Category Archives: Articles

• Introduction

Domestic Violence cases in India is no new story. It has been so long since we are experiencing Domestic Violence cases and its surge. Domestic violence in India represents an intriguing mystery: notwithstanding being the most omnipresent of fundamental basic freedoms infringement, it is likewise the most un-detailed and talked about issue. The firmly man centric standards and structure of conventional Indian culture, and the sharp differentiation among public and private life, have made the subject of domestic violence a complex and nuanced one, bringing about a long and enthusiastic battle for equity against the shocking practice. Theoretical reexamining and change encompassing the lawful arrangements against domestic violence has been the commitment of the continued campaign against the training by the Indian women development. The meaning of violence has advanced throughout the years to a degree it incorporates actual types of violence as well as passionate, mental, monetary, and different types of cold-bloodedness. Consequently, the term domestic violence incorporates acts which damage or imperils the wellbeing, security, life, appendage, or prosperity (mental or physical) of the person in question, or will in general do as such, and incorporates causing actual maltreatment, sexual maltreatment, boisterous attack, psychological mistreatment, and financial maltreatment, executed by any individual who is or was in a domestic relationship with the person in question.

• History of Domestic Violence

The women development in India is followed from the beginning of the 1970s, when the issue of sexual orientation started to pick up footing and perceivability as an issue separate from different concerns, deserving of being handled itself. In any case, the women’ development in India is really a far more established marvel, having its underlying foundations in the Indian patriot development, going back to the mid-1920s. The Indian women’s movement, from the 1920s until the 1970s, was intensely impacted and coordinated by the outer financial and political powers of the country, such that women’s issues were viably sidelined, failing to occupy focal worry in the psyches of individuals. The time frame from the 1920s until Independence saw the imbuement of the women’s development with patriot legislative issues, its forms molded by the on-going battle for independence from British government. This period, from the 1920s to the 1970s, was described by the commencement of different neighborhood women’s affiliations, for example, the Bharat Stree Mahamandal and the Arya Mahila Samaj. These affiliations were barely of political nature; rather than addressing sexual orientation jobs, they coached women in child-care, behavior, sewing, serving tea and so forth at the public level, women’s affiliations, for example, the National Council for Indian Women and the All-India Women’s Conference were more impending concerning policy driven issues, their exercises running across noble cause, requesting of fore casting a ballot rights and child marriage change. These were, in any case, basically city-based and tip top in piece, with scarcely any premise in mass enrollment.

• Legal Aspects

The push of the women’s development during the 1980s was on administrative change. Instances of assault, viciousness, and settlement related wrongdoings, notwithstanding debates over the Shah Bano case and the Uniform Civil Code, featured the requirement for laws that uniquely tended to women’s issues.1 Though the term ‘aggressive behavior at home’ did not exist in legitimate speech till 2005, a stage toward its was made in 1983 with the selection of sections “498A”[1] and “304B”[2] of the Indian Penal Code. The enactment of 498A made savagery towards spouses a non-bailable criminal offense culpable with as long as five years in jail. 304B made settlement passing an offense with at least seven years extendable to life detainment if the culprit was seen as liable. Indira Jaising depicts Section 498A as ‘strong’ (Jaising, 2014). For one, it presented criminal offenses in personal connections, which hitherto were considered past the span of the law, and two, since savagery was not restricted to the interest for settlement alone nor kept to actual mutilation or injury however stretched out additionally to mental brutality. (Jaising, 2014) Additionally, the offense was made cognizable, which implied that a capture could be made without a warrant from a justice. Four sorts of ‘pitilessness’ were perceived by the article: lead that is probably going to drive a lady to self-destruction; direct which is probably going to make grave injury the life, appendage or soundness of the lady; provocation to compel the lady or her family members to give some property; badgering in light of the fact that the lady or her family members can’t respect requests for more cash or doesn’t give some property. Section 498A, however a milestone in the women’s development, confronted analysis on various records concerning the degree it checked the issue of savagery against women. The term ‘savagery’ was felt to be prohibitive, avoiding with regard to its ambit monetary and sexual brutality. The law likewise left out instances of brutality happening inside the natal home of a lady. Also, the Family Courts Act of 1984 moved ‘savagery’ cases from the ward of officer courts to under that of family courts with the end goal that women could settle separation and upkeep continuing under one roof. The dominating idea overseeing family courts was the ‘insurance of the family structure’ and not discipline. Henceforth, a specific level of savagery was approved in such cases to shield the family from self-destructing. The significant deficiency of 498A was anyway the suitability of its execution. The designers limited the trouble women looked in moving toward the police for recording the principal data report (FIR), as the specialists were hesitant to do so given their own ethical biases and confidence in the regularity of abusive behavior at home. Despite the fact that the quantity of revealed cases under these punitive arrangements expanded with each progressive year, the equivalent didn’t have any significant bearing for the pace of feelings. An investigation led by the Center for Social Research, Delhi (CSR 2005), uncovered rather upsetting discoveries. Out of 100 cases which were requested for examination under Section 498A, just in two cases did the charged get indicted. The lone cases which finished in conviction were those where the lady had kicked the bucket and the case under Section 498A was enlisted alongside Section “304B”[3] (share passing) or “Section 302”[4] (murder). There were no feelings in any of the cases enlisted under Section 498A alone. Without substantial advantages following out of the enactment, it was difficult to have confidence in its viability.

• Domestic Violence Act of 2005

For the protection of women from Domestic Violence, the “Protection of Women from Domestic Violence Act of 2005”[5] was enacted. Prior to the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the casualty could move toward the court under Section 498-An of the Penal Code, 1860 which accommodates ‘spouse or relative of husband of a lady exposing her to cold-bloodedness’ wherein just a specific arrangement of offense managing remorselessness to wedded women was the lone plan of action. Any remaining cases of domestic violence inside the family unit must be managed under the offenses that the particular acts of violence established under the IPC with no respect to the sex of the person in question.

To limit the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to shield the women from acts of domestic violence. The legislative expectation was additionally stressed by the Supreme Court of India on account of “Indra Sarma v. V.K.V Sarma,”[6] wherein it was expressed that the DV Act is enacted to provide a cure in civil law for the protection of women, from being victims of such relationship, and to prevent the event of domestic violence in the general public. Different enactments like Cr.P.C, IPC, and so on, where reliefs have been provided to women who are put in vulnerable circumstances were additionally talked about. The objective of the Act sets out “An Act to provide for more effective protection of the privileges of women ensured under the Constitution who are victims of violence of any kind happening inside the family and for issues associated therewith or coincidental thereto.”[7] The Madras High Court in “Vandhana v. T. Srikanth,”[8] out of one of the early cases since the enactment of the DV Act, observed that the Act was detailed to execute Recommendation No. 12 of United Nations Committee on “CEDAW, 1989”[9] and which was endorsed by India in June, 1993. Understanding of the DV Act ought to adjust to global conventions and worldwide instruments and standards. The Bombay High Court on account of “Mr. X vs Mrs. Y (name removed as per the request of the party) 2011 SCC Online Bom 412[10]” repeated that the object of the DV Act is to concede legal protection to victims of violence in the domestic area who had no exclusive rights. The Act provides for security and protection of a spouse irrespective of her restrictive rights in her home. It targets ensuring the spouse against violence and at the protection of repeat of acts of violence. As indicated by the provisions of this Act, any aggrieved lady who is in a domestic relationship with the respondent and who claims to have been exposed to the act of domestic violence by the respondent can seek help. A lady can document a grumbling against any grown-up male culprit who submits an act of violence. She can likewise document a grumbling against any male or female relatives of the spouse/male accomplice (for instance in a live-in relationship) who has executed violence. The Supreme Court in “Hiral P. Harsora v. Kusum Narottamdas Harsora,”[11] struck down grown-up male from the meaning of “respondent” expressing that it did not depend on any understandable differentia having sound nexus with object tried to be achieved. The Supreme Court likewise clarified in the said case that the classifications of people against whom cures under the DV Act are available incorporate women and non-grown-ups. Articulation “respondent” in “Section 2(q)”[12] or people who can be treated as culprits of violence against women/against whom cures under the DV Act are actionable can’t be confined to articulation “grown-up male individual” in Section 2(q). Consequently, cures under the DV Act are available even against a female part and furthermore against non-grown-ups.

• Domestic Violence cases during lockdown

With a quick expansion in the quantity of COVID-19 cases across the world in the previous few months, several worldwide associations took cognizance of a worldwide ascent in Domestic Violence (DV) cases because of physical removing guidelines and its resulting lockdowns. Numerous nations revealed a 15-30% hike in the quantity of misery calls received from women who were limited in shut spaces with abusive accomplices. Studies, over the years, have demonstrated an immediate link between seasons of emergency like these and relational violence. Pandemics provide for an empowering environment of dread and vulnerability that may fuel diverse types of violence against women. Moreover, monetary uncertainty, monetary shakiness, and confinement are additionally a portion of the factors that add to making domestic violence even more prevalent. Sadly, domestic violence cases are underreported across the world, particularly in the midst of worldwide crises like COVID-19. Women overall think about casual channels as their first purpose of-revealing on account of domestic violence. Because of lockdown limitations, the pressure of being bound with one’s victimizer and monetary requirements, it has gotten progressively hard for women to get to help against domestic violence. Various social workers and legal counselors have featured the confined admittance to protection officers as a reason for concern, and have proposed that the work of protection officers, advising and emergency focuses should be proclaimed as basic services. “The principal respondent is often the family and the police the last. In India, the National Family Health Survey-4, directed in 2015-16, revealed that 33% of wedded women in the age gathering of 15-49 experienced physical, sexual, or passionate spousal violence. Of these women, just 14% looked for help and 77% never spoke about it. Among the individuals who looked for help, 65% answered to the natal family and simply 3% answered to the police.”[13] The arrangement of COVID-19 lockdowns in India decreased the chances of detailing of domestic violence cases. Here’s the reason:

1. Confined movement: The lockdown crippled women by preventing them from moving to more secure spots in instances of violence and misuse. With people living together for longer periods, the privacy of women plunged, and occurrences of violence rose.
2. Impaired vehicles of correspondence: The WhatsApp number dispatched by the NCW had a restricted reach as just 38% of women in India own telephones and less have a web association, making this stage unavailable to lion’s share of women in the nation.
3. Diminished contact with the natal family: Natal family is typically the principal purpose of contact for the victim. They are not just fundamental in supporting the victim in recording a protest yet additionally encourage documenting of grumblings to the police. The steady presence of the culprit made it hard for the victims to contact their first respondent which at last discouraged them from answering to organized channels.
4. Unavailability of the proper emotionally supportive network: The apparatus under the Protection of Women from Domestic Violence Act had not been distinguished as a fundamental service during the lockdown. Henceforth, the protection officers couldn’t visit family units of victims, NGOs couldn’t have actual interactions with them and the cops being at the cutting edge in our work to tackle COVID-19 were overstretched to help victims effectively.

While the cross-country limitations have been loose, various state and local level lockdowns are invoked every from time to time, permitting the pandemic of domestic violence to grow close by. We should not count violence as a detriment to women as an inevitable result of an emergency yet improve the generally postponed strategy suggestions to address the circumstance.

• Conclusion

In spite of the fact that the significant objective of this law, being to ensure the women against domestic violence has been made sure about, specific parts of the law actually stays to be developed. This law provides civil solutions for the victims of domestic violence. Under the steady gaze of enactment of this law, to seek any civil cures, for example, divorce, care of youngsters, orders in any structure or support, a lady just had the choice of taking response to the civil courts. Thus, the DV Act has surely achieved the required and fundamental change in the framework. In spite of the fact that the Act provides exhaustive solutions for counter the issue of domestic violence certain terms and its understanding requirements to develop. The Act misses the mark in providing any help to the male individuals in the network who are exposed to domestic violence, being one of the zones where the law misses the mark. However, it likewise should be viewed as that no wrongdoing can be canceled from the general public totally, it is just with rigid changes and system that it very well may be checked.

References

1. Indian Penal Code 1860, Section 498A.
2. Indian Penal Code 1860, Section 304B.
3. Ibid.
4. Indian Penal Code 1860, Section 302.
5. Protection of Women from Domestic Violence Act, 2005.
6. Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.
7. Supra Note 3.
8. Vandhana v. T. Srikanth, 2007 SCC Online Mad 553.
9. Convention on Elimination of All Forms of Discrimination Against Women, 1989.
10. 2011 SCC Online Bom 412.
11. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
12. Protection of Women from Domestic Violence Act 2005, Section 2(q).
13. National Family Health Survey (NFHS – 4), 2015-2016: India, INTERNATIONAL INSTITUTE OF POPULATION SCIENCES (IIPS) and ICF 2017.

ABSTRACT

The present article tries to draw a real picture of India’s dream of becoming a superpower, India’s emerging position as a world leader in the UN, and how this emerging superpower was affected by the Covid-19 pandemic. The author here wants to gain the attention of its readers on the recent happenings which worked in favor of India (especially in the Indo-Pacific region). These recent events include; defense agreements, treaties, diplomatic achievements, important international dialogues &, etc.

INTRODUCTION

India is an ancient land where endless human advancements flourished. It is a nation which, has withstood the assaults of time and maintained its way of life as a free, independent country. India is a place that is known for variety, monotony wears on the soul.

A nation that is the house of more than one-sixth of the worldwide populace, it is a country that is lively with the fantasy of its kin. India of the 21st century isn’t only a country, yet a fantasy a dream of incalculable spirits trying to have a place with a solid, confident, ground-breaking and self-reliant country.

In the start of 1990-91 the then Prime Minister P.V. Narasimha Rao was forced to proclaim that “our coffers are unfilled” and India had to vow its gold to get the scant forex. Yet, in 2004 Prime Minister Dr. Man Mohan Singh in his Independence Day discourse stated that, “From being a borrower, India today loans cash to the less fortunate and poorer countries”.

Prior to this pandemic India became the 5th largest economy in the word, and the GPD growth of India’s economy seemed to be rising at a very promising rate, but due to the pandemic this economic growth was hugely affected, making the GDP growth of India fall to its record low of negative 23.9%. It was a huge blow to India, which made us question our dreams of becoming the global superpower. [1] But fortunately in the 3rd economic quarter of this fiscal year, we are observing, the restoration of steadiness and hope in our economy, with rapid growth from a negative 23.9% to a positive 0.1%.[2]

This present paper tries to discuss in details about how the changes brought to the world along with the pandemic is working in favor of India and how India is using it for its advantage and emerging as a world superpower. This paper not only focuses on the economic aspect but also the military, political & diplomatic aspect, more of which is discussed in the later part of this article.

INDIA’S EVOLVING POSITION IN UN

United Nation should undoubtedly, the most significant position in establishing today’s world order, the foundation of which was laid in the year 1945. Presently there are 193 countries which are registered as “members State” in UN. The founding charter of UN forwarded the purpose for which this organization was established and it has further records many-a-few guiding principles which regulates all the current missions and works of UN. There are 6 main organs of UN that includes UNSC, UNGA and ICJ.

• India getting a non-permanent seat in UNSC

United Nations Security Council (UNSC) is unarguably one of the most important organs of the UN. The membership into this organ holds the most controversial and discriminatory aspect of UN. The membership into UNSC is regulated as per the UN Charter which states that, “The security council shall consist of 15 members of the United Nations”.[3] Of these 15 members, 5 will be the permanent members[4] and others non-permanent. Now the election for the non-permanent members happens every year, where 5 countries are elected for the term of 2 years. The election of the non-permanent members has to follow the rules of UN charter which also provides the fixed quotas for different regions; this ensures uniform representation of countries of different region to the UNSC. Currently 2/10 seats are fixed for the countries belonging to the Asia pacific. Indonesia and Vietnam were elected as non-permanent members from Asia-pacific region, of which Indonesia is to retire, giving its position to India in January of 2021.This is 8^th time that, India has won the non-permanent seat of UNSC.

India’s candidature to this year’s UNSC’s election was unanimously endorsed by 55 countries of Asia pacific region including China & Pakistan who presently are, having direct military and diplomatic confrontation with India. This unopposed endorsement of Indian candidature to UNSC’s membership shows the success of Indian diplomacy, in the indo-pacific region which was able to mold the decision of countries such as Pakistan, which is considered to be the sole nemesis of India along with china, who consider India as their biggest hurdle. The biggest highlight of this election is the voluntary suspension of Afghanistan’s candidature from UNSC election for India.[5]

• India’s approach to reform UNSC

What makes this position in UNSC so important to India? Post the covet-19 it’s being assumed by many diplomats and political-analysts that, the year 2021 & 2022 are going to be very crucial for India, who has always supported the idea of reformation in UNSC, along with its demand of a permanent seat in the Security Council. Moreover, it’s important to note the rapid increase in the number of countries, supporting and advocating India’s demand for reformation in current UNSC which doesn’t “represent the geo-political realities of the 21^st century”.[6]

According to “The Print” article, India’s External Affairs Minister, S. Jaishankar releases an statement stating that, “India’s win in the UNSC election will bring ‘Five S’ approach to the world.” The 5 ‘S’ approach here includes; Samman, Samvas, Sahayog, Shanty & Samriddhi of all. The External Affairs Minister further supplements that it’s through using this approach that India will move near the direction of a novel orientation for the “reformed multilateral systems also known as norms.”[7]

• India’s leadership role in WHO

The international courts may not be effective in delivering justice, by punishing those who are responsible for spread for this pandemic but the world can’t look the other way as China and its accomplice break the rules; the accomplices like the China and the World health Organization; an institution which has been parroting China’s statements since the very beginning.

The WHO is made up of the UN member states (194 members), the challenges that it faces are institutional. The WHO is as effective as the nations which make up its body, so cutting funds and issuing threats to WHO by some members like US, will not really work in the long term, there has to be a leader, someone will have to get their hands dirty and fix the flaws in the system, can that someone be India? There’s a probability for that to be a reality. Starting from the 22^nd May 2020, India was given the leadership role of WHO. India’s nominee is appointed as the WHO’S executive board chairperson. India’s nomination was unanimously upheld by the south-east Asia group last year. India thereby took-over this leadership role in WHO replacing Japan and is expected to hold this post for a minimum of 3 year.

The author here forwards some recommendations which the government of India can and must do to fix the broken system of this body, which are as read;

1. Push the WHO leadership for accountability -A good place to begin is by asking questions; questions like, why did it buy china’s word on human transmission? Did it downplay or bluntly lied about how lethal this virus was? Why did it declare a pandemic only after the virus has reached 85 odd countries? India must begin by asking these questions without hesitation.
2. Demand transparency from member countries – starting from the one who gave the world the virus; china.
3. India must insist on financial independence of WHO – by doing this India can limit the influence of other nation in the decision making process of WHO.

Changing nexus between Indo-ASEAN countries post covet

The new phase to Indo-ASEAN relationship began with the change in India’s views towards the south-east Asian countries, this view of India is reflected in its 1991 foreign policy of “Look East”, which in 2018 was renewed to “Act East Policy”.[8][9] Now the question was, Should India forgo its policy of “Act East” and concentrate more in other organization like the Quad-Groups, SAARC nations & etc, which satisfies more of India’s security interest?

Considering all the challenges before ASEAN that affected it’s relevancy to India (such as, its failure of ASEAN to gather uniform consensus, ASEAN’s bent towards China in major trade agreements like RCEP and OBOR, Reluctance of few ASEAN countries to go against China and etc[10]) author’s view to the above question would have been in positive, but after observing all the changes within this ongoing pandemic, the author believes that, India’s “Act East” policy which centrally focuses on the ASEAN countries is still very much significant to India, to ensure India’s strategy to counter china’s “String Of Pearls”.[11] Some of the major developments which change the author views on ASEAN’s relevancy to India are as discussed hereunder[12]:

• Changing views and interest of the ASEAN countries­

The increasing aggression of china, towards its neighbors’, be it India in the Himalayas or the ASEAN countries in the south china sea, is now forcing these countries to change it strategy towards china from passive resistance to now active aggression. For example, the repeated intrusion of the Chinese into the Vietnamese Exclusive Economic Zone, which lead to the death of few Vietnamese sailors in the past few months have aggravated the whole situation to a next level and the accusation on Chinese to have intentionally started this pandemic, doesn’t make things any better for the ASEAN-china relation but on contrary to this, it has brought India and ASEAN a lot closer, due to the mutual threat for both which is china. These recent incidents have created a drastic change in the views and interest of the ASEAN countries towards china. Earlier, where there we use to see the failure of ASEAN to gather uniform consensus on this matter, now we observe a sought off uniformity among them.

• Increasing Role of ASEAN in India’s “Necklace Of Diamond”[13] Strategy

We all know about the “String Of Pearls”, which is the Chinese strategy to encircle India in the Indian ocean by continually developing significant strategic bases around India. For years now, India remained unsuccessful to form a useful alternative to counter the string of pearls strategy of Chinese, the reason for it being is the lack of capitals to to afford creating such bases which is huge. But now India has come up with a much affordable and useful strategic plan, where we by signing security agreements with other foreign countries promise to share each other’s naval bases and ports for strategic and commercial use.

Further, Indian strategic experts with the same principle as above have formed a new strategy of “Necklace of Diamond”[14] as a counter to Chinese “String of Pearls”. The necklace of diamond or garland of diamond strategy mainly aims at encircling china in the South China Sea. This plan of India seemed nearly impossible few years back but with the transformation in the “geo-static relationship” things have changes for good. For making these diamond strategies successes the ASEAN countries are very significant for India, this is because India has already signed significant deals with ASEAN countries like Singapore & Indonesia, and the discussion for such other agreements with rest ASEAN countries are still in progress.

The authors suggestion for India, if it wants to use ASEAN’s support and their ports as a way to counter china, is to 1^st ensure the stability of the union and then create medium to attain uniform consensus or understanding among them by letting them know of the benefits they will achieve form this which might be ranging from soft loans to security, from free trade deal to tourist promotions and etc.”

CONCLUSION:-

The author of this present article aims at drawing a clearer picture of India’s dream of becoming global superpower. The present paper mainly focuses on 2 major aspects, relating to India’s emergence as the world leader; first being the India’s evolving position in UN and the second being the Changing nexus between Indo-ASEAN countries post covet and why ASEAN’s relevance to India changed post the pandemic, which also includes the Indian strategy of “necklace of diamond” as a way to counter the Chinese strategy of “string of pearls”. And the very end of this paper the author has forwarded her suggestions and opinions of the concerned issue.

REFERENCE:-

[1] Which top economies have suffered worst GDP fall due to COVID-19?, (BusinessToday), (Cited on 18^th December 2020), published on:https://www.businesstoday.in/current/economy-politics/which-top-economies-have-suffered-worst-gdp-fall-due-to-covid-19/story/414683.html

[2] Swarajya Staff, India’s quarterly GDP growth to return to positive territory in Q3 after 2 quarters of contradiction, (Online), (Cited on 22^ndDecember 2020), available at: https://swarajyamag.com/insta/indias-quarterly-gdp-growth-to-return-to-positive-territory-in-q3-after-two-quarters-of-contraction-says-ncaer.

[3]UN charter, Art. 23

[4]The permanent members of the UNSC are namely; China, France, Russia, UK and US

[5] Yashwant Raj, India elected unopposed to UNSC’s non-permanent member seat, (HINDUSTAN TIMES), (Cited on 22nd Dec 2020), available at: https://www.hindustantimes.com/india-news/india-wins-unopposed-unsc-s-non-permanent-member-seat/story-heCU25mJRYCVC9OYDvBCJP.html.

[6] ibid

[7] Nayanima Basu, India set to be UNSC non-permanent member, says will bring ‘Five S’ approach to world, (THE PRINT), (Cited on 22^nd December 2020), available at: https://theprint.in/diplomacy/india-set-to-be-unsc-non-permanent-member-says-will-bring-five-s-approach-to-world/436171/

[8] Mohit Anand, India-ASEAN Relations: Analysing Regional Implications, INSTITUTE OF PEACE AND CONFLICT STUDIES, Pp. 1-12 (2009). http://www.jstor.com/stable/resrep09296

[9]Dedeoğlu, Beril, &TolgaBilener. Neo-Functionalist Regional Integration Theory Put To Test In Asia: New Regionalism Around India And ASEAN.  19 INSIGHT TURKEY, Pp. 155–174, 2017,. Jstor, Www.Jstor.Org/Stable/26300563.

[10] Ryosuke Hanada, Asean’s Role In The Indo-Pacific: Rules-Based Order And Regional Integrity, GERMAN MARSHALL FUND OF THE UNITED STATES pp. 7-12 (2019).

[11]NilanjanBanik, Why ASEAN matters to India, (FORTUNE India), (Cited on 16^TH December 2020), available at https://www.fortuneindia.com/macro/why-ASEAN-matters-to-india/101500

[12]Tridivesh Singh Maini, “ASEAN Summit: Takeaways For New Delhi”, (THE GEOPOLITICS), (Cited on 16^TH December 2020), available at https://thegeopolitics.com/asean-summit-takeaways-for-new-delhi/

[13]India’s Necklace of Diamonds – Garlanding China, (THE TRUE PICTURE), (2018), (Cited on 16^th December 2020), available at https://www.thetruepicture.org/india-china-relations-india-china-military-india-attack-china/

[14]ibid

• Introduction

Insider Trading is one of India’s most prominent financial crime, which was prevalent since the early 1920’s. The term ‘Insider Trading’ can be defined as the illegal use of non-public information derived from a person associated with the company to profit /gain by purchasing/selling listed securities on the share market. The seriousness of the crimes relating to Insider Trading cannot be overlooked. Such crimes create a huge problem for the regulating authorities in tracing those involved in sharing and benefitting the information. All those benefitted are very well-connected thereby giving them the leverage to escape the liability and make enormous profit at the cost of other traders. In year 1986, the definition of Insider Trading was laid down by the Patel Committee, as “Trading in the shares of a company by the person who are in the management of the company or are close to them on the basis of undisclosed price sensitive information regarding the working of the company, which they possess but which is not available to others.”[1]

In the year 1940, the very first recommendation of implementing Insider Trading Regulation was received in India. Thereafter in the year 1948, a report was submitted by the Thomas Committee stating that all the directors, agents, officers, auditors should make proper disclosures. In 1956, with the enactment of the Companies Act, provisions to prevent Insider trading was introduced. According to Section 307 and 308 of the said Act, the directors and all the major key managerial persons were required to maintain a record of their shareholdings in the register and to make the complete disclosures of their shareholdings. However, these provisions were not stringent enough to prevent the crimes of Insider Trading.

By this time, the effects of insider trading were already been seen in the market. Not only the shareholders were losing confidence in the functioning of the markets, but were also refraining themselves from investing. And not to much surprise, even the foreign investments were adversely affected. As a result of all these the Indian Economy started suffering losses, leading the government to introduce various Committees in order to have a check on and curb such practices.

In the year 1979, the Sachar Committee submitted a Report stating that, “Insider Trading practices are being carried out in the markets and there is a need to have specific provision to restrict and prohibit such practices”. Subsequently, in the year 1986, the Patel Commission put forth the need to make several changes to the Securities Contract Regulation. Further in the year 1989 the report by Abdul Hussain Committee suggested that the offence of Insider Trading should be made liable under Civil and Criminal laws. It also suggested for the formation of a body known as SEBI to regulate and keep a check on the working of the markets.

On the basis of the reports submitted by the aforementioned committees, Securities and Exchange Board of India (SEBI) was established with the aim to regulate the market transactions and dealings. The provisions of the SEBI Act further empower it to carry out investigations, trials and impose a penalty upon those who breach the laws and carry out unlawful activities.[2]

• Regulations in India Regarding Insider Trading

The regulatory body that ensures proper corporate governance in India is the Securities and Exchange Board of India. This body keeps a watch for any unusual transaction related to purchase or sale of listed securities. The TISCO Case of 1992, paved the way for formation of the Securities and Exchange Board of India in the year 1992. In the Tisco, case the profits of the company sharply fell and there was a sale of shares in small quantities before the announcement of the half yearly results. The Court held that there was no insider trading as there is no evidence for the same. As there was a lack of regulations and procedures the culprits could not be made liable. This finally led to the forming of Securities Exchange Board of India (Insider trading) Regulations, 1992.[3] After the Regulation of 1992, a significant change was made to Insider Trading laws in India in the year 2015. Hence the “SEBI (Prohibition of Insider Trading) regulation, 2015”, was enacted to resolve the flaws in the earlier regulation as the unlawful transaction were not covered with thin ambit of the regulation. Another, significant amendment has been carried out in the year 2019 where efforts have been made to cover direct and indirect transactions.[4]

The Companies Act of 2013 also had a provision to restrict Insider Trading. Section 195 of the Act prohibited any communication of sensitive information by the key managerial persons. Later, this section was omitted as section 458 of the Companies Act delegates the power to SEBI to conduct trials against the accused persons and therefore there was a confusion that the accused should be held under the Companies Act or the SEBI regulations and therefore in 2017 the section 195 was omitted by a notification. Hence, the current regulations regarding Insider Trading in India are the SEBI (Prohibition of Insider Trading) Regulations, 2015 and Section 12A (Prohibition of Insider trading) and 15G (Penalty for Insider Trading) of the SEBI Act.

• Judgments on Insider Trading

The case of Hindustan Lever limited (HIL) Vs SEBI [5], was one of the earliest cases where SEBI acted against Insider trading, in this particular case around 8 lakhs shares were bought by HIL from the Unit Trust of India, and after some weeks a merger was announced between HIL and the other subsidiary. SEBI carried out an investigation and it was held that it was a case of Insider Information, an appeal was made to the Appellate authority and they confirmed the order of the SEBI rejecting the arguments given by HIL denying having the information or knowledge for the same. After this case SEBI made an amendment to the regulations and added and defined the word ‘unpublished’. This was the origin for the definition of the term ‘Unpublished Price Sensitive Information in India’.[6]

In another case of Reliance Industries limited (RIL) Vs SEBI [7], RIL had a stake of around 5 % in the L&T company and further there were two nominees for the company Mr. Mukesh and Anil Ambani. Further, RIL went on purchasing stake in L&T and almost got around 10 %. RIL further made a sale of these shares above the market price to Grasim Industries as a result of which the two nominees were removed and RIL was prohibited from further trading in shares of L&T. SEBI carried out an investigation and a case was filed against RIL in which they were held to be guilty of Insider trading. In an appeal the Appellate Tribunal reversed the order of SEBI stating that the information was not passed by the nominees of L&T and the same had no relation in communicating or passing of the information. L&T was not even aware of the deal and there was no evidence to prove the same. Therefore, RIL was not made liable for Insider trading.

As we can observe from these cases the conviction by SEBI for Insider trading is very less and the penalty imposed upon the convict for the commission of such illegal activities is way to less. Hence, in the next part of this Article we will discuss the problems with SEBI and the regulations in dealing with Insider Trading.

• Problems Regarding Insider Trading in India

There have been many arguments about the legality and the illegality of Insider Trading. But most of the scholars and investors state that Insider Trading is against the integrity of the market. This is because the it gives an unfair advantage to the people having access to such information as there is no risk or losses that such people suffer. Also, it causes the investors to lose their money as the people having such sensitive information carry out certain malpractices of manipulating and spreading rumours which leads to change the mind of many investors while trading in the stock markets. This further leads to loss of confidence of investors to invest in markets which is a very big concern for the economy and it also affects foreign investments. Therefore, the practice of Insider Trading is very harmful for the markets and there needs to be a regulating authority to keep a check and prevent such malpractices.

Also, another problem that is faced by SEBI is proving the cases of Insider trading as there is not always sufficient evidence to prove that a particular trade was a result of Insider Trading. As the people having access to such UPSI use third parties or make some other transactions through which they escape the liability and are held not guilty. Also in many cases the court has not been able to give proper judgment as the regulating authority has failed to prove any direct relations between the Information and the trade. As a result of this the investors lose their money, and the markets suffer the loss.

Another difficulty is that although there are provisions for Criminal Liability in the SEBI regulations but implementing them is difficult. As there is a need for Mens Rea to hold a person liable under Criminal law. It becomes very difficult for SEBI to prove the case of Mens Rea and so the accused often escape criminal liability and are held liable under civil law. Therefore, there is no fear in the markets and so this sensitive information is freely circulated.[8] For instance there have been cases that such information is being passed through WhatsApp messages on various groups. The SEBI has been trying to investigate these matters but have found no solid proof to make a case against the persons passing such sensitive information.[9]

Lastly, the Indian judiciary system takes many years to pass a judgment and the option of appeals gives the offenders enough time to manipulate the evidence and escape such liability under the SEBI regulations.

• Conclusion and Suggestion

It  would be safe to conclude that, Insider Trading is no more a White-collared Crime. Countries across the globe have taken stringent measure to check and prevent on practices such as Insider Trading. In the United States of America, the Federal Court convicted Rajat Gupta the director of Goldman Sachs for Insider trading. The facts of the case stated that, Rajat Gupta was found guilty of passing sensitive information about the market to Raj Rajaratnam, a co-founder of the Galleon Group LLC hedge fund.[10] The ruling by the Court sentenced him to two years of imprisonment and a fine.

It is a high time for India to implement such measures for the persons who have been found guilty and not treat Insider Trading just as a white-collar crime. As there is only a less than three percent conviction rate in such crimes in India there is a need to amend the regulations and to add strict criminal proceedings and awards against such offences. There also needs to be another regulatory body along with SEBI to track down high profile cases and prevent such sensitive information flowing in the market.[11]

Also, the SEBI as a regulatory body needs to increase their staff as there is only one official having a look over six companies and so it is not possible for SEBI to track and regulate every such function of the companies.[12]

Further, as the number of cases are increasing every year, the Indian Judiciary needs to set up fast track courts for certain high-profile cases that involve a huge stake of the market as it would not only save the investor’s and the markets money but would also curb the illegal practice of Insider Trading. 

References

[1] Das, Sonakshi. “The Know-All of Insider Trading – Decades of Corruptive Prevention.” Academike, 15 Jan. 2015, www.lawctopus.com/academike/know-insider-trading-decades-corruptive-prevention/#_edn8.

[2] Das, Sonakshi. “The Know-All of Insider Trading – Decades of Corruptive Prevention.” Academike, 15 Jan. 2015, www.lawctopus.com/academike/know-insider-trading-decades-corruptive-prevention/#_edn8.

[3] Kumar Gaurav. “Role of SEBI in Curbing Insider Trading in India – An Analysis.” I Pleaders, 4 June 2018, blog.ipleaders.in/sebi-insider-trading-offences/.

[4] Srivastava Anushweta & Shah Maharashi. “Latest Insider Trading Regulations: Prohibitions & Exceptions” TaxGuru, 30 Sept. 2020, https://taxguru.in/sebi/latest-insider-trading-regulations-prohibitions-exceptions.html.

[5] Hindustan Lever limited (HIL) Vs SEBI, (1998) 18 SCL 311 MOF

[6] Machiraju, H.R., (2009) “The Working of Stock Exchanges in India”, New Age International (P) Ltd., pp-164-165

[7] Reliance Industries limited (RIL) Vs SEBI, 2004 55 SCL 81 SAT

[8] Katarki, Suneeth. “India: ‘Mens Rea’ In Insider Trading – A ‘Sine Qua Non’?” Mondaq, 3 June 2015, www.mondaq.com/india/x/401724/Securities/Requirement Of Mens Rea As A Criterion for Penalising Insider Trading In India.

[9] Jayachandran. “Eliminating the Menace of Insider Trading.” Live Mint, 27 Nov. 2017, www.livemint.com/Opinion/qUBUyk9cbxSfItLarLAuvK/Eliminating-the-menace-of-insider-trading.html.

[10] Sharma, Betwa. “Rajat Gupta Found Guilty of Insider Trading.” Business Today, 16 June 2012, www.businesstoday.in/current/world/rajat-gupta-insider-trading-sentence/story/185519.html.

[11] Ibid.

[12] Ibid.

INTRODUCTION

With the world-changing and the technology developing at a faster pace, the world is moving towards transformation. The evolving technologies, especially the Artificial Intelligence (AI) and Machine Learning (MI) have travelled a way ahead in their course of transformation. AI and MI, along with other evolving technologies such as speed recognition and natural language, have reached a nexus of capability. However, along with such developments various issues such as ownership, accountability, representation and management with regard to AI have emerged. And such issues have brought us to a point where the major question arises “Whether AI systems be given a legal status or not?”. For obvious reason the debate on this topic is never-ending. But the growing development hints towards incoming legal effects when it comes to AI and in such a case proper adaptation of laws is very important. Giving a legal status to AI also emphasizes on providing Robotics with a legal personality.

The present article deals with the subject of Legal Personhood of AI systems and the arguments for and against the same. The need for introduction of a framework to deal with the AI and MI is of major concern. Following this another concern that arises is about the preconditions that should be established in order to introduce the framework. The author in the present article has made an attempt to provide an insight to these topics.

THE CONCEPT OF LEGAL PERSONHOOD

An entity is said to have a legal personhood when it is a subject of legal rights and duties.[1] Two types of legal personhood are recognised in law, namely, Natural and Judicial.

• Natural – Those which are recognised because of the simple fact of them being humans.[2]
• Judicial – Those which are non-human in nature and have been granted certain rights and duties by law.[3]

Under the legal system, Judicial legal status has been provided to corporations, religious entities, governmental and intergovernmental entities, etc. As per some Scholars such status can also be provided to the robotics and to emerging AI system.

The judicial personality is based on three theories, namely,

• Aggregate theory: Individual members work in a group as a single entity, while establishing individual contractual relations, for cost cutting.
• Fiction and concession theory: Non-human entities have a personality because the legal system choses to give it to them.
• Realist theory: Suggests conferment personality to non-human entities as a matter of right.

A closer look at above the three theories makes it very clear that the ‘Aggregate Theory’ is least applicable to AI systems, whereas, ‘Fiction and Concession theory’ can be extended to AI systems.

When it comes to the natural legal personhood, there have been no particular theories. The fact is that the concept of natural legal personality is completely rooted to the legal system, and in such a scenario it is almost impossible to articulate it.

 

GRANTING OF LEGAL PERSONHOOD TO AI SYSTEMS

The question whether AI systems should be given a legal personhood or not, has led to a number of questions. Firstly, they should be subjected to complete legal rights and duties or to a specific set of legal rights and duties. Secondly whether they should be provided with only rights or only duties. 

In the case where specific set of legal rights and duties have been provided, there are chances that they may not be the same for every entity. If only rights are conferred upon the AI systems, it would create problems of standing, as it would enable human individuals to act on behalf of a non-human rights holder, rather than requiring them to establish standing in their own capacity.[4] If only duties are conferred upon them, it would lead to accountability issues, problems of imposition of civil liabilities such as damages, etc.

ARGUMENTS IN FAVOUR OF GRANTING LEGAL PERSONHOOD TO AI SYSTEMS

The arguments in favour of granting legal personhood to AI systems are under the vision wherein they keep the ‘Robotics Rights’ in parallel with the ‘human rights. The individuals in favour of this argue that the rights of robots should also be recognised. The arguments in favour have also listed out various points which will be advantageous to human beings too in the long run.

According to Jurist, if a legal personality is conferred to AI systems, it would ensure that there is someone who could be blamed upon when things go wrong. This is presented as an answer to potential accountability gaps created by their speed, autonomy and opacity.[5] Not only the AI systems can be punished through the ways of retribution, incapacitation, deterrence, and rehabilitation but can also be then compared to corporations. This will further help to bring the AI system under the Jurisdiction of both Civil and Criminal Courts. In cases of extreme default, there would be rights to even destroy the robot completely. If the situation requires, the robots could also be fined or have its property seized, or a license to operate could be suspended or revoked.

Conferring a legal personality which also ensure accountability on the part of the works and actions of the AI system. This will further help in ensuring the ethical principles of AI – Accountability, Responsibility and Transparency, are some ethical principles of AI.[6]

• Accountability in the AI system requires both the function of guiding action and the function of explanation
• Responsibility refers not only to the role of people but also the capability of AI systems which not only answers one’s decision but also identifies errors or unexpected results.
• Transparency further refers to the need to not only describe, inspect and reproduce the mechanisms through which AI systems but also make decisions and learns to adapt to its environment, and to the governance of the data used created.

Gabriel Hallevy, the best-known defender of AI punishment, contends that ‘when an AI entity established all elements of a specific offence, both external and internal, there is no reason to prevent imposition of criminal liability upon that offence.[7] He concludes that ‘there is no substantive legal difference between the idea of criminal liability imposed on corporations and on AI entities.[8]

Conferring legal personality to AI systems would help in ensuring the ownership of work done by the AI system to be with the AI system, as opposed to it being with the parent owner of AI system. In those cases where something has been created by the AI the ownership rights, i.e. the IPR rights will lie with them and the human wouldn’t be able to take the credit. But not to much surprise, in most of the legal systems around the world, the person claiming IP has to be a legal person, and not a judicial person.[9] Due to this, legal personalities other than humans are denied ownership of the IP created by it. As per WHO such a system favours ‘the dignity of human creativity over machine creativity’.

The conferment of legal personality to AI systems would ensure their protection from human manipulation. Since legal personhood would ensure the AI system the ability to sue and to be sued, it would have its own recognition and independent identity. This would ensure lesser chances of it being manipulated for the interests of humans. Additionally, a system of lifting the veil, as it exists for corporations, can also be created for AI systems. This would add to the protection of AI systems from human manipulation.[10] This is in the interests of the AI systems, and is practically possible only if legal personality is conferred upon it.

The conferment of legal personality to AI systems would ensure their entry into contracts.[11] The use of electronic agents in order to conclude binding agreements is hardly new. High-frequency trading, for example, relies on algorithms concluding agreements with other algorithms on behalf of traditional persons.[12] Therefore, granting personhood to such AI systems would ensure better smoothness of work and would improve the potential accountability gaps raised by AI in relation to entry into contracts.

Not only this, if legal personality is conferred upon the system, their legal rights would be recognised. Instead of being treated as slaves, they would be treated as employees.

ARGUMENTS AGAINST GRANTING LEGAL PERSONHOOD TO AI SYSTEMS

The way a coin is two sided similarly, every argument has two approaches. Undoubtedly if many scholars are in the view of providing legal status to AI, many are against the same. According to many, if legal personality is conferred on Robots, it will lead to various problems. If robots are granted legal status, there may come a time when the question of granting the same to every other AI and MI may arise. And this will obviously create unnecessary problems.

It would further pose a huge threat to human owner of the system. Conferring a legal personality to the robots will led to the creation of principle-agent/ Master-servant relationship between the owner and the robot, which will make the owner being charged for the acts of the machine by strict liability.[13]

It is further speculated by various AI experts that if AI systems do eventually match human intelligence, they wouldn’t stop there. They can also go further in doing extra-normal activities, which may be negative. In many cases, there won’t be any way to find out whether AI acted according to the instructions given by the owner, or according to its own recoding of instructions. And this would be decremental to the interests of the owner, thereby asking him liable.

If legal rights are conferred upon them, the option of destroying such AI system would be eliminated, which could be very dangerous for the existence of humanity.[14]

Providing legal rights will further confer IP rights to the Robots. This would not only result in disregarding the owner’s effort in making the AI system but also the credit of all the work done by the AI system will remain with it, and the owner would not even have the moral rights of that work.[15]This would eventually result in lack of motivation, and would not be in the best interests.

Also, there can be instances wherein the owners can misuse the ‘Separate legal entity’ status provided to the Robots, by conferring all responsibility and liability on them and evade their own liability similar to the way the concept of ‘separate legal entity’ lifting provides an advantage to the shareholders of the company, there are chances that the owners may take undue advantage of the same.

Conferring legal personhood to the AI system would also not be in the interest of society. The arguments for granting such a personhood are not sufficient to showcase that such a personhood should be granted in the first place. Hence, conferring legal personality to the AI system is not suggested.

CONCLUSION

The forgoing discussion deals with the fact whether the AI system should be provided a legal status or not. On one hand various individuals suggest conferring the legal status, on the other hand many are against it. Whether conferring legal personality on AI system is desirable or not is a matter of concern. The decision on such a matter is dependent on the on the actual social necessity. Most importantly, it needs to be figured out whether the future society can function without conferring such a status or not. In case they can’t the need is to first set the preconditions and then to provide framework and check if the AI system could fit within such a framework.

The most important parameter in deciding whether the AI system should be granted legal status or not depends on the fact whether it is in the interest of the society. Only if it is the best interest for the society, the question on providing legal status should be considered. That being said, it would be safe to conclude by stating that, “The consideration that an autonomously functioning artificially intelligent robot should have a secure legal subjectivity is dependent on the actual social necessity in a certain legal and social order”.

REFERENCES

[1] Solum, L. B. (1992). ‘Legal personhood for artificial intelligences. North Carolina Law Review, 70(4), 1238–1239.

[2] N Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66 MLR 346.

[3] Ibid.

[4]C Rodgers, ‘A New Approach to Protecting Ecosystems’ (2017) 19 EnvLReev 266.

[5]S Chesterman, ‘Artificial Intelligence and the Problem of Autonomy’ (2020) 1 NotreDame Journal of EmergingTechnologies 210; S Chesterman, ‘Through a Glass, Darkly:Artificial Intelligence and the Problem of Opacity’ (2021) AJCL (forthcoming).

[6]Virginia Dignum, ‘The ART of AI – Accountability, Responsibility, Transparency’– Mar 4, 2018. https://medium.com/@virginiadignum/the-art-of-ai-accountability-responsibility-transparency-48666ec92ea5

[7]Gabriel Hallevy, ‘The Criminal Liability of Artificial Intelligence Entities’ — From Science Fiction to Legal Social Control, 4 AKRON INTELL. PROP. J. 171, 191 (2010).

[8]Ibid.

[9]Copyright, Designs and Patents Act 1988 (UK), section 9(3), Copyright Act 1994 (NZ), section 5(2)(a), Copyright Amendment Act 1994 (India), section 2, Copyright Ordinance 1997 (HK), section 11(3), Copyright and Related Rights Act 2000 (Ireland), section 21(f).

[10]J Turner, ‘Robot Rules: Regulating Artificial Intelligence’ (Palgrave Macmillan 2019) 193.

[11]S Chopra and LF White, A Legal Theory for Autonomous Artificial Agents (Universityof Michigan Press 2011) 160.

[12]T Cuk and A van Waeyenberge, ‘European Legal Framework for Algorithmic and HighFrequency Trading (Mifid 2 and MAR) A Global Approach to Managing the Risks of the ModernTrading Paradigm’ (2018) 9 EJRR 146

[13]Ryan Abbott & Alex Sarch, ‘Punishing Artificial Intelligence: Legal Fiction or Science Fiction’,53 UC Davis Law Review 1, 323 (2019).

[14]N Bostrom, ‘Superintelligence: Paths, Dangers, Strategies’ (Oxford University Press 2014).

[15]Marcelo Corrales& Mark Fenwick, Robotics, AI and the Future of Law -‘Do We Need New Legal Personhood in the Age of Robots and AI’, Perspectives in Law, Business and Innovation.

INTRODUCTION

India has seen significant improvement in the quality of air due to the nationwide lockdown. According to reports, there has been a 15 percent reduction in nitrogen-dioxide (NO2) concentration levels around March and April, the major reason being drastic fall in the vehicular traffic in the country[1]. A similar trend was observed in the fall of levels of SO2. Both NO2 and SO2 are precursor pollutants that lead to the generation of secondary PM2.5[2], and so reductions in concentrations of these pollutants is a welcome trend.  But because PM2.5 is also emitted directly from combustion of fossil fuels and biomass, and natural dust contributes to its levels, it is important to also consider impact on PM2.5 concentrations in addition.  Thus, it can be safely said that the lock down has also reduced PM2.5 levels in most cities.

Although the lockdown due to COVID-19 has brought us relief in form of reduced pollution, the surgical masks being used and their disposition have turned out to be a major issue. The surgical masks are essentially plastic and take years to decompose and at the same time choke rivers and other water bodies they are thrown into.

LEGISLATIONS REGULATING AIR POLLUTION

It is important to know how the Ministry of Environment and Forests (MoEF) came into being. India realized the need for ministry dedicated for the environment after the UN Conference on the Human Environment (Stockholm, 1972). The National Council for Environmental Policy and Planning was set up after the Stockholm Conference, within the Department of Science and Technology. This Council later evolved into a full-fledged Ministry of Environment and Forests[3].

In 1981, the Air (Prevention and Control of Pollution) Act was introduced with the following aims-

1. Setting up of central and state boards.
2. power to declare pollution control areas,
3. restrictions on certain industrial units,
4. authority of the boards to limit emission of air pollutants,
5. power of entry, inspection, taking samples and analysis, penalties, etc[4].

Further, in December 1984, the Bhopal Gas Tragedy took place which killed several people instantly and left several of them with permanent injuries that have passed down the generations, due to the leaking of Methyl Isocyanate and Alpha Naphthol[5] gases. In India, environmental law gained importance after a PIL was filed which later famously came to be known as the case of MC Mehta v Union of India[6]. As a country we realized the need for more stringent rules in terms of preservation and regulation of the environment.

Despite several environmental legislations being in place, we still continue to face severe air pollutions in various parts of the country. The next part will discuss a new committee set up specifically for curbing air pollution in the capital.

COMMISSION FOR AIR QUALITY MANAGEMENT

In light of the decreasing air quality in the NCT of Delhi, the Ministry of Environment, headed by Mr. Prakash Javadekar has announced “The Commission for Air Quality Management in National Capital Region and Adjoining Area Ordinance, 2020” for better co-ordination, research, identification and resolution of problems surrounding the air quality index and matter connected.

The Ordinance to constitute this Commission has been passed in furtherance of the assurance provided by the Central Government to the Supreme Court, wherein the Central Government had submitted that it was under the process of proposing a legislation to tackle the problem of air pollution that had been highlighted repeatedly before the Supreme Court of India. The order of the Supreme Court dated 16 October 2020 to constitute a one-man Monitoring Committee headed by Justice Madan B Lokur, a retired judge of the Supreme Court, for monitoring the measures taken by the states to prevent stubble burning was therefore kept in abeyance after the aforesaid reassurance by the Central Government to constitute this Commission.[7]

The commission replaces the Environment Pollution Control Authority (hereinafter, EPCA) which was formed 22 years ago under the Environment (Protection) Act, 1986 in order to work towards the Graded Response Action Plan (GRAP) in the National capital of Delhi. The EPCA was empowered with rights to issue directions in writing to any person, officer or authority as well as the right to take action against accused by way of a criminal trial under section of the Act[8]. The last committee of the EPCA reconstituted in 2018 consisted of 20 members, headed by Mr. Bhure Lal. The EPCA while in force, took several remarkable decisions for instance, conversion of public transport to CNG in 1998, regulation of old vehicles and trucks to curb emission, drastic reduction in the use of polluting fuels like pet coke and furnace oil from industries. The newly formed commission will constitute a variety of members for instance, members of the Central Pollution Board, ministry of petroleum, agriculture and other associated ministries etc.

Under section 12 of the Act[9], the committee will take appropriate steps to curb the menace of air pollution with the following aims-

(i) restricting activities that are likely to reduce the quality of air in NCR and even adjoining areas.

(ii) investigating and conducting research by taking air samples from factories or other premises to ensure that their emissions do not further degrade the air quality.

(iii) preparing codes and issuing directions that will be binding on the concerned person or authority flouting the environmental norms.

(iv) in case any individual/ organisation has been caught flouting norms, the commission also has the power to take Suo moto cognizance of such cases.

(v) the commission will not only be set up to levy penalties on defaulters but also, be instrumental in providing for alternatives of usual practices to maintain air quality and means to implement the same.[10]

The commission will be comprising of members and ex officio members. The members will as follow-

(i) a Chairperson,

(ii) two Joint Secretaries belonging from the central government,

(iii) three persons affiliated with knowledge and expertise related to  air pollution who will act as independent technical members,

(iv) three members from non-government organizations (NGOs). 

The ex-officio members shall include-

(i) representatives from the central government and concerned state governments and

ii) members from CPCB, Indian Space Research Organization (ISRO), and NITI Aayog to impart their knowledge and experience, relating to the environment. Furthermore, the Commission has also been empowered to appoint representatives of certain other ministries whose opinions might be valuable while making decisions relating to the environment, as associate members[11].

The members and chairperson of the commission will be appointed by the central government on the recommendations of a Selection Committee.  The Committee will be chaired by the Minister in-charge of the Ministry of Environment, Forest and Climate Change.The Committee will also include members like the Cabinet Secretary and the Minister who are in-charge of the following ministries-

 (i) Ministry of Commerce and Industry,

(ii) Ministry of Road Transport and Highways, and

(iii) Ministry of Science and Technology.

In order for the commission to carry put its objectives in a systematic manner, it is mandated under section 11 of the Act[12] to form the following three sub-committees, at the least-

(i) sub-committee on monitoring and identification, headed by a member of the commission.

(ii) sub-committee on safeguarding and enforcement, headed by a chairperson of the commission.

(iii) sub-committee on research and development, headed by a technical member of the commission.

It may form additional committees to as and when required, the above mentioned three are essential for the working of the committee.[13]

The Commission will be the sole authority with jurisdiction over matters defined in the Ordinance (such as air quality management).  In case of any conflict, the orders or directions of the Commission will prevail over the orders of the state governments (of Delhi, Haryana, Punjab, Rajasthan, and Uttar Pradesh), the Central Pollution Control Board (CPCB), state PCBs, and state-level statutory bodies.

CONCLUSION

The steps taken in the formation of the commission, the roles assigned to it and powers given to it are commendable and also the need of the hour. As things go back to normal with the lockdown being lifted, it is only going to decrease air quality due to vehicular movement, emissions from factories and not to forget the festival of Diwali. Thus, we can be hopeful that this commission will be successful in curbing the menace of poor air quality.The government might have done a good job at brining the environmental legislations in place and guaranteeing the right to a healthy and safe environment under the Constitution of India, but their implementation still remains a severe issue. A Report of the UN Environment found that, “Despite a 38-fold increase in environmental laws put in place since 1972, failure to fully implement and enforce these laws is one of the greatest challenges to mitigating climate change, reducing pollution and preventing widespread species and habitat loss”[14]

REFERENCES–

[1] Urvashi Narain, Rochelle Glenene O’hagan, Varun Kshirsagar, Emmanuel Skoufias, In India, air quality has been improving despite the COVID-19 lockdown, https://blogs.worldbank.org/endpovertyinsouthasia/india-air-quality-has-been-improving-despite-covid-19-lockdown.

[2] Particulate Matter (PM) Pollution, EPA, https://www.epa.gov/pm-pollution/particulate-matter-pm-basics.

[3] Vinay Vaish, Hitender Mehta, India: Environment Laws In India, MONDAQ, https://www.mondaq.com/india/waste-management/624836/environment-laws-in-india.

[4] Nidhi Garg, All about Air (Prevention And Control Of Pollution) Act, 1981, LATESTLAWS, https://www.latestlaws.com/articles/all-about-air-prevention-and-control-of-pollution-act-1981-by-nidhi-garg/.

[5] Bhopal to Vizag – A jurisprudential analysis of the tortious liability for companies, SCC ONLINE, https://www.scconline.com/blog/post/tag/bhopal-gas-tragedy/.

[6] 1987 SCR (1) 819.

[7] Ordinance Passed To Constitute A Commission To Control Air Pollution In The National Capital Region (NCR) And Adjoining States, https://www.mondaq.com/india/clean-air-pollution/1003864/ordinance-passed-to-constitute-a-commission-to-control-air-pollution-in-the-national-capital-region-ncr-and-adjoining-states

[8] ENVIRONMENT POLLUTION (PREVENTION AND CONTROL) AUTHORITY (EPCA), manifest IAS, https://www.manifestias.com/2020/05/07/environment-pollution-prevention-and-control-authority-epca-2/.

[9] Environmental laboratories-

(1) The Central Government may, by notification in the Official Gazette,

(a) establish one or more environmental laboratories;

(b) recognise one or more laboratories or institutes as environmental laboratories to carry out the functions entrusted to an environmental laboratory under this Act.

(2) The Central Government may, by notification in the Official Gazette, make rules specifying

(a) the functions of the environmental laboratory;

(b) the procedure for the submission to the said laboratory of samples of air, water, soil or other substance for analysis or tests, the form of the laboratory report thereon and the fees payable for such report;

(c) such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.

[10] Devika, President promulgates the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, SCC Online, https://www.scconline.com/blog/post/2020/10/29/commission-for-air-quality-management-in-national-capital-region-and-adjoining-areas-ordinance-2020/.

[11] The Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, Ministry: Environment, Forest and Climate Change, PRS India, https://www.prsindia.org/billtrack/commission-air-quality-management-national-capital-region-and-adjoining-areas-ordinance.

[12] Power to take sample and procedure to be followed in connection therewith-

(1) The Central Government or any officer empowered by it in this behalf, shall have power to take, for the purpose of analysis, samples of air, water, soil or other substance from any factory, premises or other place in such manner as may be prescribed.

(2) The result of any analysis of a sample taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3) and (4) are complied with.

(3) Subject to the provisions of sub-section (4), the person taking the sample under sub-section (1) shall

(a) serve on the occupier or his agent or person in charge of the place, a notice, then and there, in such form as may be prescribed, of his intention to have it so analysed;

(b) in the presence of the occupier or his agent or person, collect a sample for analysis;

(c) cause the sample to be placed in a container or containers which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent or person;

(d) send without delay, the container or the containers to the laboratory established or recognised by the Central Government under section 12.

(4) When a sample is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent or person, a notice under clause (a) of sub-section (3), then,

(a) in a case where the occupier, his agent or person wilfully absents himself, the person taking the sample shall collect the sample for analysis to be placed in a container or containers which shall be marked and sealed and shall also be signed by the person taking the sample, and

(b) in a case where the occupier or his agent or person present at the time of taking the sample refuses to sign the marked and sealed container or containers of the sample as required under clause (c) of sub-section (3), the marked and sealed container or containers shall be signed by the person taking the samples,

and the container or containers shall be sent without delay by the person taking the sample for analysis to the laboratory established or recognised under section 12 and such person shall inform the Government Analyst appointed or recognised under section 13 in writing, about the wilful absence of the occupier or his agent or person, or, as the case may be, his refusal to sign the container or containers.

[13] The Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, Ministry: Environment, Forest and Climate Change, PRS India, https://www.prsindia.org/billtrack/commission-air-quality-management-national-capital-region-and-adjoining-areas-ordinance.

[14] Dramatic growth in laws to protect environment, but widespread failure to enforce, finds report, UN ENVIRONMENT PROGRAMME, https://www.unenvironment.org/news-and-stories/press-release/dramatic-growth-laws-protect-environment-widespread-failure-enforce#:~:text=Despite%20a%2038%2Dfold%20increase,the%20UN%20Environment%20report%20found.