Of India on 12 August, 2011.” Indian Kanoon, 12 August 2011, https://indiankanoon.org/doc/744839/. Accessed 22 July 2023.
  • Kabir, A. “Union Of India vs Hassan Ali Khan And Anr on 30 September, 2011.” Indian Kanoon, 30 September 2011, https://indiankanoon.org/doc/3764/. Accessed 22 July 2023.
  • “Money Laundering: What It Is and How to Prevent It.” Investopedia, https://www.investopedia.com/terms/m/moneylaundering.asp. Accessed 22 July 2023.

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Cartels and Competition Law in India

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Abstract

This Article gives an analysis on the topic of cartel and their nature and new era cartels. It also looks into the matter of impact of cartels on the competition in a market and how Indian competition law comes in rescue of market from the impacts of cartel and lastly, we would discuss the recent amendments to the competition act regarding cartel operation.

Introduction

A cartel is a group of similar independent companies who join together to control prices and limit competition[1] for example, Oil cartels like OPEC or OPEC+, they manage and influence the prices of crude oil all around the globe.

Definition & Nature

Cartel has been defined under section 2(c) as –

“an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services”[2]

The General nature of a cartel involves increase in the profitability of its members and overall increase in the strength of cartel in the market. These cartels usually undertake four forms of activities to influence the market, they are –

  • Price Fixing, includes determination of Price for commodity, setting a minimum resale price etc
  • Collective bidding
  • Sharing of markets as per areas or sectors or products
  • Controlling production

Laws on cartel

Cartel arrangement which aims at distortion of competition through controlling market conditions and determining prices are held illegal per se and violative of competition act. These arrangements are clearly violation of Section 3 of the competition act which prohibits all those agreements which causes or likely to cause AAEC[3].

Now, referring to the definition, It is quite clear that these cartels are based out off agreement and as per section 2(b) of the act as –

“agreement” includes any arrangement or understanding or action in concert[4]

Generally, these agreements are not based out in a formal setting, when it aims to control the market, they are based out in a clandestine manner usually behind the closed door so, proving its existence is usually difficult but as per the Raghavan Committee “there is no need for an agreement to be formal or written to be considered illegal. In principle any kind of agreement is illegal if it violates law.”[5]  And similar view has also been held in the case of Director General (Supplies & Disposals) v. Puja Enterprises, 2013 SCC OnLine CCI 55, “It may be observed that the definition of ‘agreement’ as given in section 2(b) of the Act requires inter alia any arrangement or understanding or action in concert whether or not formal or in writing or intended to be enforceable by legal proceedings. The definition, being inclusive and not exhaustive, is a wide one. The understanding may be tacit, and the definition covers situations where the parties act on the basis of a nod or a wink”[6].

And to prove the existence of these arrangement there is need of evidence but usually finding direct evidence in these situations is usually difficult and next to impossible as these arrangements are so clandestine in nature that many times evidences are destroyed. So, finding its whole existence is under the shades and it could only be proved trough various circumstantial evidence implicating the existence of such arrangement. As the same thing has been observed in Director General (supra) “There is rarely a direct evidence of action in concert and the Commission has to determine whether those involved in such dealings had some form of understanding and were acting in co- operation with each other. In most cases, the existence of an anti-competitive practice must be inferred from a number of co-incidences and indica which, taken together, may, in the absence of another plausible explanation, constitute evidence of the existence of an agreement.[7]” and Hon’ble SC in Rajasthan Cylinders & Containers Ltd. vs UOI (2020) 16 SCC 615 “There may not be a direct-evidence on the basis of which cartelisation or such agreement between the parties can be proved as these agreements are normally entered into in closed doors. The standard of proof which is required one of Probability,”[8]

Here, standard of probabilities is such that for a fact is said to be true when either the court believes it to be true or its existence is so probable that any prudent man, ought under the circumstances of a particular case, to act upon the supposition that it exists meaning if a prudent man would be given similar circumstances to dealt with then the analysis of the given circumstances would make him conclude about the existence of a cartel. These circumstantial evidences might include, parallel business behaviour, exchange of sensitive information etc.

The competition law in India proscribes all those arrangement which causes or likely to cause AAEC and Cartels are always presumed to AAEC, as has been held by Raghavan Committee that “The presumption is that such horizontal agreements and membership of cartels lead to unreasonable restrictions of competition and may, therefore, be presumed to have an appreciable adverse effect on competition.”[9] And also held in FICCI – Multiplex Association of India v United Producers/Distributors Forum(2009), where Commission specifically held that Cartels are most pernicious form of arrangement and they are presumed to AAEC under section 3 (3) of the act.[10]

Indian Laws on competition have provision to tackle the problems posed by Horizontal and Vertical agreement and it also has provisions to make them liable for their actions as Section 27 provides for imposition of penalty for formation of cartels which could amount to three times or ten percent of the profit in the year of agreement, whichever is higher. And Commission has powers to initiate Investigation under section 26 of the act.

It may seems like the competition act got enough teeth to bite threat to competition but that’s definitely not the case in real world as many times these cartels form indirect arrangements for collusion, commonly known as a Hub & Spoke Cartel, where a Hub provides all the necessary support for the existence and survival of cartel, its support ranges from providing sensitive information among rivals, calculating prices, organising meetings etc. and all these activities are connected to spokes which cooperatively controls the market. In this new era there is generally an involvement of an Algorithm which usually works as a hub for the enterprises and creates a cartel, these arrangements are generally tacit in nature thus forming an tacit algorithmic cartel. CCI has also explained these arrangement as “A hub and spoke arrangement generally requires the spokes to use a third-party platform (hub) for exchange of sensitive information, including information on prices which can facilitate price fixing. For a cartel to operate as a hub and spoke, there needs to be a conspiracy to fix prices, which requires existence of collusion in the first place, earlier mentioned arguments clearly indicates these circumstances which proves the existence of hub and spoke cartel. It also held that a hub-and-spoke cartel would require an agreement between all parties to set prices through the platform, or an agreement for the platform to coordinate prices between them”[11]

Prior to the amendment, Competition law only prohibits arrangement between traders at same level of production meaning it covers only Horizontal agreements but this Hub & spoke arrangement has element of both horizontal and vertical arrangement thus it lacks powers to penalise the offenders leading disruption of competition in the market. But after the competition amendment act 2023, it has amended the definition of cartel in section 3(a) of the act as –

“Provided further that an enterprise or association of enterprises or a person or association of persons though not engaged in identical or similar trade shall also be presumed to be part of the agreement under this sub-section if it participates or intends to participate in the furtherance of such agreement.”[12]

After this amendment any arrangement between enterprises aiming at disruption of competition would be prosecuted irrespective of their position in the production level, irrespective of the nature of trade or business conduct of the enterprises meaning all kinds of tacit algorithmic cartels would be prosecuted with provisions of penalty as per section 27.

Conclusion

This amendment is in right direction as the time is changing, and with more influence of technology in the business. It would eventually create new loop holes to exploit by these violators of competition, thus to maintain fairness, equity and uphold the law of natural justice, strong steps had to taken in order to tackle and empower the commission in maintaining the just level field of competition in the market.

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Written By – Shreyanshu Gupta

[1] https://dictionary.cambridge.org/dictionary/english/cartel

[2] Section of 2(C) of the Competition Act 2002

[3] Appreciable Adverse Effect on Competition

[4] Section 2(b) of the Competition act 2002

[5] Para 4.3.2 of the Raghavan Committee

[6] Para 25, Director General (Supplies & Disposals) v. Puja Enterprises, 2013 SCC OnLine CCI 55

[7] Para 26, Ibid

[8] Para 81, Rajasthan Cylinders & Containers Ltd. vs UOI (2020) 16 SCC 615

[9] Para 4.3.8, Raghavan Committee

[10] Para 23.6 FICCI – Multiplex Association of India v United Producers/Distributors Forum(2009)

[11] Para 18 Samir Agarwal vs ANI Technologies 2018 SCC OnLine CCI 86

[12] Section 3 (a) of the Competition amendment act 2023, https://www.cci.gov.in/images/legalframeworkact/en/the-competition-amendment-act-20231681363446.pdf

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Laws on Hate crime in India.

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Introduction.

 

There exists no clear definition of a hate crime. However, common understanding suggests that a hate crime is any offence that is committed and motivated by the perpetrators bias against a certain person or group. This bias may be against religion, race, caste, economic status, sex, etc. It may either be an act done against a person, such as violent acts, threats, assault, etc, or it maybe done against a property, such as damage to property, trespass, etc. 

 

It takes different forms in different parts of the globe. In India, most hate crimes are motivated by religious and caste differences. However, it is not limited to only these two aspects. 

 

There exists no legal framework or legislation to govern hate crimes in India. The number of hate crimes across the country. It has come to the attention of the Supreme Court that there have been a growing number of cases with regards to hate speech. The apex court was of the opinion that India being a secular country, there must be no leeway for crimes of such nature. 

 

Difference between a crime and a hate crime.

 

In criminal law, it is the aspect of mens rea, i.e, intention that is given utmost importance. It is necessary to prove that the accused had an intention to commit the crime. In hate crimes, there exists no clear intention for committing a crime. It is governed more by the motivation, than the intention. It is a biased crime.

 

However, many at times, in different legal  states, people get away with committing hate crimes due to the fact that the motive to commit a crime is rarely investigated. Indian legislations do not recognize the term ‘hate crime’. It is no longer an idea that may be linked to the existing provisions of the Indian Penal Code. Rather, it is a form of crime, and an independent idea in itself. 

 

The first component of a hate crime is the conduct that qualifies as criminal activity under general criminal law. The “basic offence”  refers to a criminal offence. Although there are slight variances in the legal systems of different nations, all of them have a common set of fundamental criteria that render certain kinds of acts as criminal. As a result, there are some distinctions in the kinds of behaviour that add up to wrongdoing. A fundamental offence must have been committed in order for there to be a hate crime.If there is no fundamental offence, there cannot be a hate crime.

 

The second component of a hate crime is the commission of the offence while engaging in a certain mental process, or “bias,” as it is referred to in this text. This feature of the biased cognitive process separates hate crimes from other sorts of crimes. This implies that the wrongdoer deliberately picked the victim of the wrongdoing based on a certain guaranteed attribute.

Reasons for committing hate crimes.

 

There exist many reasons as to why a hate crime maybe committed. These include:

 

  1. Religious and Ethnic differences-

Tensions between various religious and ethnic groups exist in India, which is a varied nation. Violence and hate crimes frequently result from these tensions.

  1. Caste Discrimination-

Caste-based prejudice has a long history in India, which has led to the marginalisation of some communities and the commission of hate crimes against them.

  1. Social Media and False Information:

 False information and hate speech can propagate on social media, escalating tensions and encouraging the commission of hate crimes.

  1. Regionalism, Religionism-

The offender may harbour hatred for anyone who is not a member of or does not belong to the group they identify with.

  1. Differences in opinion-

On a broader scale, the target can only serve as a proxy for an idea that the offender finds objectionable, like immigration.

 

Instances of Hate crime in India

 

The idea and happenings of hate crime is not new. It has been prevalent in society for many years now. A global example of a hate crime is the Nazi regime under the regime of Adolf Hitler. During his regime, people belonging to a particular religious group, the Jewish community were tortured, harassed and prosecuted. They were sent to concentration camps, where they were treated in inhuman manners and later sent to gas chambers, where they were killed. The main motive behind committing of such an act was the belief that the particular community was inferior, whereas the German community was superior.

 

There have been many more instances globally of hate crimes being committed to a large extent. Another prominent example in the Khmer Rogue in Cambodia under the regime of Pol Put.

 

India is no exception to hate crimes. Though not perpetrated by the State itself, due to the extent of diversity, and the religious differences that are existent within the State, there have been multiple instances of hate crimes. 

 

One such instance is the discrimination against the minority Hindu Kashmiri Pandits in India. For the individuals who originally belonged to the state, Kashmir became a hellish place because of the Muslim predominance there. Pandits from Kashmir were given the option of leaving Kashmir or preparing to pass away. This had the result of men carrying firearms into the streets to kill innocent people in order to assert their territorial rights and create an Islamic state. During that time, countless Kashmiri pandits perished. The Kashmiri Pandits left in large numbers. Overnight, millions of people fled for their lives.

 

The conflict surrounding Ayodhya, the demolition of the Babri Masjid, is also an instance of hate crime against a religious group. It led to riots, and the killings of many innocent lives.

 

Legislations with respect to hate crime.

 

There exists no laws or legislations that exclusively deal with the issue of hate crime. However, there are provisions in the IPC that govern hate speech, as well as other offences that maybe implemented while dealing with crimes of such a nature. 

 

The above mentioned provisions are,

 

  1. Section 153A– condemns ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony’
  2. Section 153B  penalizes ‘imputations, assertions prejudicial to national integration’.
  3. Section 505(1) and (2) punishes ‘publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.’
  4. Section 295A  punishes deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs”. 

There is clearly an urgent need for clarification regarding what type of law is required to stop such crimes from happening in the future. It is important to close any existing gaps as quickly as feasible. In a secular nation like India with a wide variety of faiths, languages, and ethnicities, these crimes have the potential to upend the social order and encourage sectarian bloodshed. To maintain the delicate balance and peaceful coexistence of so many tribes and groups, these regulations will be necessary. 

Conclusion.

In conclusion, the legislation on hate crimes would be extremely important in addressing and thwarting acts of prejudice- and intolerance-based violence, antagonism, and discrimination. The protection of vulnerable communities’ rights and dignity as well as the promotion of an inclusive and peaceful society depend on these laws. 

The government must aim to make it very apparent that any type of bias-motivated violence will not be tolerated by including hate crime. The legal framework must include provisions and statutes that are to function as a deterrent and foster a culture of respect and understanding by holding offenders accountable and imposing increased penalties for hate-motivated offences.

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Written by- Varada Hawaldar

 

[1] https://www.legalserviceindia.com/legal/article-8812-hate-crime.html

[2]https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs13&div=116&id=&page=

[3]https://legalvidhiya.com/hate-crimes-their-nature-and-the-laws-connected-with-them/ 

 

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Evolution of judicial activism in India.

Articles

 

Introduction:

 

It is a consented understanding that the main responsibility of the judiciary is to ensure justice is delivered. They have the power to interpret the existing laws and legislations, and create new laws through precedents. In many cases, the judiciary has extended the scope of the law, and interpreted the law in vague matters. This overreach of the judiciary in matters that don’t fall in its scope, can be termed as judicial activism.

 

In India, the judicial body is viewed as the protector of the Indian Constitution. In the process of protecting fundamental rights, as basic human rights, the Indian judiciary has shown a great mark in judicial activism. 

 

Genesis of Judicial activism.

 

Through judicial review processes in the United Kingdom, the concept of Judicial activism first emerged. The idea of judicial review was first laid down in the case of Thomas Bonham v. College of Physicians case [1]. It refers to the power of the Court to review any piece of legislation, and deem it void if it is violative of any fundamental rights or human rights, or is not in consonance with what is laid down in the Constitution.

 

In the American perspective, the case of Marbury v. Madison [2] stands very significant, as it was the first time the US Supreme Court struck down a law, claiming it to be violative of the US Constitution. 

 

However, in his article “The Supreme Court: 1947,” [3] written by Arthur Schlesinger Jr. and published in the January 1947 issue of Fortune Magazine, Schlesinger used the precise phrase “judicial activism” to describe his actions. He adopted the phrase to designate the American Supreme Court judges at the time as judicial activists, self-control advocates, and judges who fell somewhere in the middle between the two categories. 

 

Definitions of Judicial Activism.

 

There exists no exact definition of the term “judicial activism”.In a broad and simple sense, it refers to the judiciary’s constructive participation in resolving issues brought to its attention by the executive or legislative branches in order to ensure the effective coordination of all three essential pillars.

 

Judicial activism, according to Black’s Law Dictionary, is a way of thinking about how judges make decisions where they let their own opinions about public policy, among other things, influence them.

 

In India, judicial activism means that the Supreme Court and the high courts, but not the lower courts, have the power to declare laws unconstitutional and void if they violate or are inconsistent with one or more constitutional provisions.

 

Judicial Activism in India.

 

Initially more of a technocratic court, the Supreme Court of India has started to become increasingly involved in constitutional interpretation. The court transformed into an activist by its involvement and interpretation of the law and legislation, but the process took years and was slow. The court’s early and rash declaration regarding the purpose and character of judicial review is where judicial activism first emerged.

 

For the first ten years following independence, judicial activism virtually disappeared as the executive and legislative branches of the government actively controlled and meddled with the judiciary’s operations. The Apex court began to examine the judicial and structural views of the constitution in the 1970s.

 

The first time the Indian judiciary showed instances of judicial activism was in the case of Keshavanand Bharti v. State of Kerala [4]. It is a case that took place right before the declaration of the emergency. The Indian Supreme Court ruled that the executive branch lacked the authority to interfere with or alter the constitution’s fundamental principles. Although the judiciary was unable to stop the urgency imposed by the then-prime minister Indira Gandhi, the idea of judicial activism began to gain more traction as a result.

 

Important cases of Judicial Activism. 

 

Since the judgement of the Keshavanand Bharti case, there was a growth of judicial activism across the country. There have been many landmark judgements passed through this concept. Some of the most famous judgements with regards to judicial activism are:

 

  1. ADM Jabalpur v. Shivkant Shukla [5]

 

This case produced the Supreme Court ruling on judicial activism that was the most divisive. The majority of the bench decided that in circumstances of extreme emergencies, such those that occurred between 1975 and 1977, a legal process may be developed that would allow for the taking of even human life. The decision’s author, Justice Chandrachud, came under fire for writing a pro-government opinion, yet the legal theory he offered was a superb example of judicial activism.  The legitimacy of legislation mandating acceptance in order to retain the nation’s sovereignty in the event of internal or external assault has been maintained by Justice Chandrachud’s interpretation of Article 21.

 

  1. Hussainara Khatoon (I) v. State of Bihar [6]

 

The newspaper articles reflected the inhumane and savage treatment of the detainees awaiting trial. Numerous defendants had already served the maximum amount of time in prison without being charged with a crime. Under article 21 of the Indian Constitution, a lawyer filed a writ petition. The supreme court acknowledged it, declared that the right to a fast trial is a fundamental freedom, and ordered the state to offer free legal services to those who are now being held without bail or final release in order to enable them to obtain justice.

 

  1. Sunil Batra v. Delhi Administration [7]

 

The court used its arbitrary jurisdiction to treat a letter that was written by a prisoner as a petition. According to the letter, the head warden brutally hurt and abused a different prisoner. The court ruled that technicalities could not prevent it from upholding peoples’ civil liberties.

 

  1. Golaknath v. State of Punjab [8]

 

In the concerned case,when addressing the constitutional legitimacy of the 17th Amendment to the Constitution, the Supreme Court of India invented the concept of “prospective overruling” by ruling that Parliament lacked the ability to change Part III of the Constitution or to curtail any of the essential rights.

 

Conclusion

 

In conclusion, judicial activism in India has been crucial in advancing social justice and reshaping the country’s legal system. The Indian judiciary has successfully filled the gaps created by the legislative and executive branches through proactive judicial interventions, assuring the protection of fundamental rights and holding the government responsible for its deeds. The rights of marginalised people, environmental protection, gender equality, and corruption have all been addressed by judicial activism.

 

A balance must be struck between the judiciary’s function as a rights protector and the democratic norms of separation of powers, even when judicial activism has obvious advantages. The overuse of judicial activism may result in judicial overreach and intrusion into the purview of the elected officials. 

 

[1] Britannica, The Editors of Encyclopaedia. “Bonham’s Case”. Encyclopedia Britannica, 21 Nov. 2013, https://www.britannica.com/event/Bonhams-Case. Accessed 16 July 2023. 

 

[2] 5 U.S. 137 (1803)

 

 [3] Arthur. M. Schlesinger(1947), ‘The Supreme Court, 1947’, Fortune Magazine

 

[4] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970

 

[5] ADM Jabalpur v. Shivkant Shukla , AIR 1976 SC 1207

 

[6] Hussainara Khatoon (I) v. State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532 

 

[7] Sunil Batra v. Delhi Administration, (1978) 4 SCC 409

 

[8] Golaknath v. State of Punjab 1967 AIR 1643

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