WRIT OF MANDAMUS

INTRODUCTION

Mandamus is a Latin word, which means "We Command". Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so. Writ of Mandamus can be used to order a job to be done, or it may allow an operation to be stopped in other situations.

TYPES OF WRITS OF MANDAMUS

1.      Alternative Mandamus

As the first step in the writ of Mandamus process, an alternative mandamus is issued. The alternative Mandamus requires the defendant to execute the required act, or appear in court to justify why it was not done.

2.      Peremptory Mandamus

A peremptory mandamus is issued when the defendant fails to demonstrate sufficient grounds for failing to carry out the act in question to comply with the alternative mandamus.

3.      Continuing Mandamus

A continuing mandamus is issued to a lower public authority requesting that it perform its required tasks to prevent a miscarriage of justice.

ORIGIN OF MANDAMUS IN INDIA

A continuing mandamus is issued to a lower public authority requesting it to perform its tasks in order to avoid a miscarriage of justice. In India the writ of Mandamus follows the English pattern. In pre-independent India, the three Supreme Courts derived the power to issue a Mandamus Writ within the towns of the Presidency by the respective charters. The letters patent creating the Supreme Court at Calcutta in 1773 introduced Mandamus in India. The Supreme Courts were empowered to grant the writ in the cities of the Presidency. In 1877, the Specific Relief Act replaced an order in the nature of mandamus in place of the Writ of the mandamus for the purpose of' requiring any specific act to be done or forborne by any person holding a public office within the local limits of his ordinary civil jurisdiction.

In a Leading case Raman & Raman v. State of Madras, A.l.R. 1959 S.C. 694 & State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196, it was said that “Mandamus will not issue to enforce departmental manuals or instructions not having any statutory force which do not give rise to any legal right in favour of the petitioner”

In a case Binny Limited V. Sadasivan, 2005 AIR (SC) 3202, it was said “A writ of mandamus or remedy is pre -eminently a public law remedy and is not generally available against private wrongs. It is used for enforcement of various rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.”

TO WHOM MANDMUS WILL NOT APPLY

In India it will not lie in their personal capacities on the President and the Governor of a State. The Constitution, however, expressly provides that appropriate proceedings may be brought against the Government of India and a State Government. Furthermore, the Constitution empowers the courts "to issue to any person or authority, including, where appropriate, any government" any of the writings mentioned in it. Then Mandamus is given against the Government

The term ‘subsidy’ comes from the Latin word subsidy, meaning 'reserve-stationed soldiers’, which essentially means ‘support from behind’. Subsidy means grant in the most common sense. This grant can be either in the form of cash or kind and is usually given to support an economic policy.

Subsidy is generally understood to be a Government-issued grant but this is not a very strict definition. The various forms of subsidy include direct subsidies such as cash grants, interest-free loans, indirect subsidies such as tax breaks, premium-free insurance, low interest loans, write-offs on depreciation, rent rebates etc. Subsidies have been recognized extensively around the world as a tool for enforcing government policies.

Objective of a subsidy and understanding Revenue and Capital receipts

The basic objective of granting a subsidy is to compensate the extra amount of expenditure incurred by the assessee.  Subsidies can be given for many reasons such as setting up of industries etc. Talking about capital receipts and sales receipts in this report, simply put, capital receipts don't impact the company's profit or loss, for example, we might say long-term asset sales are one kind of capital receipts.

Yet tax receipts do impact a company's profit or loss. As an example, it may be assumed that revenue receipts are the selling of goods, the commission obtained etc. The nature and function of capital receipts and revenue receipts are completely different.

In the landmark case of Sahney Steel and Works Ltd. v Commissioner of Income Tax, Andhra Pradesh 1997 228 ITR 253 (SC), in the above case, Hon'ble Supreme Court held that if the object (of subsidy) is to assist the assessee in setting up his business or expanding a project, the money must be regarded as obtained for capital purpose. But if the assessee receives money to assist him in carrying out the business operation and the money is only provided after and conditional upon the start of production, these subsidies must be regarded as aid for the purpose of trade and must be subject to taxes as those subsidies directly affect the profits of the company. The Supreme Court said that ‘motive’ and ‘purpose’ test needs to be applied to determine the nature of subsidy.

In this case the Andhra Pradesh Government gave certain relaxations to the company with regards to its operations. Benefits such as refund on sales tax on raw materials, machinery and finished goods, subsidies relating to power consumption, exemption of water bill when water is taken from sources not maintained by any govt or local body, etc.

In furtherance to this, there were certain conditions regarding the grant of subsidies under this scheme; (1) the subsidies will only be granted when the production has commenced, (2) the availability of incentives would be limited to only 5 years from the date of commencement of production.

Mr. Ganesh who was appearing for the assessee i.e. Sahney Steel Works contented that these incentives were given for rapid industrialisation in the State and the main objective of the incentives were to encourage industrialisation. There they must not be subjected to tax.

The Supreme Court finally held, that the incentives were granted after the company started the production and that the incentives provided were also subject to a time limit. These grants were not just given for setting up of an industry but were provided for conducting smooth production and granting relaxations such as reduced water and electricity bill and reduced  rate of sales tax which could ultimately result in increase in the profits of the company. By observing these points Supreme Court concluded that   these aspects must be treated as revenue receipts and shall be subjected to tax. Hence making it clear that the subsidies provided by the Government would be subjected to tax.

Authors of this post:

1.    Lakshay Parmar

2.    Dilpreet Singh 

Introduction

In India, various acts provide for favorable arrangements for the protection of children. These laws are intended to achieve a social purpose and to prevent vagrancy and destitution and to provide a quick, affordable and rapid mechanism for providing support and maintenance to children.

Statutory Provisions

Hindu Marriage Act, 1955, Section 26  – 

The court may pass orders relating to the custody, maintenance, and education of minor children during the proceedings under the Act. Under this Act, both parents (father, mother, or any of them) are liable to keep the children as ordered by the court. While making such orders, as far as possible the court takes into account the children's wishes. These orders and provisions may be altered from time to time. Any request for the protection and education of minor children during the proceedings pending under the Act shall be determined, as far as possible, within sixty days from the date of notification service to the respondent.

Hindu Adoption and Maintenance Act, 1956, Section 20-

 A Hindu male or female is bound to maintain his or her legitimate/illegitimate minor children and aged/infirm parents. Aged or infirm parent (which includes childless stepmother) or unmarried daughter have to be maintained if they are unable to maintain themselves. 

Criminal Procedure Code, 1973, Section 125 – Magistrate may order a person to make monthly allowance for maintenance in a case where any person who despite having sufficient means neglects or refuses to maintain –

(i)                 his legitimate or illegitimate minor child who is unable to maintain itself

(ii)               legitimate or illegitimate major child (not being a married daughter) unable to maintain itself due to any physical or mental abnormality/injury

(iii)             married daughter till she attains majority if her husband is not able to maintain her

(iv)              his/her father or mother who are unable to maintain themselves.

This section also makes a provision for maintenance during the pendency of proceedings regarding monthly allowance for maintenance. Also, application for interim maintenance during pending proceedings is to be decided by the Magistrate, as far as possible, within sixty days of the date of service of notice of application to such person. A person who fails to comply with the order of the Magistrate without showing sufficient cause may also be sent to prison. The order of maintenance passed under this section may be altered by the Magistrate on proof of change in circumstances.

In India, child maintenance is accepted under Section 125 CrPC. It was given the child can claim maintenance from the father in India. Section 26 of the Hindu Marriage Act also makes provision for child maintenance under Hindu law.

The provision of the Act specifies that a minor child is entitled to receive maintenance from the father if, or otherwise, a child's custody has been granted to the mother during the divorce proceeding.

Recently, Indian courts have also said that, under Indian family law, a major child, whether a daughter or a son, also has the right to receive maintenance from his / her father if they are dependent on their parents.

Mohan Singh Mawri v. Smt. Haripriya Mawri

The Uttarakhand High Court,while revising the amount of maintenance given to the wife, observed that although an adult son can not demand maintenance from his parents as a matter of right, in the Indian culture we can not forget the fact that the parents have to hold their adult child until he gets a suitable job and that it is a social duty on the parents to keep the adult child One can not equate this Indian culture and custom with European culture and custom.

Jayvardhan Sinh Chapotkat vs. Ajayveer Chapotkat MANU / MH/2581/2014

 Bombay High Court held that under the Hindu Marriage Act, a major son may not be entitled to maintenance. The Petitioner has, in the present case, made a specific application for educational expenses which he can use until he reaches the age of 18. And, as far as age is concerned, the son / claimant will reach a majority, it would not be the right age to become economically independent so as to make his living. In the facts given in the case, a major son of the well-educated and economically sound parents may claim educational expenses from his father or mother regardless of the fact that he has attained majority. It is not strictly maintenance as contemplated under Section 125 of the Code of Criminal Procedure or maintenance as contemplated under section 20(2) of  the Hindu Marriage Act.

T.Vimala vs S.Ramakrishnan Crl.R.C.(MD)No.180 of 2014

The Madras High Court Bench held that fathers are liable to pay maintenance to children who had attained majority even if the latter were not suffering from any mental or physical abnormalities and yet do not have sufficient financial capacity to maintain themselves.
Children who become major and do not suffer from any disability can also claim maintenance from their fathers like children under the age of 18. They can get educational expenses as well under section 125 of the Cr.P.C. in the state.
The Madurai bench of the Madras high court passed an order in the T, Vimala and others versus S Ramakrishnan case taking note of section 20 of the Hindu Adoption and Maintenance Act, by Justice P. Devadass.
It was held that:
“Education is an important aspect in children’s life... No father is expected to bring up a criminal or a disorderly person. Section 125 is not just for food for life, it should also be for food for thought. Otherwise, so far as children are concerned, we will be doing violence to the very object of Section 125.”

Scope of the Protection of Women from Domestic Violence Act,

The significance of this piece of legislation was clarified by the High Courts and the Supreme Court in India in a series of judgments. In a recent judgment, the Gujarat High Court in the case of Bhartiben Bipinbhai Tamboli v. Gujrat State and Ors, R/SCR.A/5672/2016 after reviewing thoroughly the provisions of the Domestic Violence Act,  has held that:

In this country, domestic violence is rampant and several women encounter violence in some form or the other, or almost daily. It is the least-reported type of cruel behavior, however. A woman resigns her fate as a daughter, a sister, a wife, a mom, a husband, a single woman in her lifetime to the never  ending cycle of enduring violence and discrimination.

This non-women's retaliation coupled with the absence of legislation addressing women's issues, ignorance of existing women's laws, and societal attitude makes women vulnerable. The reason why most cases of domestic violence are never recorded is due to the social stigma of the society and the mindset of the women themselves, where women are expected to be subordinate, not only to their male counterparts but also to the male relatives.

The remedies available to a victim of domestic violence have been limited until the year 2005. Either the women had to go to the civil court for a divorce decree or initiate prosecution in the criminal court for the offense punishable under IPC Section498A. No emergency relief for the victim is available in both proceedings. There was also no recognition of the relationships outside of the marriage.

This set of circumstances ensured a majority of women preferred to suffer in silence, not out of choice but out of compulsion. With all these facts in mind, Parliament considered it fit to enact an came to be known as The Protection of Women from Domestic Violence Act, 2005(hereinafter known as “The Act”). The Act's main object is to protect women from a man or / and a woman's violence. It is a progressive law whose sole purpose is to protect women regardless of the relationship that she shares with the accused. Under the Act, the concept of an aggrieved individual is so broad that it includes even women who live in a relationship with their partners within its purview.

Domestic Violence – Section 3 of the Act, describes the term 'domestic violence.' The definition has a large range and encompasses all types of abuse against women. This includes physical, sexual, verbal and emotional abuse, as well as economic abuse.

The sections read as follows-

For this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

1. Harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or

2.      Harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

3.       Has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

4.      Otherwise, injuries or causes harm, whether physical or mental, to the aggrieved person.

1.      Who is allowed to make a complaint under the Act?

Section 2(a) of the Domestic Violence Act defines “aggrieved person” as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

The Act protects not only those women who are or have been in a relationship with the abuser, but also those women who have lived together in a shared household and who are linked through consanguinity, or through a marriage or adoption arrangement.

In the Act, even those women who are sisters, widows, mothers, single women or living in any other relationship with the abuser have the right to legal protection.

Women in Live in relationships covered under the Act

The Supreme Court in the case D. Veluswamy v. D. Patchaiammal (2010) 10 SCC 469,  placed a broader meaning on an "aggrieved individual" under Section 2(a) of the Domestic Violence Act in which the Court mentioned as follows five ingredients of a living in relationship:

1.      The parties must behave as husbands and wives and are known in front of society as husbands and wives.

2.      They must be of a valid legal age of marriage.

3.      At the time of entering a relationship, no partner should have a sous living.

4.      They must have willingly cohabited for a significant period of time.

5.      They must have lived together in a shared household.

The Supreme Court also observed that not all live-­in­-relationships   will   amount   to   a relationship in the nature of marriage to get the benefit of Domestic Violence Act. The above-mentioned conditions shall be satisfied in order to obtain such profit and this must be proven by proof.

Status of a Keep- The Court stated that if a man has a' keep' which he financially retains and uses only for sexual purposes and/or a servant it would not be a partnership in the nature of marriage.

The Court also referred in this case to the word "palimony" which means providing maintenance to a woman who has lived with a man without marriage for a substantial period of time, and who is then abandoned by him.

Against whom can the complaint be filed under the Domestic Violence Act?

The Act defines “respondent” as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

In view of the scope of the term respondent covering an adult male person, the judiciary has been confronted time and time again with the contention that an aggrieved person can file a complaint only against an adult male person under the Domestic Violence Act and not against the husband's female relatives, i.e. mother-in-law, sister-in-law.

However, in Sandhya Wankhede v. Manoj Bhimrao Wankhede (2011) 3 SCC 650 case, the Supreme Court put the issue to rest on the grounds that the provisions of Section 2(q) do not preclude husband's or male partner's female relatives from the scope of a lawsuit that may be lodged under the Domestic Violence Act.

Not only men but women can also be prosecuted under the Domestic Violence Protection Act (DV). The Supreme Court revoked the words "adult male" from the relevant provision in the DV Act to establish that a woman may also lodge a complaint against another woman, accusing her of domestic violence.

Under Section 2(q) of the 2005 Act, a complaint may only be lodged against an "adult male individual," thus insulating women from being convicted of the offenses referred to in the statute.

But a bench of Justices Kurian Joseph and Rohinton F Nariman ruled that this clause violated the legislation's purpose because "domestic violence perpetrators and abettors" can also be women.

It acknowledged that the statutory intent to provide effective protection for women's rights could easily be defeated by an adult male person who is not in the forefront, but brings forward female persons who could forcefully evict a woman or defeat any other order passed under the act without fear of calling for prosecution.

The bench held:

“The microscopic difference between male and female, adult and non-adult, regard had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, the words ‘adult male person’ are contrary to the object of affording protection to women who have suffered from domestic violence of any kind” 

The court ruled “We, therefore, strike down the words ‘adult male’ before the word ‘person’ in Section 2(q), as these words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act,”

The bench resorted to the "doctrine of severability" and only struck down that part of Section 2(q) which produced a gender-based distinction in relation to offenders under the Act. “Application of the aforesaid severability principle would make it clear that having struck down the expression ‘adult male’ in Section 2(q), the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words,” it held

Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors, Ct. 28 CRR 1795 of 2017 

“Pursuant to the provisions of the DV Act, a complaint against a daughter-in-law, a daughter or a sister could be maintained if they were a co-respondent in a complaint against an adult male who is or has been in a domestic relationship with the complainant and that co-respondent.”

No woman can call herself free until she can choose consciously whether she will or will not be a mother - Margaret Sanger

Abortion policy in India is consistent with safeguarding reproductive rights as envisaged by International Conference on Population and Development (ICPD) and similar other international agreements. It does not justify abortion as a method of family planning. Rather, it promotes the advancement of family planning services to prevent unwanted pregnancies, while recognizing the importance of providing safe, secure, available and appropriate abortion services for women who need to terminate an unwanted pregnancy.

Under criminal law the word abortion is generally used to describe a deliberate termination of pregnancy. The word Abortion in common usage means premature fetal removal during pregnancy.

Abortion is the intentional termination of gestation by any means and at any time during pregnancy from conception to full term.

Abortion as a Fundamental Right

In Suchita Srivastava and V. Krishnanan, the Madras Supreme Court and the Madras High Court respectively upheld the right of women to choose in the case of continuing pregnancy. In Suchita Srivastava, the Supreme Court clearly held that the State has a duty to guarantee the reproductive rights of a woman as a part of her rights to personal freedom, dignity and privacy under Article 21.

Delhi High Court ruled in Laxmi Mandal v. Deen Dayal Hari Nagar Hospital that preventable maternal death constitutes a breach of Article 21 of the Constitution. The High Court ordered that Delhi's NCT enforce the National Rural Health Mission program assurances, including safe abortion facilities, to prevent maternal deaths. The landmark decision gave rise to a state obligation to take steps to end preventable maternal death, including deaths caused by insufficient access to safe abortion.

The Indian Penal Code

Section 312 to 316 of the Penal Code deal with the penal abortions. These sections have been placed under the chapter of offences affecting human body.

(A)                     Section 312 of the Penal Code provides that a person who voluntarily causes a miscarriage to a child-bearing woman will be punished with imprisonment for three years, or fine, or both. The crime cannot be remembered, is bailable, and is not compoundable. If the woman is quick with child the sentence can go up to seven years and fine, unless the miscarriage is induced in good faith to save the woman's life.

(B)                     According to section 313 of the Indian Penal Code, whoever commits a miscarriage to a woman with child without consent, whether the woman is quick with child or not, shall be punished with life imprisonment or imprisonment of either description for a term of up to ten years, and shall also be liable to fine. Section 313 of the Indian Penal Code makes it punishable to cause miscarriage without the consent of the woman. The gravity of the offence is enhanced.

(C)                     When an accused intending to cause only miscarriage to a woman with child causes her death, he is convicted under section 314 of the Penal Code.

(D)                     In compliance with section 316 of the Indian Penal Code the accused does not actually need to induce abortion or intend to kill the inner life. Though not intended or wanted, he does an act likely to cause his death, he would be guilty of this crime. Only after the woman has become' fast' with child and before birth can this crime be committed. Accordingly, under this clause, the death of a fast-unborn child [ advanced pregnancy] by an act of guilty homicide is punishable for up to ten years imprisonment and fine. The crime under section 316 is cognizable by the Court of Session, not bailable, not compoundable and triable.

The Medical Termination of Pregnancy, 1971

The Act, which consists of only 8 sections deals with the various aspects such as the time, place and circumstances in which a registered medical practitioner may terminate a pregnancy. This legalizes abortion in situations where there is a contraceptive failure or where the pregnancy has an adverse effect on the physical or mental termination of the pregnancy, the pregnant woman's consent is a must unless she is a minor or lunatic then consent is necessary from her guardian.

Broadly, the Act allows for the termination of pregnancy on medical, social, humanitarian and eugenic grounds, up to 20 weeks of gestation m by a recognized licensed and sufficiently trained medical practitioner to provide a safe environment.

It can be remembered that the M.T.P. Act does not provide safeguard for the unborn child. Any indirect protection it provides under the Law is merely a by-product arising from the woman's rights. An important feature of the Act is that after twenty weeks it doesn't allow termination of pregnancy. Under the M.T.P. Act, abortion is legal until the second trimester, but it is at medical opinion's absolute discretion. It is important to note that the M.T.P. Act does not permit for induced on demand abortions.

The Medical Termination of Pregnancy Rules and Regulations 1975, define the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality. Any termination of pregnancy done at a hospital or other facility without prior approval of the Government is deemed illegal and the onus is on the hospital to obtain prior approval.

Medical Termination of Pregnancy (Amendment) Bill, 2020

On 29^th January 2020, the Union Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020, amending the Medical Termination Pregnancy Act, 1971. It will be implemented in the subsequent Parliamentary session.

According to a statement, the proposed amendment seeks to raise the upper gestation limit from 20 to 24 weeks for special categories of women which will be specified in the amendments to the Medical Termination of Pregnancy Rules and which will include' vulnerable women including rape survivors, incest victims and other vulnerable women (such as women with different abilities, minors) etc.

Conclusion

There is no freedom, no equality, no full human dignity and person-hood possible for women until they assert and demand control over their own bodies and reproductive process…The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned. - Betty Friedan.

In the larger context of sexual and reproductive health, there is a need to increase awareness of abortion services, particularly among teenagers, by incorporating approaches and interventions within value systems and family and gender relations. To enforce these policies effectively, they need to be assisted by political will and dedication in terms of sufficient resource allocation, training, and funding for services, supplemented by social feedback focused on women's needs.

"GOVERNMENT CALLS FOR CHANGES IN 'POCSO ACT' TO STOP ONLINE CHILD ABUSE"

POCSO ACT (THE PROTECTION OF CHILDREN FROM SEXUAL OFFENSES ACT)

·         The panel that took part in the meeting was created by Rajya Sabha Chairman Venkaiah Naidu in 2019 December.

·         Committee demands for change in meaning of 'child pornography' under the POCSO Act.

·         The committee had recent discussions with Twitter, Facebook and Google.

A panel of parliamentarians, formed by Rajya Sabha chairman Venkaiah Naidu to curb child abuse online, has suggested a dedicated mechanism for dealing with child sex crimes online.  The panel also called for improvements to the definition of ' child pornography ' under the Protection of Children from Sexual Offences (POCSO) Act.

In December 2019, the panel was formed to look at possible legislative provisions to address online child exploitation.

Reportedly, the panel wants the POCSO Act to include the act of "promoting or advocating sexual activity" as an offense to a minor. The MPs may also request an international monitoring platform on cybercrime to promote coverage of sexual crimes against children from around the world. Microblogging website Twitter and global tech giant Google have come under the scanner of the Indian government for not doing enough to prevent porn and allowing for easy access to child abuse videos for young users. A parliamentary committee has been seeking answers on the same.

POLICIES THE SOCIAL MEDIA COMPANIES HAVE ON PORN CONTENT --

TWITTER - Twitter said at the meeting that the microblogging platforms allow users to share porn shot consensually. Twitter also clarified that it does not allow any kind of material for porn revenge or child abuse, and has a zero tolerance policy for child sexual exploitation.

GOOGLE - Google reportedly told the panel that its search engine and YouTube have restricted the search for any such abusive content. The company told the legislature committee that requires YouTube to log in to watch adult or pornographic content to ensure the viewer is over the age of 18.

According to the annual report of the home ministry in October 2019, about 71 videos of child pornography, murder, and gang rape were taken off social media, among other offences. A list of 500 keywords used to search these videos was also collected to look into it and shared with service providers such as Google, Yahoo, Twitter, WhatsApp and Microsoft.

In September 2018, the government launched a website to file complaints about inappropriate online content. More than 10 thousand complaints relating to child pornography online content and child sex abuse was reported on the site until 31 March 2019. The centralized platform aims to provide citizens with easy access so that they can report illegal content.

The committee formed by the Indian Government to further investigate the matter has members from ten political parties and was originally set up as an "informal panel" to study on the web issues related to pornographic content. It was later converted into an ad hoc committee, following the panel's logistics problem.

The panel also has plans to hold talks with the Telecom Regulatory Authority of India (TRAI) and National Commission for the Protection of Child Rights. The panel will eventually also have consultations with civil society groups, child psychiatrists, teachers, experts, parents and government agencies such as the CERT-In and law enforcement agencies.

INDIA AND CYBER BULLYING --

The risk of cyberbullying of Indian children has increased over the years. India ranks much higher when it comes to cyberbullying compared with other Asian countries, according to available data. The rise can be felt with the number of cases we get these days. For instance, a Class V student approached us for a fake Facebook profile created to defame him. Similarly, a Class VIII girl's Facebook account was hacked for personal vendetta.

Studies show that 53% of Indian kids in the age group of eight to seventeen years have been subjected to cyber bullying at least once. Cyber bulling has also had a sociological and physiological impacts on young minds.

STARTING OF CYBER BULLYING --

Cyberbullying can be classified as -direct attacks and proxy bullying. Direct cyber attacks, are those in which the attacker targets the victim via:

·         Whatsapp and messaging on Messenger application

·         Putting up fake information on blogs and private information online

·         Denting the victim's image by posting obscene content or hate messages in chat rooms.

·         Sharing pornographic contents via email or messages

·         Spamming the victim's email address with junk mails

·         Trojans(malicious software) is used for hacking remotely, disable computer system's camera's LED which will notify the user that the camera is on. It is used to follow and exploit actions of kids(specially girls).

·         Creating an online poll with the particular victim's name to body shame and defame or embarass the person

NEW THREATS AND CHALLENGES --

As social media continues to evolve, the threat of child abuse often appears in new avatars such as the Sarahah and Blue Whale Challenges. While the BWC is a web game, Sarahah is another online application that challenges the player to do 50 tasks that often drive the child to suicide and allows people to post anonymous comments that are often rude, offensive, and humiliating.  Anonymity of Sarahah makes it a potential threat, as it can be used for blackmailing as well as to send offensive messages looking for sexual benefits.

Such online requests often expose children to a higher risk of online abuse, bullying or even suicide.

WHY ARE KIDS TARGETTED ?

There is no specific answer to 'why children?' And data indicate that the burden of child abuse often lies on children. This is mainly because it is easy for offenders to use them. Also, online abuse often causes academic loss and disturbs the mental health of a child. when a child has the fear of restrictions of being imposed on internet usage and use of mobile, does not allow the kid to share such incidents with the parents.

PREVENTING CHILD ABUSE --

 Parents can play a vital role in curtailing child abuse, by being more vigilant and following a few guidelines :

·         To restrict and monitor certain websites by using parental monitoring software applications.

·         Set rules for the suitable use of computers, cell phones, and other technologies.

·         Monitoring the child's online activities

·         Report cyber bullying incidents to the nearest police station.

PARENTAL GUIDELINES TO PREVENT CHILD ABUSE --

·         NEVER SHARE PASSWORDS WITH ANYONE, EXCEPT PARENTS

·         Teach your children to save evidence of abuse (harassing messages, sexually explicit pictures, or threatening texts) and not to respond to them

·         They should attend cyber awareness programmes (online/offline)

·         Never allow children to make new friends online

·         Check the confidentiality of their social media account. Teach them to keep personal information private.

Note that online abuse is frightening because the abused child often thinks there is no way out because the abuser can offend anytime, anywhere, even when the child is home. The only way to protect your child from online perverts is to be confidential.

RECOMMENDATIONS OF THE COMMITTEE --

·         The Committee has recommended a number of significant changes to the POCSO Act, 2012 and the IT Act, 2000, with corresponding changes to be made in the Indian Penal Code.

·         A provision to be included in the POCSO Act 2012 in which any written material is used to promote or suggest sexual activities with a person under the age of 18 years; The offense under the Act is rendered by visual representation or audio recording or by any characterization.

·         Another clause to be inserted in the POCSO Act 2012 which stipulates a Code of Conduct for intermediaries (online platforms) to maintain online child safety, ensure age-appropriate content and curtail children's use for pornographic purposes.

·         Under the 2012 POCSO Act, school management should be responsible for the safety of children within school premises, transport services and any other programs that are related to the school.

·         National Cyber Crime Reporting Portal shall be known as the national portal under-reporting criteria in the POCSO Act in case of electronic content.

·         A new section will be included in the IT Act 2000, which provides for punitive measures for those providing pornographic access to children as well as for those accessing, producing or transmitting child sexual abuse material.

·         Union Government shall be empowered to block and/or ban all websites / intermediaries carrying material of child sexual abuse through its specified authority.

·         The IT Act to be amended makes intermediaries responsible for all measures aimed at proactively identifying and removing CSAM and reporting it to the Indian authorities, as well as to foreign authorities. Gateway Internet Service Providers (ISP's) have a significant responsibility for detecting and blocking CSAM websites. It is also for the intermediaries to report to the designated authority, IP addresses / identities of all child porn / CSAM keyword searches / accesses.

Introduction

Marriages are made in heaven as is often said and are solemnized on Earth. The very basis of a societal structure is marriage. It is the base of a family and a society in effect without which there can be no civilization.

Under Hindu law, marriage is considered a sacrament which is eternal and indissoluble. Parliament codified the legislation relating to marriages as the Hindu Marriage Act, 1955. In Hindu Law Monogamy is strictly imposed. Before the Hindu Marriage Act was passed, divorce was not a recognised means of putting an end to a marriage, the only exception being where it was accepted by law, which meant that the laws of dissolution of marriage and monogamy were, to the contrary, subject to a legitimate custom.

Divorce Law in India

Modern society has become quite complex coupled with shifts in socio-economic conditions seconded by the disintegration of the common family system, as well as rapid industrialization and urbanization, education and employment. In addition, the laws granted equal status and women's rights had tremendous impact on the institution of marriage that is no longer regarded as an indissoluble union. There has been a considerable legislative and judicial interference in the gamut of matrimonial laws all over the world. Divorce, previously considered evil, has codified laws that are being substantially modified and liberalised.

Irretrievable Breakdown theory

In India, with regards to the Hindu Marriage Act and Special Marriage Act, the Government of India has attempted to include ‘Irretrievable Breakdown of Marriage’ as a ground of divorce as per the recommendations of the 71^st report of the Law Commission of India.

Irretrievable Breakdown of Marriage is defined as:

“The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”

In other words, the irretrievable breakdown of a marriage can be described as such a failure in the marriage relationship or such adverse circumstances to that relationship that there is no reasonable probability of the spouses staying together for mutual comfort and support as husband and wife.

That is, for an irretrievable breakdown of marriage there is still no codified law. The Hindu Marriage Act acknowledges few grounds for marriage dissolution in Section 13. But, with the change in social mores and the changing nature of marriage in society, the supreme court has shown particular concern about making irreparable breakup of marriage a basis for divorce.

Reasons the Court will accept for irretrievable breakdown

·       For a period of time the pair did not live together as husband and wife.

·       One partner had sexual intercourse with another and the other partner finds it impossible to continue living together as husband and wife because of this.

·       After being declared a 'habitual criminal' one partner is in prison. (This means that he or she continues to commit crimes and was sentenced to 10-15 years imprisonment because of this.)

·       One partner deserted the other.

·       One spouse manipulated the other, the husband for instance continues to harass the wife.

·       One partner is a drug addict or an alcoholic.

·       The partners don't love each other anymore-they might be too different or they married too young.

The Supreme Court examined certain cases in A. Jayachandra v. Aneel Kaur. And when the respondent gives priority to her career over her husbands ' rights, it unerringly points to disharmony, propagation so disintegration of marital harmony, from which the Court will deduce irretrievable breaches of marriage.

The Court found the marriage broken down irretrievably, and granted the husband divorce. Nonetheless, this is very surprising, as many times in similar circumstances the court has ordered the restoration of marital rights with the notion of an Hindu marriage being sacrosanct rather than issuing a decree for divorce as the very basis of the restitution decree.

Merits of the theory

The validity of the argument, as argued by the jurists, is that marriage, which in practice is called a sacramental institution, should be founded on the basis of a healthy marriage which is acceptance, compromise and mutual respect. If any of the marriage party isn't ready to live with the other party the relationship won't be a happy one. Stretching such a relationship will do no good to each other, rather it will create resentment and dissatisfaction between the parties. Therefore it is important to end such a marriage to protect the sanctity of marriage, to reduce the number of unhappy marriages and to avoid the precious years of life of the spouses from being wasted.

Demerits of the theory

The Law Commission of India has dealt with the demerits of the irretrievable breakdown principle in detail in Chapter 4 of the 71st report. The two primary oppositions addressed in the report are:

·       It will promote divorce. It will encourage partners to end the marriage out of their own enjoyment, or even to any of the partners.

·       Allowing the culprit to take advantage of his own fault by splitting and dissolving the union.

Conclusion

To conclude, it can be said that marriage is an institution which is deeply interested in the preservation of the public at large. It is the family foundation and, in effect, the culture for which there can be no civilization. This foundation presupposes the existence of a platform built on the basis of sound spousal understanding.

If this understanding between the partners is lacking, and the marriage is a persistent disease, then it is best that the marriage should be dissolved with court intervention. The continuation of such a marriage does not serve any useful purpose. Therefore, such marriage should be dissolved on the basis of the "irretrievable breakdown theory for the mutual benefit of both spouses.

In that eventuality the continuation of such a relationship is meaningless, and such marriage should be broken as per the Irretrievable Breakdown of Marriage theory. It's high time we understood the need for Irretrievable Breakdown of Marriage Theory so that couples can have a new and better life, rather than spending their young days in court.

INTRODUCTION OF STALKING INTO INDIAN LEGAL REGIME

Have you witnessed the uncomfortable stalking experience? Whether you're a college student, a professional at work, or a housewife, it doesn't matter— many women in India get stalked daily. The criminals are mostly hanging around in the neighborhood, outside workplaces and schools, etc.

WHAT IS THE BASIC DEFINATION OF STALKING?

Stalking is constant communication, which will make you feel frightened or abused. You may be stalked by someone who watches you or often calls you. Stalkers can also use apps to harass you by sending unwelcome emails or messages from social media. About one in six women in her lifetime have witnessed stalking.  Women are twice as likely to be stalked as men are. Stalking is a crime.

HISTORY OF STALKING AND ITS INTRODUCTION IN INDIAN LAW

The Indian Penal Code, which became a colonial law in 1860 ("IPC"), did not mention stalking as an offence. The only protection for women was for sexual harassment under Section 354, and Section 509 IPC for using words or gestures to insult a woman's modesty. Under IPC section 354, anyone who assaults a woman believing it will offend her modesty is liable to be prosecuted by law. Her sex is the essence  of a woman's modesty. The ultimate test to be seen if the modesty of a woman is offended is to see whether the act or attack will amount to disturbing a woman's sense of decency. The law only makes it illegal if three conditions are met–that is,

a)      The attack must be against a woman,

b)      The perpetrator must have used excessive force, and

c)      Their modesty should be offended.

In addition, the Magistrates did not always consider cases of sexual assault until the Supreme Court unambiguously instructed the Magistrate in Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) to accept the complaint under Section 354 read with Section 509. Also a big step in acknowledging women as objects of sexual harassment in various forms was the Landmark judgment Vishaka v State of Rajasthan(1997) discussing sexual harassment at workplace. Another important judgment which broadened the subject's jurisprudence in service law was that of the Apparel Export Promotion Council v. A.K. Chopra (1999) ruled that every act of sexual harassment resulted in violation of the fundamental right of women workers to equality and the right to life and personal liberty.  One of the big stalking-related crimes is that of' eve harassment.' In 2012, the Supreme Court in its judgment of Inspector General of Police v. S. Samuthiram (1999) set out eight guidelines to curb eve teasing. The Court discussed the importance of taking up victim and bystander grievances for eve teasing in public places such as public transportation, educational institutions, cinema theaters, etc.

In a leading case, PRIYA MATOO CASE a young law student, her stalker Santosh Singh, the son of a former IPS officer, raped her and murdered her in her Vasant Kunj home. Mattoo pleaded with police, but nothing happened. Multiple complaints lodged with Vasant Kunj and RK Puram police in February and August 1995 forced Singh to give "police undertakings but they were not disincentive. Mattoo was alone at home on January 23, 1996, when she was raped by Singh and then killed. Afterwards the case was transferred to CBI IN 1996. The trial court convicted Singh in December 1999, giving him the benefit of doubt. The high court ruled and awarded him the death penalty. He was later granted life imprisonment by Supreme Court in December 2010.

In 2013, the Criminal Law Amendment Act was passed through the Justice Verma Committee after the multitude of crimes against women and the increasing violence. Online as well as offline, Stalking has been identified as an offense under Section 354D.  The 2013 Amendment Act also introduced reforms to crimes involving sexual harassment, voyeurism, trafficking, etc., resulting in severe penalties for such offenses. Section 354 (D) of Indian Penal Code,1860 defines Stalking as:-

(1)    Any man who—

(i)                 follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii)               monitors the use by a woman of the internet, email or any other form of electronic communication,

Commits the offence of stalking;

 Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

(i)                 it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii)               it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii)             in the particular circumstances such conduct was reasonable and justified.

(2)     Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

CLASSIFICATION OF OFFENCE

Punishment-Imprisonment upto 3 years and with fine for first conviction-Cognizable-Bailable-Triable by any magistrate. Punishment-Imprisonment upto 5 years and with fine for second or subsequent conviction-Cognizable-Non bailable-Triable by any Magistrate.

Stalking can also take the form of unwanted telephone calls, computer messages, writing letters, etc., or it can also happen on an online platform when a man watches and harasses a woman on the internet, email or any other form of electronic communication.

INFORMATION TECHNOLOGY LAW AND CYBER STALKING

The Information Technology Act, 2000 was the next step to check offences in the cyberspace. Chapter IX of the Act deals with the offences including identity theft, impersonation, sending obscene material etc. Under this Act, though, cyber stalking as a standalone concept was not addressed directly. What the IT Act was trying to do was address the online stalking consequences. For example, in a situation where several identities are produced to harass a person online, the IT Act defines this provision and explains it as an impersonation offense under Section 66D. Here a person assumes a fake identity with the intention of deceiving or misleading another person using a computer or communication device

There are three forms of Cyber Stalking which are as follows:-

1.      The first is email harassment and can take many forms such as unsolicited, whether it is a scene or a threat message.

2.      Then internet stalking takes place. Here the stalker uses the internet to slander and endanger the victim. In such cases cyber stalking takes on a public dimension rather than a private one. What disturbs this type of cyber stalking is that it is likely to spill into the physical space.

3.      The third mode of cyber stalking is computer stalking which exploits the workings of the internet and the Window operating system in order to assume control over the computer of the targeted victim.

In a leading case in 2016, Shri Deu Baju Bodake v The State of Maharashtra's Bombay High Court investigated a suicide case by a woman who claimed that the reason for her suicide was the accused's constant harassment and stalking. At work the accused would always harass her and insist on marrying her. In addition to the charge for abetment to suicide, the High Court held that the charges under Section 354D should have been registered.

JUDICIAL PRONOUNCEMENT

Kalandi Charan Lenka v State of Orissa (2017)

The informant is a student studying at the Women's College Pattamundai in Pattamundai. Among other items, it is alleged that her father has three daughters and that his first daughter is a mentally retarded girl and that the second daughter is the informant. The victim girl came in her mobile alleging her character while researching unknown obscene messages at School. Before this also from unknown mobile number, pornographic messages influencing the informant's character also came across her father's cell phone. Her father after passing the message became sorry and told the informant-victim about the matter. Thus the victim's wife became mentally disturbed to see these disgusting texts. The written letters containing obscene languages imputing the victim girl's character then came to her father during the year 2015-2016. Those letters came with sexual comment and a template that denigrated the victim girl's character. The messages not only influenced the victim girl's character but also linked the other male members to the victim girl for having sex. The Cyber Cell of the Crime Branch had investigated the same issue, and the High Court held that the accused was prima facie liable for sexual harassment offenses under Section 354A, 354D for cyber stalking under the Indian Penal Code, 1860, Section 66-C for identity theft, Section 66-D for impersonation and Section 67 and 67 for electronic transmission of obscene and sexually explicit content. Therefore the application for the bail was also rejected.   

IMPROVEMENTS IN STALKING LAW

Due to the large cases of violence against women, the Delhi Assembly adopted a resolution in March 2018 amending the law and making the stalking a non-detrimentable offence, which is expected to be tabled in the Winter Session. The price had been high for five of India's most famous accusers. A teenage woman of a lawmaker's alleged rape tried to burn herself outside her state chief minister's home, after her father died in police custody. The guy she accused has sued a high profile journalist for defamation. Another reporter says she has trouble finding work. And a Bollywood actress says she feels her accusations have led to real change in India, though the consequences since she first made them over a decade ago have contributed to her exhausted decision to move to the US.

The year 2018 MeToo movement's backlash aims to launch an open dialog about all forms of sexual abuse that women face in India. The policy must also strongly consider the issue of online stalking to safeguard women's right to be free from cyberspace violence. The law enforcement agencies also need to gain a better understanding of the problem and investigative techniques also need to change to keep pace with changing times. 

#METoo

What is E-invoicing?

E-invoicing or electronic invoicing is a process of validating invoices electronically through GST Network (GSTN) for further use on common GST portal. It does not mean generation of invoices from a central portal of tax department. The GST council has notified that e-invoice is mandatory for registered person whose aggregate turnover in a financial year exceeds Rs. 100 crores.

'E-invoicing' or 'electronic invoicing' is a method where GSTN electronically authenticates B2B invoices for further use on the standard GST portal.

Under the proposed electronic invoicing system, the Invoice Registration Portal (IRP) to be operated by the GST Network (GSTN) which will issue an identification number against each invoice.

E-invoicing benefits

E-invoicing is the new system by which GSTN electronically authenticates business to business (B2B) transactions for further use on the common GSTN portal. Currently, a trade is made directly between the manufacturer and the buyer, without the government having any evidence of the sale. With e-invoicing, a unique number called IRN (Invoice Reference Number) will be given when an invoice is made, it will be submitted to the GSTN portal where pre-validation will be performed. When IRN is released it will also exchange the tax invoice with the receiver.

This system could be a blessing for a nation like India where tax evasion is widespread. Such real-time monitoring of invoices can be done by both vendors and government, leading to a reduction in fraud and fake GST invoices.

Secondly, when it comes to GST return filing process, e-Invoice further improves the automation. Currently GSTR filing requires enormous manual work vulnerable to error. The e-invoicing can provide this process with ease, speed and accuracy. When IRN is released, it will update the Supplier's Annexure–1 & if e-waybill is needed, Part–A of the same will be modified. It will also upgrade the recipient's Annexure-2.

Initiative of GSTN’s E-invoicing

The draft version of the e-invoice format was published in an excel prototype by GSTN and made available for public feedback on 20 August 2019. The same was approved by the GST Council at the 37th meeting on 20 September 2019, with some amendments. ICAI-associated GSTN drafted the format to comply with the GST and other Indian tax laws. Besides these, the format adheres to the standards of the international and various industries. The e-invoice interface looks exhaustive and provides various industries and companies with a single format.

Modes of Generation of E-Invoice under GST

Multiple modes will be made available so that taxpayer can use the best mode based on his/her need. The modes given below are envisaged at this stage under the proposed system for e-invoice, through the IRP (Invoice Registration Portal):

1. Web based

2. API based

3. SMS based

4. mobile app based

5. offline tool based and

6. GSP based.

The Road Ahead

E-invoicing represents a push for a digital economy. Curbing tax evasion and increasing government tax collections may ensure the government does not further raise GST rates. For every record that exists, e-invoices can be generated-from debit or credit notes to vehicle invoices. The resultant positive effect on performance would result in reducing, if not eradicating, mistakes in data entry and greater transparency.

Certiorari

Meaning- Certiorari is a latin word which means "to be fully informed". A writ of Certiorari orders the lower court to deliver its record in a case to the higher court for further reviews.

United States Supreme Court uses Certiorari to select most of the case it hears.

How is Certiorari different from Prohibition?

While the prohibition writing is available during the pending proceedings, it is only after the order or decision has been announced that the certiorari writ can be resorted to.

The conditions necessary for issuing a certiorari writ-

·         There should be a judge, tribunal or officer with legal authority to assess the issue with a duty to take legal action.

·         Such a court, tribunal or officer must have issued an order in that case, tribunal or officer acting without jurisdiction or beyond the scope of the judicial authority vested by statute.

·         The order may also contravene the standards of natural justice or the order may include an error of judgment in determining the facts of the case.

Case

Name of the case-

 CRAWFORD V. WASHINGTON

Summary of the case-

·         Mr. Crawford was charged for attempting murder on a man who tried to rape his wife.

·         Crawford's wife gave witness to the investigating officers regarding the whole incident.

·         During the trail procedure, the prosecution tried to use the statements against Crawford because his wife was not present due to her marital reasons.

·         Crawford fought that the statement was inadmissible under the Sixth Amendments Confrontation Clause.

·         The court said that a defendant has the right to challenge the witness who testifies against him with reasonable opportunity to cross-examine under the Confrontation Clause and that opportunity did not exist in this case.

Facts of the case-

Mr. Crawford was charged with attempted murder and assault of a man he claimed was attempting to rape his wife. The prosecution tried to introduce the Crawford's wife's recorded statement where she described the stabbing. The court allowed the statement recorded on the tape into evidence. Under the state marital right, Crawford's wife was unable to testify. Crawford then appealed and the appeals court in Washington ruled that the inclusion of the taped statement violated Crawford's right of conflict with the Sixth Amendment.

Procedural History-

The state then appealed the decision to the state supreme court that upheld the judgment of the trial court. Crawford brought an appeal to the United States Supreme Court, which granted certiorari.

Rule of Law-

When the declarant is unavailable and the complainant has had an earlier opportunity to cross-examine the witness, past testimony of a witness not present at trial is admissible.

Issue of the case-

Whether a documented police statement made by an unavailable witness is admissible at trial?

--NO.

Judgement-

The Court overturned and remitted the decision of the supreme court of the state of Washington.

Reasoning-

The Court held that the Confrontation Clause of the Sixth Amendment guarantees that a defendant has the right to face witnesses who testify against him with a reasonable opportunity to cross-examine him.

Significance of the case-

Crawford v. Washington established the evidentiary rule that a defendant is entitled to cross-examine witnesses who testify against him at a trial.