- Critique of the Personal Data Protection Bill, 2018 – Venkata Sai and Aditya Santosh Badana
The expert committee chaired by Justice B.N. Srikrishna in its final report aptly titled ‘A Free and Fair Digital Economy– Protecting Privacy, Empowering Indians’ submitted to the Ministry of Information Technology has embarked upon a draft ‘Personal Data Protection Bill, 2018’, that could structure the data protection framework in India for decades to come.
The bill is a host to several structural reforms including amendments to several Legislations for the harmonious interpretation and birth of new rights, such as Data Portability, Data Protection, Impact Assessment and an omnibus enforcement. A quasi-judicial agency, the ‘Data Protection Authority’ is also proposed. The bill also calls for imprisonment terms in the event of violations of sensitive personal data and hefty penalties in case of non-compliance. The focal point of the bill is ‘informed consent’, which irrefutably forms an integral test before imposing penalties. Additionally, the Competition Commission of India has been empowered to regulate the combinations of data processing entities, which fall short of the turnover thresholds. While the practical utility of the European Union’s General Data Protection Regulation (hereinafter EU GDPR) is yet to be seen, the bill is drafted in a way to ensure that it passes the espoused adequacy test of the Court of Justice of the European Union (hereinafter CJEU), and not to stifle the proliferation of digitalisation in India.
It is in this backdrop, that we intended to author this doctrinal paper which is innately structured to elucidate the nuances and the ramifications of the bill on Aadhaar Litigation and State Surveillance. An intricate emphasis has been laid down over the infirmities and shortcomings of the existing bill. Given the infancy of the bill, one can only hope that the bill remains flexible to alterations in the light of global experiences.
- Drivers for Cab Aggregators: The Curious Case of Worker Misclassification – Ashish Kumar
The cab aggregator industry has seen a phenomenal rise throughout the world, particularly in India, on the sheer count of the convenience it has brought to its customers. Aggregators operate as an intermediary platform, where they connect registered drivers directly to the cab users. The Indian legislature has taken steps towards formally recognising such aggregators as distinct business entities, however, such recognition comes with the ensuing debate regarding the employment status of drivers working for the aggregator companies. Under this, as the article discusses, the drivers are classified as independent contractors, although they seek the status of employees of aggregators. The paper discusses applicable tests adopted by the courts in India to differentiate between an employee and an independent contractor, in the context of labour laws in general, the position of aggregators in the contemporary legal system, and the outcome and impacts of the application of such tests and classification. The paper provides a brief overview of the global outlook on the misclassification battle and concludes with an alternate solution, which may be adopted to balance the conflicting interests.
- Kumari Chandra v State of Rajasthan: The Case that Sabotaged the Underlying Principle of Insanity – Suvam Kumar
The underlying principle of the defence of insanity is that no insane person should be punished for a crime that he did not intend to do. Since, criminal justice system works on the belief that punishing an innocent person is a grave violation of the basic human rights of an individual, this defence gives an absolute exemption from liability. One of the cornerstones of this defence is that it is not concerned with medical insanity but legal insanity. Legal insanity is a question of fact and not a question of law. Unfortunately, there is no golden scale to measure the mental state
of a person. Hence, it has to be decided by looking into facts and surrounding circumstances of the case. There have been several cases pertaining to insanity and there have been several instances in the past where the defence has been pleaded as a measure to escape liability. Hence, it is imperative for the judges to apply their judicial mind before reaching a conclusion rather than deciding it according to their whims and fancies.
Kumari Chandra v State of Rajasthan is one such case, which has caused huge turmoil and chaos among academicians and legal professionals. In this case, the Rajasthan High Court accepted premenstrual stress syndrome as a valid defence under Section 84 of the Indian Penal Code 1860. The judgment is problematic due to the irrational and unjustified reasoning adopted by the judges to decide the case. This case has opened a pandora’s box and has made Section 84
susceptible to misuse. The author, in this case comment, attempts to analyse the flaws in the judgment with the help of judicial precedents.
- Forbidden from the Outside World: A Case of Solitary Confinement in India –Nimisha Priyadarshi
Solitary confinement, as a form of punishment, was first introduced as a method of reformation in the 18th century in the United States at Philadelphia. In India, it was embodied in the form of cellular cells that were constructed in 1896 in the Andaman and Nicobar Islands. These prisons experienced the worst form of torture that can ever be inflicted upon human beings in modern times. Later, with the efforts of Mahatma Gandhi, the British closed down these prisons. However, solitary confinement reflecting the colonial mindset still haunts the Indian jails even today.
Gradually, in harmony with the ‘modern thinking’ and international standards of human rights, the 42nd Law Commission recommended abolishing solitary confinement. Despite such recommendation, it is still awarded to the convicts. It is the most degrading form of punishment since the convicts are kept in highly deplorable living conditions that not only violate the international standards of human rights and the fundamental rights under Article 21 of the Indian Constitution but also negatively impacts the psychology and physiology of the isolated convicts. The entire exercise of isolating the convicts from the society has a lasting effect on them, which nullifies any scope of repentance and reformation. The article analyses the provision
of solitary confinement in India in respect of the international conventions and the constitutional scheme of India. It further, attempts to highlight the deplorable living conditions inside the solitary cells that pose a negative impact on the psychology and physiology of the prisoner. The article, towards the end, equips the readers with recommendations of the various commission reports and eventually, rests with a conclusion that solitary confinement is a blot on humanity and hence, it should be abolished.
- Implications of SEBI Categorisation and Rationalisation of Mutual Fund Schemes – Akshay Douglas Gudinho
The Securities and Exchange Board of India (hereinafter SEBI) has overhauled the structure of mutual funds in India vide its circular (hereinafter the Circular) dated October 6, 2017. Prior to the Circular, fund houses were not bound by law to categorise mutual funds. This permitted fund houses to invest in a plethora of securities leaving the investor misinformed or lost in the clutter of investments. The Circular seeks to bring uniformity in the type of schemes offered by fund houses based on their market cap and risk arrangements. It attempts to make it easier for an investor in mutual funds to select and compare the various mutual funds in light of the number of open-ended schemes available (837 open-ended schemes as of February 2018) in the market prior to the Circular. The paper attempts to analyse the changes in the law after the publication of the Circular, the impact on the mutual fund industry and seeks to provide a comprehensive guide to investors post the re-categorisation of mutual funds.
- SEBI’s Order Against Pricewaterhouse Entities: An Appraisal –Tejas Mundley
Earlier this year, when SEBI passed its Order against the entire network of Pricewaterhouse in India in connection with their involvement in the fudging of accounts of Satyam Computer Services Limited, the auditing profession in India was feeling the ripples. This became evident with several auditors terminating their engagements with certain listed companies for a vast multitude of reasons including but not limited to hostile management, information asymmetry, etc. An appraisal of the Order reveals that the observations made therein have the potential to change the way the audit process works in India. Accordingly, the author has sought to delve into the same and in the process, understand how gatekeepers of a company are held accountable, what are the standards applicable to them, their responsibilities and thereafter, the scope of the study has been broadened to statutory auditors with a focus on listed entities particularly in the Indian context. Towards the end, certain recommendations have been made keeping in mind the Indian context while also focusing on the recommendations of various committees including the Kotak Committee. It is important to mention that there should be a regulatory framework to deal with the discretion available to an auditor while making them accountable for their words and to prevent this crucial process from further deterioration.
- Understanding ‘Mob Lynching’- Fallibility in Legislation or Laxity of Administration? – Sanika Kapse
The social undercurrent of our country has entered into a precarious phase of growing insecurities, charged by the prejudices of bullish ideologies. The outbreak in the series of incidents of mob violence has set dangerous precedence of usurpation of democratic values. This article purports to search the ‘casus belli’, further aiming to comprehend the social, political and cultural factors behind the growing menace. The subject is approached at by logically evaluating the vogue, substantive and procedural laws, their intricacies and deficiencies, to establish the importance of
structural spillover. This raises the need to extensively critique the much-discussed MASUKA bill draft along with Hon’ble Supreme Court’s recent verdict in the petition filed by the activist, Tehseen S. Poonawalla and the novel concerns it hoists. Moving away from the hyped rhetoric, that there is no requirement of an anti-lynching legislation, is a prerequisite for proper assessment of the matter. The article steps beyond the viewpoint of judiciary and legalities, and sketches out the continually dynamic popular interests and contemporary trends. Complexities in the nature of problem entail for diving into the facets of demographics, scrutinizing literacy, digital awareness, bystander apathy, need for reformation of the police department including want of crucial amendments to the present laws. The article concludes by furnishing the imperative that looms over the political class to come out of the state of policy languor; the positing of austerity as well as a sense of ‘savoir faire’ into the law enforcement agencies for mature handling of cases. Lastly, the chief responsibility of the citizenry to develop ‘content in character’ that would allow for the creation of a harmonious ethos through analytical debates.
The Unattainable Bar: A Lack of Gender Diversity in the Indian Judiciary – Kairavi Raju
Since its establishment, the Supreme Court of India has had only eight sitting women judges. A diverse bench is an essential characteristic of a fair and impartial judiciary. It provides minority sections of the society a voice and enhances the courts’ representative quotient and democratic legitimacy. The percentage of women judges in the lower and higher judiciary at present is nothing less than deplorable. This article highlights the operation of gender bias in the judicial system. It includes influencing bench compositions, evaluating potential women judges on arbitrary criteria, applying higher standards when assessing women judges in addition to constantly challenging their professional competency.
Furthermore, an attempt has been made to understand the reasons for such gender based bias. These include inflexible workplace environments, occupational capacity and limitations drawn on the basis of gender, failure on part of women to be able to freely ‘perform’ gender, the nature of law as a profession and insecurity on the part of men due to fear of major overhauling of legal system due to women’s disparate decision-making style. This article also examines the affirmative actions taken by numerous states in the country and reviews them in light of constitutional mandates and international conventions. Finally, the article examines women’s response to such organizational and professional barriers.