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Legal

Case Analysis: The Students Companion at Law School

What is Case Analysis?

Being law students, we are always asked to be always updated with ongoing legal affairs and issues around us, from new laws or amendments to latest judgments passed or the legendary and landmark cases that ever happened. We all are supposed to be well updated while we pass our way through the long law school life. Amidst all this, one practice is always advised to young law students that is to read and Follow up latest and some landmark judgments and be brief about it so that they are always ready to explain it to anyone who may or may not be associated with the legal world.

We all are aware of the fact that how long these judgments are, reading them itself is cumbersome and boring, no doubt it’s beneficial as it not only increases our legal knowledge but also increase our vocabulary. So it has always been advisable to prepare a case analysis for any case or judgment passed.

A Case Analysis is a process wherein case is studied thoroughly and on the basis of these studies conclusions are drawn on how the courts have applied the laws and how are they interpreted. It also includes a brief account of the facts of the case and arguments that were raised by both the parties and in accordance to which law or regulation the judgment was passed. The sole aim behind drawing case analysis is to make the long hefty case judgments into a brief structured paper, which shall contain each and every aspect and meaning of the main case, but in a more brief and easy language which will help to study and understand better by saving a lot of time when we get back to revise or to make someone else understand.

How to Analyze a Case:

Case Analysis is not a very difficult process as it may sound. With constant practice and positivity one can excel in Case Analysis. Let us understand this process stepwise as below:-

  • Study The Facts. The foremost step in case analysis is to study the facts of the case. If a person is not familiar with the facts of the case he/she cannot proceed further with the other information because the facts and background of the case act as a base of the whole case and the arguments thus raised.
  • Identify and Locate the Parties. The second step is to identify that who is against whom. It is often denoted as X vs. Y. At times there can be multiple appeals and case filed by the same parties and the places of Petitioner and Respondent might interchange. While identifying the parties one must also focus on the citation provided, as the citation plays a very significant role.
  • Find out the Legal Issues Associated with the Facts: What’s the story we are dealing here with? Why are these parties against each other? These are some questions that have to be found out. The very next step is to analyze what are the legal issues raised through the given facts. By studying and working on the legal issues in the given set of facts Researcher will now have a very clear image about what all the given case is talking about and that’s where most of the work is done.
  • Analyze the Arguments raised by the parties. After you are acquainted with the facts and legal issues it becomes easier to examine the arguments and sub Issues raised by the either parties. The analysis of arguments will not be a cakewalk and you might be required to read it multiple times to understand it. One can jot down the important keywords and clauses to learn it better.
  • The Judgment. This is the most important and comparatively difficult to approach as the language used might look difficult to few. But constant practice and reading one can ace this section too. The Judgment holds the most important place as the whole case revolves around it and it’s the only passage that concludes the whole argument and case. Furthermore the Judgment and Arguments will include precedents, and one should focus on that too. From the point of analysis one should focus upon the legal terms, sections, articles mentioned in it as not only it will help in decoding the judgment but it also will improve our knowledge along the way of reading.

After going through the case study multiple times and with the required sections and articles used, we are now quite aware about what all is going on in the given case and now we even can prepare a brief case study which will help others in understanding.

My Take:

Well, in my opinion as a law student case analysis is highly beneficial for someone like us because it helps us in various means. Firstly, it improves our reading and Researching skills which is one of the prominent and in demand skills in future. Alongside researching skills our knowledge in the field of law increases too, as we get to know about the sections and articles of various statutes with their practical application in the court of law. I strongly feel that we should start reading and Analyzing case studies as it will make us a better Researcher and interpreter. Also Case Analysis also makes it easy for others to look into a judgment who may refrain themselves from reading long Judgments.

I have also noticed that in a case analysis there’s always a reflection of the author’s own views and thought processes, in the way that whether the said judgment was correct or justified or not, or whether the given said case is reasonable or any other personal views. There’s always an essence of one’s personal views in a case analysis apart from the said facts discussed above. It totally depends on the reader and its conscience, how they interpret it.

About the author –

This case analysis has been written by Animesh Raizada, a second year law student at JEMTEC School of Law, (Greater Noida).

 

 

 

 

 

Categories
Article blog

AN INDUSTRY THAT FEEDS YOU IS AN INDUSTRY WORTH FIGHTING FOR

We as human beings have faced a lot since the world got locked down in 2020. We saw:

  • The bushfires in Australia, which started the year in January – March 2020,
  • Floods in Indonesia,
  • Volcano eruption in Philippines,
  • Earthquakes in Turkey, China, Iran, Russia, the Philippines, and India.
  • Locust swarms in East Africa, parts of India, and Asia. Cyclone Amphan in India and Bangladesh And these are all-natural disasters that costed god knows how many lives and money. And the man-made disasters like the Russian oil tanker that burst in October or the one that burst in December 2020 in UAE are not even in the counting.

One good thing that did come out of 2020 was that trump was no longer in power.

Let’s get closer to home now.

The world is witnessing the biggest protest in the history of mankind as we speak today which started roughly in October 2020.
The farmer’s protest in India
The farmer’s bill, which was passed, the facts remain that the two bills had already cleared the lower house – the Lok Sabha. When they were introduced in the Rajya Sabha, there was a ruckus and finally the Bill was passed through a voice vote. We should not forget how the audio was muted on our television channels and the aye’s were ignored and nay’s were preferred Distortion by the media!

So the bills are:

  • The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020:

According to this Bill, the farmers can sell their produce outside the Agricultural Produce Market Committee (APMC) regulated markets. These markets are government-controlled marketing yards or mandis. So, the farmers tend to have more choice as to whom they can sell their products to. As per, economic expert Gurcharan Das, the government’s logic, is that the Agricultural Produce Marketing Committee (APMC) is an obsolete institution from an age of scarcity, meant to protect the farmer, but has now become his oppressor, a monopoly cartel fixing low prices for the farmers’ produce, forcing distress sales.

  • The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020:

This Bill makes provisions for the setting up of a framework for contract farming. Contract farming can be defined as an agreement between farmers and processing and/or marketing firms for the production and supply of agricultural products forwarding agreements, frequently at predetermined prices. Already seen what contract farming has done in the past to the farmers in Maharashtra. They have committed suicides in mass numbers as contract farming has led to hoarding of produce, asking for low produce prices, and cancellation of contracts by these big corporate companies. The climate and soil, not being conducive, also leads to the many reasons for not meeting the deadlines and as a result, the entire burden of the crop comes on the poor farmer’s shoulders. And other amenities are not even being counted here as the water flow, the electricity, compensation for unseasonal rains are not even being counted.

According to PRS India, a “Standing Committee on Agriculture (2018-19)” observed the APMC laws needed reforms as cartelization had begun to crystallise due to a limited number of traders in APMC mandis. Hence, the following law was passed in September 2020.

  • The Essential Commodities (Amendment) Bill 2020:
  • The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 allows intrastate and interstate trade of farmers’ produce beyond the physical premises of APMC markets. State governments are prohibited from levying any market fee, cess, or levy outside APMC areas.
    How will the Bills benefit the farmers?
    The ideology that has been put before us is, that the laws:-
  • Defeat the monopoly cartel at the APMC mandi and sell the produce anywhere to anyone
  • Will Bypass the Essential Commodities Act and
  • The farmers will be free to store inventory which was constrained so far by stocking limits of ESCA.
  • The farmers will be free to make contracts and transfer risk to businessmen in deals made over a crop even before yield is made or met, which as we have already observed in the case Maharashtra has worked against the favour of the farmers.

Why are the farmers upset?

The farmers of Uttar Pradesh, Punjab, and Haryana are angry with the provisions of these Bills as they are afraid that these Bills may be the platform that the government (at the Centre) is setting up for the replacement or scrapping of the otherwise robust support system prevalent in their states for the purchase of their crops.

23 crops have MSPs, though the governments, primarily buy only rice and wheat. Farmers fear the two recent bills as they feel these agriculture reform processes will kill the government procurement process as well as the MSP.

Rice is a water-intensive crop and farmers from areas with water shortage to grow it as there is an MSP assured in the end. Continued adoption of the rice-wheat cropping system in North-Western plains of Punjab, Haryana, and West Uttar Pradesh has resulted in depletion of groundwater and deterioration of soil quality, posing a serious threat to its sustainability,” says a government study.

Also, these Farm Bills are encouraging farmers to strike deals with large corporates, and farmers do not trust corporates.

The farmers have wanted the government to pass new legislation that makes MSP a legal right. The Punjab assembly has already passed such a law, but it is still to get the assent of the president. Even if the assent does come, it remains unclear how the law will be implemented.

This demand for such legislation is not new and dates back to 2018 when farmer agitations had spread far and wide across the country – the Kisan long march to Mumbai, protest march to parliament in Delhi.
In August 2018, for the first time, a law to this effect was brought into parliament as a private member Bill by Raju Shetty, who was then a member of parliament.
This bill was not discussed in the parliament.

After 2018, farmer protests died down and have resurfaced now. The demand to make MSP a legal right is once again on the table and farmer leaders have said that the protests will not end until this demand is met.
The Centre has said that it will provide a “written assurance” that the existing procurement mechanism will continue.
Till now, no written assurance has come into being by the government

What happened on 26 January 2021?

Facts:-
A peaceful march by the farmers was planned whereby the whole nation was showering them with love and affection and support as they walked by on the streets of the capital of the nation.
Then why is it that the farmers who are civilians, were tear-gassed at Nangloi? Barricades were broken, protestors were lathi-charged and tear-gassed, and a farmer had died.
The fact remains that there were no acts of vandalism by lakhs and lakhs of farmers. No harm was caused to any historical monuments. There was no destruction caused by them, neither did they set fire to the properties nor did they loot and riot. They rode their tractors peacefully.
But behold, we find out that a mob that went to the red fort was instigated. Perhaps they were outsiders. Perhaps they were instigated and led by someone who is a part of the reigning government.
Also, another fact that comes into play is why, the red fort, which has been properly barricaded and has security, on this particular day is not guarded that too on republic day! (Read suspicion).

Read the following articles bestowed on every single citizen of India by the constitution of India, which are mentioned below, and then read them again:

Article 14 – ‘Protection of life and liberty and equality before the law – No person shall be deprived of his life or liberty except according to the procedure established by law, nor shall any person be denied equality before the law or the equal protection of the law within the territory of India.’

Article 19 – ‘Protection of certain rights regarding freedom of speech etc.’
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practice any profession, or to carry on any occupation, trade, or business

There are two young girls aged 21 & 22 in today’s date held in police custody, Nodeep Kaur and Disha Ravi who are activists remotely associated with the cause. One was a laborer affected by the crisis of COVID-19 who had to take up a job in a factory to feed her family. She raised her voice because she wasn’t getting paid and she mentioned how the essential commodities act would affect the labor laws. The other was an environmental activist who happened to post on social media platforms about the farmer’s toolkit.

How then? How is India, the world’s largest democracy?

What are we doing as citizens of India?

We have faced numerous calamities, wars, natural disasters as a human race and we must all come together in supporting our fellow citizens who are asking to be heard so that they can continue to live a life of dignity.

We have to come together to make sure that our feeders don’t turn into beggars. And like they say, an industry that feeds you is an industry worth fighting for.

Coming together is a beginning, keeping together is progress. Working together is a success.
– Henry Ford

References:-
www.Thewire.in
www.Constitutionofindia.com
www.Timesofindia.com
www.theprint.in

About the author –
This article has been written by Adv. Irika G. Jyoti, Completed LL.B from National Law University, Jodhpur.

 

 

 

Categories
Legal

DATA PROTECTION: HOW SAFE ARE WE?

DATA PROTECTION: HOW SAFE ARE WE?

Ever realized that when you’ve purchased a new product from a high profile shop at a mall, or online, or from an agent, esp. Credit cards, etc., soon after few days you start getting infructuous calls, or suddenly your inbox is full of spams. Irritating … Yes! But have you realized that you’ve nobody else to blame but yourself… Why? It’s because you’ve knowingly or unknowingly given your data to the world, by filling up the simple form given to you by the shop or agent or online survey, which has been collected in the garb of getting data to facilitate the companies to obtain data for undertaking Analytics employing Machine Learning utilizing surveillance and Data Mining. You’ve become a victim of a data breach.

Data Breach

“A data breach is a security incident in which information is accessed without authorization. Data breaches can hurt businesses and consumers in a variety of ways. They are a costly expense that can damage lives and reputations and take time to repair.”

Stories of massive data breaches are getting propagated, quite frequently these days. But this shouldn’t be surprising at all, as technology progresses, more and more of our information would be accessible in the digital world. As a result, cyber-burglary would be increasingly common and a costly affair[i].

The Electronic Frontier Foundation (EFF)[ii] demonstrated that anyone could get access to information saved to a Facebook profile, even if the information was not intended to be made public[iii]. Now how does that happen?

  • A “connection” is created when a user clicks a “Like” button for any product or service, either on Facebook itself or an external social media site. The site starts treating such relationships as ‘public information’ and the user’s identity was displayed on the Social Media page of the product or service, breaching privacy without the consent of the user.
  • Ever wondered how your Facebook page displayed the products you either searched or purchased from the Amazon website. This is termed “Instant Personalization”[iv].The EFF noted that “For users that have not opted out, Instant Personalization is instant data leakage.

As soon as you visit the sites in the pilot program, the sites can access your name, your picture, your gender, your current location, your list of friends, all the Pages you have Liked everything Facebook classifies as public information, what we ignorantly feel as auto fill option available for our ease by the website, but ever realized how the data reached the website which we are accessing for the very first time. Now here it is not you, but your known, who come into the picture as even if one opts out of Instant Personalization, there is still data leakage through your friends who use Instant Personalization websites; their activities can give away information about you unless you block those applications individually.”[v]

 How does our data get compromised?

 Cybercrime has become a profitable industry for attackers and continues to grow. Hackers seek personally identifiable information to steal money, compromise identities, or sell over the dark web. Data breaches can occur for several reasons; listed below are the most potent ways that we lose our privacy to the World Wide Web:-

  • Organizational Data Breach[vi]: To do business, organizations often require our personal information so that they can work on their business model through data analytics. We trust that the organization follows its outlined security protocols to keep our private information, private. When that organization fails to deliver on its security measures, as has been seen in the recent onslaught of big-data and cloud-system security breaches, our personal information is subject to unauthorized access and theft. This is how Hackers have been spreading Ransom ware and targeting particular clients.
  • Free Wifi / Internet Access. We Indians are very fond of freebees be it discounted gifts or even free wifi. What we don’t realize is that there are no free lunches and we pay for all such freebees by compromising our privacy. Public or free wifi available at shops, restaurants, airports are the unsecured connections and most susceptible to cyber pilferage. We are quick to log in without realizing the security of the internet connection we’re about to use, leaving our door ajar, allowing access to ethical/ unethical hackers to your domain.
  • Exploiting System Vulnerabilities[vii]. The weakest point in our mode of cyber access is to work on pirated software, with free Antivirus and a free firewall. Out-of-date software or pirated software acts as a backdoor left open, allowing an attacker to sneak malware onto a computer and steal data. We could unintentionally download a virus or malware by simply visiting a compromised web page. A drive-by download will typically take advantage of a browser, application, or operating system that is out of date or has a security flaw.
  •  Responding to a Scam: Scams are designed to look, read and feel as authentic communication as possible. Email phishing, ‘robo’ calls and social engineering tactics like personality quizzes are just a few examples of the ever-growing scams, hackers and cybercriminals have developed to steal your data—right under your very Nose. We often (mistakenly) place our trust blindly into communication exhorts like email, phone, and social media because those are places we communicate with people and brands we do trust.

Data collation has become a part of parcel of the life we are living in the cyber world and one cannot feign ignorance by enacting an Ostrich who, when threatened puts its head into the sand thinking that it is hidden from its attacker. In India, Data security is at a very nascent stage as we are mostly computer illiterate and we think that by knowing how to operate a smart phone or a computer we know all about cyber security. Moreover, with the compulsory introduction of PAN Card, AADHAAR Card, and Aadhaar Enabled Biometric Attendance System (AEBAS); the Breach of Personal Data reached another level. Data Security has become a matter of concern the world over and stringent laws have been put into action by most of the countries.

Aadhaar Card: Privacy Issues

Ration Card is something which most of us would be synonymous with this was part of India’s Public Distribution System (PDS) which constituted 1% of the total GDP of the country, providing food to the poor via Fair Price Shops and other government schemes.[viii] However, the whole system was compromised and the process of obtaining and delivering these subsidies was riddled with fraud, the existence of black markets, and exhausting bureaucracy. To combat a plethora of these logistical issues, Aadhaar was created in 2009. It was developed as a tool to standardize the process of data collection and ease the dispersal of money from government schemes to the citizens of the country, especially the poor. Aadhaar is a 12-digit unique identity number that is issued to all Indian residents, and the process of obtaining the ‘Aadhaar Card’ involves the collection of citizens’ fingerprints, retina scans as well as face photos. 

Aadhaar’s importance cannot be understated as it contains the data of billions of people and the security of this data and the system itself is an incredibly important point of political contention. It is one of the biggest biometric databases on the planet with around 1.2 billion enrollments, covering around 89% of India’s population[ix].Complicating the issue is the fact that ever since its inception, Aadhaar has been plagued by a myriad of internal and legal problems, as well as major leaks and vulnerabilities in the overall security of the system, thus compromising on the personal data. The major concern being the Armed Forces who had to take a stand for being exempted from the AEBAS fearing loss of data to the adversary compromising their security and that of their families.

Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Aadhaar Act”)

 Due to the increased collection of citizen’s information by the government, concerns have been raised on their impact on citizens’ privacy. The road map for addressing these concerns was laid down by a Bench of nine Supreme Court judges in the judgment delivered on 26 September 2018 in Justice KS Puttaswamy and AnrVs. Union of India and Ors. held that the Right to Privacy is a fundamental right for all citizens. In their order, the judges also highlighted the need for a regulation to protect the privacy of data, especially in the age of ‘big data’, when the state, as well as non-state actors, have so much information about people[x].

 The apex court upheld the overall validity of the Aadhaar and the Aadhaar Act 2016 was held to be constitutional to the extent it allowed for Aadhaar number-based authentication for establishing the identity of an individual for receipt of a subsidy, benefit, or service given by the Central or State Government-funded from the Consolidated Fund of India. However, the Supreme Court disallowed the use of individual Aadhaar numbers by any private entities under the garb of Know Your Customer (KYC) concerning for any purpose pursuant to a contract, on the basis that it was contrary to the fundamental right to privacy. The Supreme Court also decreed on several laws, circulars, and directions, which required the mandatory linking of Aadhaar for receiving relevant services.[xi]

The Supreme Court upheld the need for a just, fair, and reasonable law which serves a legitimate state aim and is proportionate to the objective sought for establishing the right to privacy. The Supreme Court further clarified that the proportionality test includes the following four aspects[xii]:-

  • Legitimate goal – The measure restricting the right must have a legitimate goal.
  • Rational connection – It must be a suitable means of furthering the goal.
  • Necessity – There must not be any less but equally effective alternative.
  • Balancing – The measure must not have a disproportionate impact on the right holder.

The Supreme Court held that the Aadhaar Act, on the whole, as a law, serves a legitimate state aim and is proportionate, thereby being a reasonable exception to the right to privacy. The salient highlights are:-

  • Section 7 of the AadhaarAct – made the Aadhaar number mandatory for receiving subsidies, benefits, and services from the Government (for which expenditure was drawn from the Consolidated Fund of India) was therefore held to be valid.
  • Section 57 of the Aadhaar Act. Allowed Government entities, body corporates, and individuals to use the Aadhaar number as a means to identify any individual for any purpose, according to any law or contract. The Supreme Court laid down that the contract has to be ‘backed by law’:-
  • Firstly, the Supreme Court held that the phrase ‘any purpose’ is not proportionate, too wide, and susceptible to misuse.
  • Secondly, the possibility of collecting and using Aadhaar numbers for authentication according to a contract was disallowed since this may result in individuals being forced to give their consent in the form of a contract for an unjustified
  • Thirdly, private entities are not permitted to use Aadhaar numbers for authentication, based on a contract with the concerned individual, since it would enable commercial exploitation of an individual’s biometric and demographic information by private entities. This effectively prevents companies from using Aadhaar based e-KYC authentication of an individual’s identity, which was primarily how many companies complied with the relevant know your customer (KYC) requirements.
  • The Supreme Court opined that the validity of certain directions from different departments of the Government (brought in through laws or otherwise), which mandated the linking of Aadhaar numbers to benefit from certain services:-
  • Linking Aadhaar numbers to PAN was held to be valid, since it was based on law, serving a legitimate state interest, and was proportionate.
  • Linking Aadhaar numbers to bank account numbers was held not to be valid since it did not meet the proportionality test.
  • Linking Aadhaar numbers to mobile numbers was held not to be valid since it did not serve a legitimate state aim and was disproportionate in its encroachment on individual liberties.

Personal Data Protection Bill 2019

In July 2017, the Ministry of Electronics and Information Technology set up a committee to study issues related to data protection. The committee was chaired by retired Supreme Court judge Justice B.N. Srikrishna.[xiii] The committee submitted the draft Personal Data Protection Bill, 2018, July 2018.  After further deliberations, the Bill was approved by the cabinet ministry of India on 4 December 2019 as the Personal Data Protection Bill 2019 and tabled in the Lok Sabha on 11 December 2019.

The Essence of the Bill

Personal data under the Indian laws and rules are termed “personal information” and has been defined under the Rules as “any information that relates to a natural person, which either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person”. The PDP Bill proposes a similar definition but extends it to include any inference drawn from such data for profiling[xiv].

The Bill aims to[xv]:to provide for the protection of the privacy of individuals relating to their data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the fundamental rights of individuals whose personal data are processed, to create a framework for organisational and technical measures in the processing of data, laying down norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorized and harmful processing, and to establish a Data Protection Authority of India for the said purposes and matters connected therewith or incidental thereto.

However the critics viz Justice B. N. Srikrishna, the drafter of the original Bill, opined that the revised PDP Bill 2019 can turn India into an “Orwellian State” i.e. describing a situation, idea, or societal condition that George Orwell identified as being destructive to the welfare of a free and open society (Orwellian State is a term to denote draconian control of its people by a state as described in the novel ‘Nineteen Eighty Four’ by George Orwell)[xvi]

[i]https://us.norton.com/internetsecurity-privacy-data-breaches-what-you-need-to-know.html

[ii]EFF is an international non-profit digital rights group based in San Francisco, California determined to promote Internet civil liberties, identified two personal information aggregation techniques called “connections” and “instant personalization”.Source:-https://en.wikipedia.org/wiki/Electronic_Frontier_Foundation

[iii]https://en.wikipedia.org/wiki/Privacy_concerns_of_Facebook#cite_note-eff.org-1

[iv] Instant Personalisationwas a pilot program that shared Facebook account information with affiliated sites, such as sharing a user’s list of “liked” bands with a music website, so that when the user visits the site, their preferred music plays automatically

[v]ibid

[vi]https://www.semshred.com/personal-data-compromise/#:~:text=Email phishing%2C ‘robo’ calls,right from the horse’s mouth.

[vii]https://us.norton.com/internetsecurity-privacy-data-breaches-what-you-need-to-know.html

[viii]Vikas Bajaj, 2012, A Failed Food System in India Prompts an Intense Review, The New York Times

[ix]Aadhaar Now World’s Largest Biometric Database: 5 Facts from UIDAI CEO’s Presentation in Supreme Court You Must Know, The Financial Express, 2018.

[x]https://www.business-standard.com/article/economy-policy/right-to-privacy-sc-judgment-also-makes-case-for-regulating-data-storage-117083000191_1.html

[xi]https://www.mondaq.com/india/privacy-protection/744522/the-supreme-court39s-aadhaar-judgement-and-the-right-to-privacy#:~:text=At%20the%20end%20of%20September,the%20%22Aadhaar%20Act%22).

[xii]ibid

[xiii] “Personal Data Protection Bill 2018 draft submitted by Justice Srikrishna Committee: Here is what it says”. The Indian Express. 28 July 2018. Retrieved 4 December 2019.

[xiv]https://www.linklaters.com/en/insights/data-protected/data-protected—india

[xv] The Personal Data Protection Bill, 2019

[xvi]https://en.wikipedia.org/wiki/Personal_Data_Protection_Bill,_2019#cite_note-8

About author –
This article has been written by Adv. Pooja Kohli, BA, LLB, LLM, PGDFM, MBA(HR), Punjab & Haryana High Court, Chandigarh



 

 

 

 

 

 

 

 

 

Categories
know the law

Laws On Child Marriage In India

Child marriage can be defined as a marriage solemnized between two people where the female is below the age of 18 years, and the male is below the age of 21 years. Child marriages usually take place in rural areas where illiteracy and poverty are widespread.

Many factors affect child marriages such as ignorance, social customs and traditions, low level of education and considering women as a financial burden.

Child marriages have their repercussions such as health problems to women due to early age pregnancies, further deterioration in the status of women and a vicious cycle of gender inequality ensue.

General Law on child marriage

The law has failed to curb the prohibition of child marriages that are taking place across the religions, specifically Hindus in most cases. Many NGOs are fighting to eradicate the same and a movement is going on regarding the same. Even public interest litigations filed could not bring about any substantial difference. There is a need for sensitization in society regarding child marriage. Many attempts have been made to regulate child marriage even before the Independence of India and the commencement of the Indian constitution. Below mentioned are the general laws aimed at to regulate child marriage, though there has been no complete abolition of the same.

Child Marriage Restraint Act, 1929

This was the first of its kind legislation regulating the “child marriage” by prescribing the required age of marriage for both the parties to the marriage across India. This act aims to restrain the child marriage fixing the age of marriage for girls at 14 years and that of boys at 18 years but did not make the marriage void by itself. It only prescribed punishments for an adult male who married a minor and the parents who promoted such marriages. However, the punishment was very less and the fine was trivial. This act was amended in 1949 and 1978 to raise the age limit of male and female for marriage. However, this act largely remained a dead letter and failed to achieve its objectives.

Prohibition of Child Marriage Act, 2006

As a result of the ineffectiveness of Child Marriage Restraint Act, 1929; new legislation to replace it was enacted in the form of Prohibition of Child Marriage Act, 2006 however, this act was passed on January 10, 2007. The Act envisages preventing child marriages with enhanced punishments of rigorous imprisonment for two years and/or fine of INR 1lakh. It defines a child to mean a male below 21 years and female below 18 years. A minor is defined as a person who has not attained the age of majority as per the Majority Act. There are provisions for maintenance of the girl child. The husband is liable to pay the maintenance in case he is a major. In case the husband is a minor, his parents would be liable to pay the maintenance. The legal status of child marriage is voidable at the option of the parties. However, if the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void. The Act also provides for the appointment of a Child Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness

The Prohibition of Child Marriage Act, 2006, is aimed to:-

1. Punish the ones involved in the performance of child marriage, and
2. To provide a legal opportunity to both the spouses of child marriage to repudiate the marriage, by way of a decree of nullity. (Voidable & Void)

The present law is gender-neutral in providing the right to both the boy and the girl child of forced marriage. The Prohibition of Child Marriage Act, 2006, may be viewed as: –

1. General and secular legislation (which applies to all the citizens of India).

2. Penal legislation.

3. Social and progressive legislation.

Matrimonial legislation, only to regulate “child marriage”, having a uniform application (Status of child marriage).

Child Marriage In Hindu Marriage Act, 1955

Section 5 (iii) of this act states that the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of the marriage.

Under the Hindu Marriage Act, only the parties to child marriage are punishable even if they did not consent to the union. There are no provisions for punishing the parents or people who solemnised the marriage. A girl can get the marriage annulled only if she was married off before attaining the age of 15 and she challenges the marriage before turning 18. There is no express provision to prohibit child marriage per se.

Child Marriage under the Hindu Marriage Act, 1955 is neither void nor voidable. The silence on the part of the legislature in Section 11 & 12 and express rule in the form of provision of Section 13 (2) (iv), renders it valid. As a result of silence on the part of the legislature in Section 5, 11 &12 and express provision under Section 18 of Hindu Marriage Act, child marriage is valid as seen in the case of Manish Singh vs. the State of NCT

Neetu Singh vS the State & Ors. the High Court of Delhi held that the marriage of minor is neither void nor voidable, but is punishable.
Under the Hindu Marriage Act, none of the parties has the option to repudiate the child marriage by way of a decree of nullity. The High Court of Rajasthan in Sushila Gothalal vs. State of Rajasthan directed that State should take necessary steps to stop the menace of child marriage by punishing all involved in such marriages. As a result of which, the Chief Minister of Rajasthan had made a special appeal to all its people in the State to prevent these child marriages.

Nevertheless, a female child has been given right to repudiate the marriage under Section 13 (2) (4), by way of divorce. In Roop Narayan Verma vs. Union of India, the High Court upheld the constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by terming it as the exercise of power by the legislature under Article 15 (3) of the Indian Constitution.

In the wake of silence on the part of the legislature under Section 11 and 12 of the Hindu Marriage Act, 1955 and express provisions in the same, the status of child marriage in Hindu Marriage Act, 1955 appears to be uncertain. There is a possibility of two arguments in this context:

1. That the child marriage in Hindu Marriage Act, 1955 is not valid, refer Section 5, or
2. That the child marriage in HMA is neither void nor voidable but renders valid.

It would be further proper to refer to some judicial pronouncements, to know the judicial position:

In P. Venkataramana vs. State, the Andhra Pradesh high court noted that such marriage in Hindu Marriage Act, 1955 is not void, by observing that had the lawmakers intended that they would not have given to a wife the right to repudiate her marriage solemnized before the attainment of the age of 15 years. Moreover, the high court observed that neither under Section 11 nor under Section 12 of the Hindu Marriage Act, 1955 there is any mention of marriage in contravention of Section 5 (iii).

Supreme Court in Lila Gupta vs. Lakshmi Narain, laid down that though Section 5 (iii) of the Hindu Marriage Act prescribes a minimum age of marriage, a breach of this condition does not render the marriage void. The court, in this case, observed that it would be hazardous for marriage laws to treat a marriage in breach of a certain condition as void even though the law does not expressly provide for it. This case was concerning the rights of a widow to inherit her deceased husband’s property against the claims of her brother-in-law and nephew who had challenged the validity of her marriage.

The same approach was taken by the Karnataka High Court in V. Mallikarjunaiah vs H.C. Gowramma. In this case, the husband had sought a declaration from the trial court that his marriage was void since he had not completed the age of 21 at the time of marriage. According to the court, the law does seek to discourage marriage of underage boys and girls but not to the extent of making the marriage void or voidable.

Andhra Pradesh High Court in Kokkula Suresh vs the State of AP held that such marriage is neither void nor voidable but valid. Court also recognizes the husband as the guardian of the girl child (female spouse) and he was entitled to her custody.

However, Madras High Court in T. Siva Kumar vs Inspector of Town Police Station has taken a completely different outlook. It was held that even though a marriage contracted by a person with a female of fewer than 18 years is voidable and subsists until it is annulled by the Court, the marriage though not invalid but is also not a valid marriage in the strict sense and the male does not have all the rights which would otherwise emanate from a marriage which is valid in a strict sense.

Marriage of a Minor Muslim as per Muslim Personal Law

Muslim law is not codified in India. Therefore, its provisions are based on the interpretation of the Quran by scholars. Under Muslim law, there is no bar for child marriage. A guardian has a right to get a child marriage. However, the couple has ‘option of puberty’ where they can repudiate the marriage after attaining puberty. However, they must do so before turning 18 and only if the marriage has not been consummated. The age of marriage under Muslim law is the age of puberty which is 15 years. However, marriage before the age of 7 even if contracted by a lawful guardian, is void ab initio.

The option of puberty and Repudiation of marriage

“Option of puberty” is a right which is given to both the parties of the Muslim marriage to repudiate i.e. to cancel the marriage, if solemnized during minority, with the consent of theirs. For marriage in Muslim Personal Law. They can exercise this option on attaining the age of 15, as this is the age where it is presumed that parties are major so far as marriage is concerned. As far as the exercise of option of repudiation is concerned, it is just that the child marriage (marriage solemnized during minority) must be valid (must have been done with the consent of legal guardians).

Following are the ingredients which are to be established to exercise this right:-

1. Marriage during minority with the consent of father or guardians for the said marriage, and
2. Attainment of Puberty (Majority i.e. 15).

In Behram Khan vs. Akthar Begum, it was held that ‘Consummation of marriage before the age of puberty does not deprive the wife of her option. But the consummation of marriage after attaining puberty disables the person from exercising the right of repudiation/option of puberty.

Some of the judicial pronouncements for the age of puberty
Privy Council in Nawab Sadiq Ali Khan vs. Jaya Kishori, says that the majority in the case of a girl child is attained at the age of 9.

Md. Idris vs. State of Bihar and Ors., Patna High Court ruled that as per the interpretation of Muslim law, by Mulla, in Mulla’s Text on Principles of Muslim Law, the age for a girl to attain puberty is 15 years of age.

Mis. Seema Begum vs. the State of Karnataka. In this case, the declaration was sought by a Muslim girl, who was 16 years of age when a petition was filed, that she is not governed by the provisions of Prohibition of Child Marriage Act, 2006 and in her case, it is the Muslim personal law, which has allowed her to marry on 15. The petition was rejected and no such declaration was issued in her case.

Karnataka High Court, accordingly held:

1. That a Muslim girl is not free to marry on her own before the attainment of the age of majority or the required age of marriage i.e. 18 years of age as per the definition of “child” under section 2 (a) of Prohibition of Child Marriage Act, 2006.
2. That the statutory law (Prohibition of Child Marriage Act, 2006) will prevail over the uncodified personal law (Muslim personal law).
3. That Prohibition of Child Marriage Act, 2006 applies to all the Indian citizens uniformly irrespective of their religion.
4. That despite Delhi High court ruling that a Muslim girl can marry before 18 years of age.

Therefore, child marriage of two Muslims could be terminated in the following way:

1. Avoidance of Marriage: Option of Puberty (followed by judicial order).
2. Avoidance of Marriage under Prohibition of Child Marriage Act: Decree of Nullity.

Dissolution of marriage: Divorce & Talaq

NHRC Guidelines on Child Marriage

In their report, they said that to prevent early marriage is to make education free and compulsory for all children up to the age of 18 years. Accordingly, the Right to Education Act must be amended so that it is applicable up to class 14 instead of class 8 right now.”

The report, ‘India child marriage and teenage pregnancy’, compiled by NCPCR and the NGO Young Lives India, shows that in almost all states, the completion rate of secondary schooling is significantly higher among unmarried girls in the 15-19 years’ age group. The report shows that in the 15-19 age group of married girls, 30 per cent have never received any education, 21.9 per cent have got primary education, 10 per cent have secondary schooling while only 2.4 per cent have higher education.

Among states, in Bihar, which has a child marriage prevalence far above the national average, the completion rate of secondary education among girls who married before 18 years is 51 per cent, followed by Delhi and Rajasthan at 54 per cent and 57 per cent, respectively. “There is a strong correlation between the educational attainment of girls and early child marriage. There is also a strong association between parents’ low aspirations for a child’s education and teenage marriage,” said Renu Singh from Young Lives. The data also showed that 32 per cent of married girls aged 13 to 19 years had their first child when they were still in their teenage. NCPCR Chairperson Stuti Kacker cited the example of Karnataka, which has made child marriage null and void.

The Prohibition of Child Marriage Act 2006 doesn’t invalidate child marriage but only gives the contracting parties the option of annulling it within two years of becoming an adult or through a guardian in case they are still minors. The WCD ministry’s proposal, seeking to make child marriage ‘void ab initio’, is pending approval of the Union cabinet for a while now.

About the author –
This article has been written by Mohd Monish, 2nd year law student at Maharaja Agrasen Institute of Management Studies, New Delhi.

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Mediation in India

Mediation is a form of Alternate Dispute Resolution (ADR), where a neutral third party assists disputing parties in resolving the matter . Mediation encourages the parties to communicate and negotiate. Mediation is recognized in India under section 89 of Civil Procedure Code, 1908.

1. Need and Use of Mediation in India

As the global population is rising, so is the number of cases in courts of law. Pendency of cases cannot be dealt with unless there are some radical changes in the common law system. Resolving the disputes, through Courts, though something’s unavoidable does not provide the most satisfactory solution in all cases. Arbitration, Conciliation, Judicial Settlement, including settlement through Lok Adalat and Mediation, are accepted modes of Alternative Dispute Resolution (ADR).

2. Availability of Judges

Data shows that nearly 48,418 civil and 11,050 criminal cases are pending in the Supreme Court and whereas in High Court’s 31,16,492 civil and 10,37,465 criminal cases are pending”

It is an uncontroversial fact that our country is suffering from the acute problem of population explosion. This in turn has given rise to diverse problems including those of disputes, differences, conflicts. Even our judiciary is suffering from a population problem i.e. docket explosion of pending cases. Reports also indicate that there are over 27 million cases that are still pending in Indian Courts and over Six million have been pending for more than 5years.

In managing these Courts there are only 16000 Courts and insufficient Judges for handling these disputes. The Ministry of Law and Justice has released data on the latest pendency of cases in the Supreme Court and the High Courts. The data shows that nearly 48,418 civil and 11,050 criminal cases are pending in the Supreme Court and whereas in High Court’s 31,16,492 civil and 10,37,465 criminal cases are pending.

Dispute resolution is an indispensable process for making social life peaceful. It tries to resolve and check conflicts, which enable persons and groups to maintain co-operation. Alternative Dispute Resolution is a term used to describe several different modes of resolving legal disputes.

The goal of ADR is enshrined in the Indian constitution’s preamble itself, which enjoin the state to secure to all the citizens of India, Justice- Social, Economic, and Political- liberty, equality, and fraternity.

3. Future Scope of Commercial Mediation in India

The advent of new legislations and broadening the scope of mediation to include commercial matters has given rise to commercial mediation. Commercial mediation can be defined as a mediation that centers around commercial disputes, which includes but is not limited to, commercial disputes as defined in Section 2(c) of The Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act, 2015 as well any other disputes of a monetary nature.

Various laws are currently in existence in the Indian jurisprudence in which special emphasis is given to mediation. The first known legislative recognition given to mediation was in the Industrial Disputes Act, 1947. Thereafter, Section 89 of the Code of Civil Procedure, 1908 can be credited with giving legitimacy to ADR mechanisms in India. Recently, the Commercial Courts, Commercial Division, And Commercial Appellate Division Of High Courts (Amendment) Act, 2018 have mandated pre-institution mediation for any commercial disputes, as has been given in the legislation, which is a huge step in terms of furthering the scope for commercial mediation in India.

However, numerous issues and challenges are awaiting the implementation of this landmark step. No legislation has, as of yet, been drafted to regulate the mediation culture in India. Also, no agency has been charged with supervising that the mandatory pre-institution mediation is enforced correctly. Various steps are needed to efficiently implement mandatory pre-institution mediation as well as to strengthen the pre-existing mediation culture in India. It is in this light that the authors wish to argue that even though the importance of mandatory pre- institution mediation cannot be stressed enough yet it will only become a success with the enactment of proper legislation and having the proper infrastructure in place for large-scale mediation.

The need for commercial mediation arises not just from a huge pendency of cases but also from the economic effects which commercial disputes can have on the economy of India. Commercial disputes are almost always monetary which can destabilize the market if they are stretched out for too long. Hence, it becomes even more imperative to fast-track commercial cases through mediation. Furthermore, if the commercial disputes are solved quickly and easily, then India’s Ease of Doing Business Rankings will also improve which can also have a huge impact on the investments which are pouring into India.

Presently, the majority of the High Courts in India have established their Mediation and Conciliation Centres to promote mediation as an alternative to litigation. Bangalore Mediation Centre (BMC) is one of the successful mediation centers of India which has resolved 31,441 disputes from 2011 to 2015 and on average, the mediators at BMC receive more than 1000 disputes annually, the highest among all the mediation centers. Many mediation centers of different High Courts are way behind BMC in promoting mediation and haven’t taken any substantial steps to implement MCPC recommendations. The BMC receives the highest number of cases per mediator as compared to Delhi Mediation Centre and Allahabad Mediation Centre, with an increase each year. In 2015 the BMC had 134 cases per mediator.

Other than court-referred mediation, there are other modes of mediation too such as private mediation, pre-litigation mediation. These types of mediation have also proved to be efficient in resolving disputes. Private Mediation is one of the fastest, cost-effective, and business-friendly methods to solve the commercial dispute.

Reference:
1. Parul Sharma, Data-on-disposal-and-pendency-of-cases-in-supreme-Court-and-highCourts-with-reasons-for-
mounting-pendency-of-cases, ITATONLINE

About the author –
This article has been written by Henika Vanjani, 5th year B.A.LL.B student at Gls Law College, Ahmedabad.

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Legal

MAINTENANCE UNDER MUSLIM LAW

Under Muslim law, a husband is obliged to maintain his wife and family, and the term maintenance signifies the amount he is liable to pay for the same. The term used for maintenance under Muslim Law is called nafaqa.

What all is covered under maintenance

1. Food
2. Clothing
3. Residence
4. Education
5. Medical Treatment
6. Wedding Expenses ( Unmarried daughter )

People Entitled To Maintenance Under Muslim Law

1. Wife
2. Children
3. Parents and Grandparents
4. Other Relation

Maintenance of Wife

Maintence to wife can be divided under 4 parts

1. As obligation of marriage
2. On basis of a pre- nuptial agreement
3. under section 125 CrPC
4. Under muslim women ( protection of right on divorce ) Act 1986

AS Obligation Of Marriage

The husbands obligation to maintain his wife exists so long as the wife remains faithful to him and obrys all his reasonable orders.

A wife can claim maintenance even if she disobeys her husband, if:

1. The husband keeps a concubine
2. The husband is guilty of committing cruelty toward his wife
3. The marriage cannot be consummated owing to his illness malformation
his husband from her without her prior permission or the husband has
still not attained the age of puberty.

On basis of a pre- nuptial agreement

1. If wife has made condition before the contract of marriage, that in so and so conditions she would be entitled to live separately and can claim maintenance against husband.
2. The condition could be that the husband will not ill- trear her, or take a second wife or keep a concubine
3. The wife is also entitled to a special allowance called Kharcha- i – pandan if it is stipulated in pre-nuptial agreement.

A Husbands liability to provide maintenance to wife who is divorced is only limited to iddat period.

Section 125 – Cr.P.C

Judicial magistrate first class can order a person to make monthly allowance for the maintenance of the following if court gets proof of neglect of the person wife sufficient means who is refusing to maintain:

1. Wife unable to maintain herself
2. Legitimate or illegitimate minor child ( married and unmarried both) to maintain itself .
3. Father or mother , unable to maintain himself or herself

Mohd. Ahmed khan v. Shah Banu Begum (1985)

In this case the supreme court delivered a judgement saying that A women has a right to claim maintenance under Section 125 of Cr.P.C as the code is a criminal law and not a civil law .
According to supreme court there was no conflict between Section 125 Cr.P.C and muslim personal law because 125 Applies to all regardless of caste creed or religion and it is criminal in nature unlike muslim personal law which is civil.

The Muslim Women ( Protection of Right on Divorce Act, 1986

1. Parliament for its vote bank politics gave up to the protest and enacted this law diluting the Shahh bano judgement of supreme court.
2. This act limited the liability of husband to pay the maintenance till the iddat period only (which is what is mentioned the muslim personal law)
3. After the iddat period if the woman is unable to support herself her relatives which would have inherited her her property would maintain her and if she has no such relatives the waqf board will pay for the maintenance.

Daniel Latifi V. Union Of India ( 2001)

1. Court said that Muslim husband’s liability under this act is not limited to iddat period . he has to make arrangement within the period of iddat for her wife’s maintenance .
2. So the maintenance would also account for after the iddat period but the husband must arrange it before the end of iddat .
3. But the court also held the muslim women ( protection of right on divorce) Act, 1986 as constitutional.

About the author –
This article has been written by Noor Fatima, 3rd year law student at City Law College, Barabanki.

 

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RIGHTS OF THE ACCUSED PERSON IN INDIA

Innocent until proven guilty

India is a democratic country where every human being is entitled to some basic rights which they inherent with their birth such as the right to freedom, right to live, etc. In India we have 6 fundamental rights guaranteed by part III of the constitution also have many human rights. Both fundamental rights and human rights have a common goal of ensuring a dignified life for every individual. Dignified life includes the right to freedom, liberty, equality, etc. These rights are also available to the accused person and no one has the right to deny it, however, certain exceptions are there. India follows the principle of natural justice which says that every person should receive a fair and unbiased hearing before any decision is made that will affect them negatively. Three requirements of natural justice should be met in every case; adequate notice, fair hearing, and no bias.

There are certain rights available to the accused person in India under Constitutional Law and Criminal Law.

Under Constitutional law:

Article 14 of the constitutional law provides the right to equality which includes the right to get a fair representation in criminal procedures. Our constitution believes in the theory of “Let Hundreds Go Unpunished, But Never Punish An Innocent Person”.
Article 20(1) of the constitutional law says that “no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.
Article 21 of the constitutional law talks about the rights to life and liberty that is why the accused are given human treatment in jail or police custody.
Articles 22 says that (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice.(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. However, this right is not available to the alien.

Thus, these rights under constitutional law are available to every person and cannot be changed or altered.

Under Criminal Law:

Right to know the grounds of arrest and of right to bail: Section 50(1) of Cr.P.C. says that “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest”. Sec 50(2) says that “ Where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”
Right to be taken before a magistrate: if a person is arrested with a warrant or even without has to be produced before a judicial officer within 24 hours without any delay. Sec 56 and 76 of the code says that an accused has to be produced before a magistrate within 24 hours of arrest.
Right to free legal aid: Every indigent accused has a right to free legal aid and the judicial officers and court must inform the accused about this right.
Right to be examined by a medical officer:Section 53 of the code talks about this right. If the arrested person request so, a police officer not below the rank of sub-inspector can permit the same but it should be done by a registered medical practitioner.
Right to be defended by a lawyer: Section 303 of the code gives rights to every accused to get a lawyer to be defended.
Right to be present during the trial: The accused person has the right to be present during his trial.
Right to protection and privacy: The privacy of every individual should be protected and mere presumption of offense does not permit the police officials to violate the right to privacy of an accused person.
Right to appeal: The accused person has a right to appeal against his conviction in the higher court.

All these rights are given to the accused person to protect their fundamental rights and human rights.

About the author –
This blog is authored by Shalini Bhatt, second year law student at Chanakya National Law University, Patna.

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Legal

All you need to know about Alternative Dispute Resolution (ADR)

INTRODUCTION

Alternate dispute resolution has been a rising dispute resolution mechanism and is considered quicker as well as much more effective and satisfactory for both the parties than the traditional dispute resolution mechanism i.e. Proceedings in a court. ADR deals with resolving the issues and negotiating between the parties to reach an amicable settlement rather than a verdict. Settlement is the way by which a win-win situation can be achieved between both the parties and both parties gain something rather than nothing.

In matrimonial disputes regarding property, child custody or even in disputes causing divorce, the alternative methods of ADR have proven to be very effective. The following article briefly discusses the various alternative methods to resolve matrimonial disputes other than the traditional judicial mechanism. It will explore the areas of counselling, conciliation, mediation and arbitration and their relevance in any matrimonial dispute. Alternate methods to resolve matrimonial disputes are cheaper, quicker and more efficient than traditional dispute resolution methods.

MATRIMONIAL DISPUTES AND NEED OF ALTERNATIVE METHODS TO RESOLVE THEM

Matrimonial disputes are not just the concern of a family, they are the concern of the whole country because, the termination of a marriage can be a traumatic and emotionally devastating experience for the spouses as well as the other family members involved which can have social, psychological, emotional and even economic repercussions. When there will be more marital conflicts and when court proceeding is determined to find a guilty party and the advocate’s getting under your skin will result in making the dispute much more bitter than it was previously before the institution of the case. Eventually, lead to the emotional breakdown of the person involved and that person will not be a good human resource to the country. It will also affect the happiness of the person and ultimately affect the happiness index of the country at large. Hence “the divorce law in many countries are heading toward a no-fault divorce which dispenses the requirements of an allegation, counter-allegations or any proof of matrimonial guilty.”[1]

As it is also mentioned by Lord Hailsham, “though the law could not alter the facts of life, it need not unnecessarily exaggerate the hardships inevitably involved. There seems a little doubt that the present law is guilty of just that.”[2] This clearly means that marital disputes are not like other disputes as it contains emotional and sensitive issues and hence is sensitive to deal with, therefore in such situations law should be helping out to resolve the matter between the spouses rather than convicting a party guilty. The traditional judicial mechanism used to aim that either one party is convicted of matrimonial guilt and the other receiving the matrimonial reward. However, the alternative methods which are arising in present times aim towards not only resolving the conflict but also creating an emotional balance post the divorce for both the parties. Sometimes these alternative methods are so effective that they help the spouses in resolving the issues and getting away from the idea of divorce by counselling or conciliation’s. Sometimes matters such as after divorce conflicts regarding alimony, child custody, matrimonial property etc can be very time consuming and will increase the bitterness in the already bitter relations of both the party if gone with the traditional judicial proceedings, however, if party’s approach for dispute resolution mechanisms such as mediation, such conflicts can be resolved quickly and the approach will be more sensitive looking at the nature of the conflict. For similar reasons, even the judicial approach is transforming and new statutory provisions are passed to promote such alternative methods to resolve matrimonial disputes. However, matters pertaining to domestic violence or any criminal action in marriage cannot be resolved by such alternative methods.

COUNSELLING/ CONCILIATION

Counselling is a process to help both the spouse to resolve their differences or discuss the details of their separations and reach some amicable settlements. It is more like negotiation, the main aim of counselling is to resolve the issues and settle the matter, and conciliation, on the other hand, aims not only to resolve the issues but also to keep the marriage intact, i.e. to provide counselling and resolving the matter in a way that the spouses decide to resolve their issues and not go for divorce. There have been changes in the concept of conciliation as well, earlier it was believed that if a couple decides to stay together as husband and wife after the reconciliation process, only then is the conciliation successful and if they decide to divorce then the conciliation is failed. However, nowadays it is aimed that not only should the couple decide to stay together but also be emotionally reconnected so as to live a happy marriage after the reconciliation process and only then we can say that the conciliation was successful. For that, there should be frequent counselling as it can help, and also if a couple decides to divorce then effective counselling will be conducted to prepare both the spouses for the post-divorce life which should be free of bitterness, guilt or failure which accompany the marriage[3].

MEDIATION AND ARBITRATION

Mediation is another dispute resolution mechanism and has proven effective in matrimonial disputes. It is considered as a client-driven process and it contains a neutral third party as the mediator. The mediator is there only to facilitate the mediation process, as “the mediator tries to help the parties to reconcile their differences in an equitable and mutually acceptable manner”[4] A good mediator tends not to threat, or use false promises in any way to apprehend the party just to reconcile the matter. A good mediator acts as a live spectator and only facilitates the whole process without any active participation in making any decisions for any of the parties. It is up to the party’s to decide for themselves on advice given by the mediator. The mediator should be unbiased and give the best plausible situation advice to both the party’s for settlement in a mediation process but never should the mediator try to impose that advice on either of the parties. Once a matter is settled in mediation, a report is sent to the concerned court to pass a decree accepting the mediation settlement of the parties reached by mutual consent. Also, the discussions held during the mediation process remains confidential and none of the parties or the mediator can disclose any information revealed during the mediation process to the outside world, and hence in such scenario, the privacy of both the parties are not breached in any way.

Arbitration is also becoming a very popular form of dispute settlement in the modern world. In arbitration usually, both the parties appoint one arbitrator each and thereafter both the arbitrators together appoints a third arbitrator (who is called the umpire) and then the arguments are presented in front of the arbitration panel and an arbitral award is granted. However, people have been reluctant to opt for arbitration as a dispute resolution in matters pertaining to matrimonial disputes largely because of a non-judicial body deciding matters that will also be binding over both the parties, even though the arbitration is less time-consuming.

STATUTORY PROVISIONS AND SPECIAL PROCEDURE

Matrimonial disputes are very sensitive issues and need to be handled with care and avoid further damage to emotional bonds in any way. In such scenario, the normal judicial proceedings like in any other cases cannot be initiated in matrimonial dispute cases and hence, in various personal laws statute there have been references for mandatory reconciliation efforts such as, In Hindu marriage Act, “Section-23 states that before granting any relief, it is a mandatory duty of the court in the first instance only to make every endeavour to bring about a reconciliation between the parties.”[5] Before 1976 it was under the duty of the courts to conduct the reconciliation, however in such scenarios since the court is already burdened with so many cases and time constraints, it used to conduct this conciliation session very short and hence that proved to be ineffective conciliation process. To avoid such scenario, Section 23(2) was added by amendment in 1976 which says that if during any time the parties or the court feel any need of reconciliation, then for 15 days it can adjourn the matter and send it to any third party suggested by the spouses and if the spouses are unable to give any name then it is the duty of the court to appoint an expert nominated by the court to pursue that reconciliation.[6]

Similarly, the statutory provision is provided in Section 34(2) and 34(3) of the Special Marriage Act[7]. And even if both the spouses have filed for a joint petition for divorce still attempt to reconciliation are taken by the court.

The Family Courts Act, 1984 is a statutory Act that was established to promote conciliation in matrimonial disputes. Section 9 of the Family Courts Act clearly states that when a matrimonial dispute matter comes in court, first instance the court should try to assist and persuade the parties for settlement[8]. Or if in any stage the court or parties feel that the matter should be sent for conciliation or mediation even then the court will adjourn the proceedings and send the matter for conciliation or mediation.

In the Code of Civil Procedure, 1908 contains “Section 89, which talks about powers given to the court to refer any case for arbitration, conciliation, Lok Adalat or mediation.”

The Legal service authority has set up various pre-litigation and during litigation legal aid cells to settle or resolve the dispute between parties in a dispute.

Various Forums other than the traditional judicial mechanism for matrimonial dispute resolution are:-

LOK ADALAT

It means the people’s court and for the most reasonable cause for approaching Lok Adalat is its nature of speedy disposal of cases. Lok Adalats are very helpful in many dispute resolutions and available at national, state, district and even Taluka level and are conducted time to time in which Taluka and district Lok Adalats are working on regular basis and are very helpful in post divorce matrimonial disputes.

FAMILY COUNSELLING CENTRES

Many states have set up family and marriage counselling centres. Efforts are made by counsellors in these centres to resolve the conflicts between parties. They also give emphasis on reuniting the couple, if reuniting is not possible then these counselling centres works on resolving the disputes arising post-divorce such as child custody, alimony, matrimonial property etc. The centres make sure that these disputes are dealt with amicably.

Hence it can be said that the legislation and judiciary approach to promoting counselling, conciliation and mediation i.e. alternative methods to resolve matrimonial disputes before any other traditional judicial proceedings because these methods have proved to be more effective and less time consuming than the traditional judicial proceedings.

CONCLUSION

Matrimonial disputes are very sensitive issues and can be very devastating for the family. Ordinary judicial proceedings can be very expensive, time-consuming and even embarrassing at times when the personal details of relations are shared in open court and used by advocates against the spouses. On the other hand, alternative methods to resolve matrimonial disputes are increasingly used in today’s society as they are quicker, cheaper and also confidential between the spouse/concerned parties. However, still, it is not easy to say that such methods are always better than traditional methods as in many cases even after reconciliation spouses are not emotionally connected and can cause further marital disputes in future after a short span of time, but if the mediation processes or the conciliation is done effectively making sure that each and every issue is dealt with legally as well as keeping in mind the emotional point of view so as to truly resolve the matters between both the spouses, then such alternative methods to resolve matrimonial disputes can be said to be better and effective than the traditional judicial proceedings. Further, it can be said that counseling is a beneficial and constructive approach toward resolving matrimonial disputes as even if the couple decides to go for the option of divorce, still, their pain is eased and they are mentally prepared for the impacts and counselled for leading a stress-free, trauma-free life. Therefore counseling should be mandatory at first for any matter related to any matrimonial dispute and after that only it should be allowed to go to judicial proceedings.

References:
1. PROF KUSUM, FAMILY LAW LECTURES FAMILY LAW I LEXIS NEXIS, pp 447(4th ed 2015)
2. S.M. CRETNEY AND J.M. MASSON, PRINCIPLES OF FAMILY LAW, pp 165 (1990)
3. JUDGE LAURENS L. HENDERSON, ‘MARRIAGE COUNSELLING IN A COURT OF CONCILIATION’, JUDICATURE pp 253,256 (vol. 52 1969)
4. PROF KUSUM, FAMILY LAW LECTURES FAMILY LAW I (4th ed. 2015)
5. THE HINDU MARRIAGE ACT, 1955,S.23
6. LEXISNEXIS, UNIVERSAL’S LAW PUBLISHING HINDU LAWS, pp 21-22 (2018)
7. SPECIAL MARRIAGE ACT 1954, S.34
8. FAMILY COURTS ACT, 1984, S.9
9. CODE OF CIVIL PROCEDURE, 1908, S.89

About the author –
This article is submitted by SHUBHANKAR DAS, 5th Year B.A.LL.B (Hons.) student at Institute of Law, NIRMA University.

Categories
Article blog

Adoption under Hindu Law

Every child has a right to love and be loved and affection and of moral and material security and this is possible only if the child is brought up in a family. The most congenial environment would of course be that of the family of his biological parents. But if for any reasons it is not possible for the biological parents or other near relative to look after the child or the child has been abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child; the next best option would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents as the adoptive parents would be the next suitable for the biological one” Pertinent laws governing adoption are:-

  • Hindu adoption and maintenance act 1956
  • The guardians and ward act 1890

THE HINDU ADOPTION AND MAINTENANCE ACT 1956

Hindus believe that one who died without bearing a son would have to continue the cycle of life and death and those who bear a son can get “mukti” from this cycle as only the son has the power to perform rites for the parents. The ancient Hindu shastras recognised dattak as types of sons. In the shastras it is said that the adopted son or the dattak son should be considered as the clone of the son who should have naturally been born.

Keeping this philosophy in mind the “HINDU ADOPTION AND MAINTENANCE ACT 1956” was enacted under the leadership of our late PM Jawaharlal Nehru.
This act specifically dealt with the legal process of adopting children by Hindu adults and with the legal obligation of a Hindu to provide “maintenance” to various family members including their wives or parents and in-laws.

This law is applicable to all the Hindus and all those religions which are considered to be the sisters of Hinduism like Buddhism, Jainism and Sikhism. This act does not apply to a person who is not a Hindu such as a Muslim a Christian a Jews or a Parsi. This act also does not apply to the adoption prior the date of enactment of the Act.

REQUISITES OF A VALID ADOPTION
No adoption shall be valid unless:-

  • The person adopting has the capacity and also the right to take in adoption.
  • The person giving in adoption has the capacity of being taken in adoption.
  • The person taking the adoption has the capacity to do so.
  • The person adopted is capable of being taken in adoption.
  • The adoption is made in compliance with the other conditions mentioned in this chapter.

WHO CAN ADOPT
A Hindu male

  • Of sound mind and is not a minor and has the capacity to take a son or a daughter in adoption.
  • If he has a living wife; her consent is very important and if he has multiple wives consent of all the wives is mandatory and the wife has clearly stated her consent.

The Supreme Court has decreed:-
“A HINDU ADOPTION IS NOT VALID UNLESS THE MAN TAKES PRIOR CONSENT FROM HIS WIFE AND THERE IS A “CEREMONY OF GIVING AND TAKING IN ADOPTION”

A Hindu female

  • Of sound mind.
  • Who is not a minor?
  • Who is not married, of if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by the court of competent jurisdiction to be of unsound mind
    A married woman cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife.

WHO CAN GIVE FOR ADOPTION

  • No person except the biological father and mother or guardian of the child
  • The biological mother, may give the child in adoption, if the biological father is dead or of unsound mind or ceased to be a Hindu
  • When both the parents are dead or have abandoned the child or have been declared by the court of unsound mind and where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
  • Before granting permission to a guardian the court shall be satisfied that the adoption will be for the welfare of the child.

WHO CAN BE ADOPTED

  • He or she should be Hindu.
  • He or she has not been adopted already.
  • He she not been married or has not completed the age of fifteen years (unless there is a custom or usage applicable to the parties which permits person who are married being taken in adoption)

In Dundappa A/F Goudappa vs Sundrawwa w/o Rangangouda
though the plaintiff Dundappa was at the age of 15 years as on the date of his adoption in the year 1983, still his community practicing the adoption of a person above 15 years of age has permitted for such adoption and the evidence led before the Court below has proved that the plaintiff Dundappa has been adopted by the propositus Goudappa duly performing the rituals and ceremonies prevailing in their community.

OTHER CONDITION FOR VALID ADOPTION

  • If any adoption is of a son the adoptive father or mother by whom the adoption is made shall not have a Hindu son, son’s son or son’s son’s son (legitimate blood relation or by adoption) living at the time of adoption and same goes for the daughter as well.

An issue arose before the Bombay high court in Payal vs. Indian adoption that whether a Hindu couple governed by Hindu adoption and maintenance act with a child of their own can adopt a child of the same gender under the provision of the juvenile justice act of 2000. When there is a conflict between the provision of Hindu adoption and maintenance act 1956 and juvenile justice act of 2000 it is the later act which would prevail following all the conditions of the later acts.

  • If a male wants to adopt a female child, the adoptive father should be at least twenty one years older than the child and if a female wants to adopts a male they also should have a twenty one year of age gap
  • The same child cannot be adopted by two or more persons simultaneously
  • The child to be adopted must be actually given and taken in adoption by the parents or guardian.

In Gurdas v. Rasaranjan AIR 2006 SC 3275.
Adoption is made when the actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam. For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking Ceremony.

EFFECTS OF ADOPTIONS

An adopted child shall be deemed to be the child of his adoptive father or mother for all purposes. He/ she is the reflection of their natural children.

“Like a son born into the family, an adopted son is also entitled to succeed to the joint family property. He becomes a coparcener with adoptive father, but his relationship with the natural family is severed, including his status as a coparcener in the family of birth as laid down in Nagindas Bhugwandas v. Bachoo Hurkissondas, AIR 1915 PC 4

  • He cannot marry a person whom he/she could not have been married if he/she had continued in the family of his or her birth
  • Any property which belonged to the person before adoption shall he his/hers even after their adoption they are also obligated to maintain relatives in the family of his or her birth.
  • Child has to cut off all legal benefits from the family who had given him or her up for adoption.

RIGHT OF ADOPTIVE PARENTS TO DISPOSE OF THEIR PROPERTIES

In Sawan Ram & Others vs Kala Wanti & Others on 19 April, 1967 an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.

Determination of adoptive mother in certain cases

When a Hindu whose wife is living, adopts a child, she shall be deemed to be the adoptive mother when the man has more than one wife the senior most wife is the adopted mother of the child adopted and others are deemed to be the stepmothers.

When a widower or a bachelor adopts a child the wife whom he marries subsequently shall be deemed to be the stepmother of the adoptive child same goes when a widow or unmarried child adopts a child the husband she subsequently marries shall be the stepfather of the adoptive child.

Valid adoption not be cancelled

No adoption is cancelled either by the adopted father of the adopted mother or the child who has been adopted if the adoption has been validly made.

Section 17 prohibition of certain payments No person shall receive or agree for any kind of payment or reward in consideration of the adoption and if someone’s indulging himself in this practice they are subjected to punishment of imprisonment which may extend to six months or with fine or with both. Muslims, Christians and Parsi do not have any particular act that governs their adoption proceeding.

Islam does not recognise adoption in Mohammad Allahabad khan vs. Mohammad Ismail; it was held that there is nothing in the Mohammedan law similar to adoption as recognised in Hindu system. But it is never discouraged to take care of an orphan but in no manner he/ she is a reflection of their own natural offspring’s. It is considered to be a blessing to take care of an orphan in Islamic law, if forbidden by Islamic law to adopt a child but permissible to take care of another child which is known as kafala which is translated into sponsorship.
Christians do not have the option of adoption in their respective personal law boards nevertheless in Phillip Alfred Marvin vs V.J Gonsalves, the court upheld the legal validity of an adoption undergone through the help of the church despite the absence of any law or custom, the court held that adoption was recognised under Christian law and the adopted child had same rights as that of a natural child.

Parsis personal law board also have no provision for adoption however a custom prevails among the Parsis known as the Palak where the widow of a childless Parsi can adopt a child after four days of her husband’s death so that certain religious ceremonies could be performed annually, this child acquires no property rights.
So to this problem of adoption Muslims, Christains, Parsis, Jews approach the court under the Guardians and Ward Act 1890 under this act Christians can take a child under the said Act only under foster care. Once a child under foster care becomes major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance.

MAIN PROVISION OF THE GUARDIAN AND WARD ACT 1890

  • Applicable to all the children with no relevance to their race cast or creed
  • Unlike Hindu adoption and maintenance act 1956 the guardianship and ward act does not grant equivalent status to the adopted child as that of the biological child of the adoptive parents
  • Here the guardianship is only till the child is a minor. This relationship last only till the child attain the age of 21 after completing the prescribe age he/she will not remain as ward and will be considered as an individual identity
  • Under this ast the child will only become a ward of his /her guardian parents; he will not become their own child however if the adoptive parent wishes to bequeath their property then they can do so by way which can later be challenged by any of their blood relations.

References:
Hindu adoptions and maintenance act 1956
Family law by paras diwan
Guardian and ward act 1890

About the author –
This article has been written by Aparna Mishra, 3rd Year B.A.LL.B (Hons.) student at The Maharaja Sayajirao university of Baroda.

Categories
Legal

Critical Analysis of Mental Health Laws in India

Abstract

The need for legislation which secures the rights of people with mental illness is a necessity for a nation like India where there is extreme apathy towards the mentally disabled. In a report published by the World health Organisation, it was reflected that close to about 50 million people suffered from depression in India, making it dismally apparent how mental health is perceived in our conservative country.

The government in an effort to help the mentally ill and provide greater protection to their rights enforced the ordinately discussed Mental Healthcare Bill into an enactment in 2017. The act also provides for scope of different treatment methods that must be made available to the citizens of the country to further prevent the mistreatment and neglect.

Various mental health experts and non-governmental organizations initiated public debates and have raised various issues. The object of this research is to find out and outline these issues or shortcomings in this Bill and how the prevailing situation of neglect pertaining to mental health can be addressed.

Keywords: Mental Capacity, Mental Disability Mental health, Mental Healthcare Act, Mental Health Laws, Mental Treatment

Introduction

The National Mental Health Survey (NMHS) and studies based on the Global Burden of Disease 2013 data, published as part of the China-India Lancet series, sought to analyse the mental, physical and neurological burden of substance abuse. The NMHS covered a representative population of 39,532 individuals from various regions in India and estimated the prevalence of mental, neurological, and substance use disorders. It aimed at highlighting the gaps in treatment patterns along with healthcare systems and services.

In a similar state-level study in India by The Lancet Psychiatry, the prevalence and disease burden due to mental disorders for every state of India from 1990 to 2017 was brought to light. According to this study, one in every seven Indians was affected by mental disorders (197·3 million people, 95% uncertainty interval [UI] 178·4–216·4), the proportional contribution of mental disorders to the total disease burden in India almost doubled from 1990 to 2017 (increasing from 2·5%, 95% UI 2·0–3·1, in 1990 to 4·7%, 3·7–5·6, in 2017), and marked regional variations in the prevalence of disorders were observed.[1]Anyhow, some disorders like dementia and epilepsy, along with substance use disorders were excluded and their burden associated with suicide was not studied.

The number described in the study is thus probably an underestimate of the actual situation prevalent in India. The study has found sex-specific differences in the distribution of mental disorders and association of older age with increased prevalence of depression, which is a unique finding compared with previous literature from high-income countries. It is also a matter of grave concern because the population of India is ageing rapidly. It is being widely discussed how an evidence-based mental health service system is the only method that holds any potential at all to address the huge concern over mental health in India.

Health encompasses the composite union of physical, spiritual, mental, and social dimensions according to the World Health Organization (WHO), which recognizes that “mental health and well-being are fundamental to quality of life, enabling people to experience life as meaningful, become creative and active citizens.” Mental health is significantly different from general health as in certain circumstances mentally ill people may not be in a position to make decisions on their own.[2] (Kleinman, 2003)

The recently enacted Mental Healthcare Act, 2017 was enforced pragmatically to comply with the United Nations Convention on the Rights of Persons with Disabilities but to a rather sad execution. The Act optimistically aims to grant a legally enforceable right to mental health to an overwhelming number of 1.3 billion people, one sixth of the planet’s population.

However, key challenges relate to resourcing both mental health services and the new structures proposed in the legislation, the appropriateness of apparently increasingly legalized approaches to care (especially the implications of potentially lengthy judicial proceedings), and possible paradoxical effects resulting in barriers to care.
There is ongoing controversy about specific measures (e.g., the ban on electro-convulsive therapy without muscle relaxants and anaesthesia), reflecting a need for continued engagement with stakeholders including patients, families, the Indian Psychiatric Society and non-governmental organizations. Despite these challenges, the new legislation offers substantial potential benefits not only to India but, by example, to other countries that seek to align their laws with the United Nations’ Convention on the Rights of Persons with Disabilities and improve the position of the mentally ill.

It is becoming increasingly concerning as the Indian population keeps increasing at a high rate while simultaneously ageing as well; the existing infrastructure is overwhelmingly insufficient. Moreover, in light of the prevalent health burden of mental illness in our country, in addition to the social stigma attached, it is very important for the government and various stakeholders to address these issues. From another perspective, it also imperative to take bigger steps and measures in accordance with India’s international obligations toward the mentally ill as per the Convention on Rights of Persons with Disability (2007) and its optimal protocol.[3] Hence, a patient-centric bill that safeguards available, affordable, and accessible mental healthcare services was a long due in India.[4]

An Overview of the Act

The new Mental Healthcare Act was passed by the parliament in March 2017 defining “mental illness” as a disorder comprising of a significant impairment in judgment or ability to meet the ordinary demands of life due to disorderly thinking, mood, perception, orientation, and other mental issues in relation with the abuse of alcohol and drugs.[5]
The Act succeeded the Mental Health Act of 1987 which was overwhelmingly limited in its scope and was largely criticised for the constraint in enforcing the rights of the mentally ill which ultimately resulted in isolation of mental health patients throughout the country.[6] This act has overturned 309 Indian Penal Code which criminalizes attempted suicide by mentally ill person. Further, this new legislation is sought out to protect the rights of the mentally ill and empowering them through easy access to treatment and by an advance directive pertaining to how he/she wants to be treated for his/her illness. [7] The various provisions under the Mental Healthcare Bill are as follows: [8]

Rights of persons with mental illness

The act guarantees every citizen a right to access convenient, quality, affordable and accessible mental healthcare services. The Act also aims to protect the mentally ill from inhuman treatment, and make free legal services along with the right to complain in the event of deficiencies in provisions available to them.

The Act also seeks to provide the mentally ill empowerment through the right to make an advance directive toward the way she/he wants to be treated for the requisite illness and who her/his nominated representative shall be; but at the instance of a registered medical practitioner only.

The Act mandates the government to establish institutions Central Mental Health Authority at national level and State Mental Health Authority in every state. It requires all the mental health practitioners and institutes throughout the country to be registered with this authority. These institutions are mandated to:

register, supervise, and create and maintain record of all mental health establishments;

develop quality and service provision norms for such establishments;

maintain a register of mental health professionals;

train law enforcement officials and mental health professionals on the provisions of the act;

receive complaints about deficiencies in provision of services; and

advise the government on matters relating to mental health.

All the procedures and processes for admission, treatment, and subsequent discharge of the mentally ill has also been outlined and listed under the Act.

Decriminalizing suicide and prohibiting electroconvulsive therapy

The Act has abolished the long-standing legal provision for criminalising attempt to suicide by the mentally ill. Rather, it has created an imposition on the government to ensure rehabilitation of such persons in order to ensure non-recurrence. It is also laid down that the mentally ill must not be made subject to electroconvulsive therapy (ECT) therapy in the absence of muscle relaxants and anaesthesia in addition to the therapy procedure being made completely restricted to be performed on minors.

Responsibility of certain other agencies

Going into further detail, the Act lays down provision to mandate the police to create a reporting duty to the Magistrate if there is probable cause to believe that a mentally ill person is being mistreated. In addition to this it also mandates the officer in the charge of a police station to take under protection any wandering person who must be then examined by a medical officer. Further, it is decided through the examination whether that person needs to be treated for their mental illness or to be taken back to their home or a homeless shelter.

Critical Analysis

The Mental Healthcare Act 2017 aims to provide mental healthcare services for persons with mental illness. The Act has been aimed at providing the mentally ill with a right to live life with dignity and not be mistreated, discriminated against or harassed in any kind. There are many positive/constructive aspects to this bill, but it is not without its shortcomings, it is not failproof in the Indian context. The legislation has provided legal enforceability to the right to mental health services the mere act of which is extremely laudable. Mandate for the establishment of provisions of mental health services in every district of the country has also been laid down in this ambitious legislation. But it is also pertinent to note here that given the insufficient infrastructure, the financial aspect to the execution of all these provisions is a matter of concern. The increasing spending is becoming a concern with the economic slowdown and recession.

Taking ideas and concepts from the West, the parliament has taken up the provision for “advance directive” which provides mental health patients empowerment to choose the methods of their treatment. But as opposed to developed countries of the West, the already available mental health resources and awareness about mental illness is of much greater lacking in our ever-developing country. Despite the legislation being ambitious and forward-looking, the actual means and the end to the objectives laid down in the Act remains uncertain and has been said to lack confidence from the public. In addition to this, with the directive to provide greater decision-making power to the patient, who might lack the ability to make decisions in their best interest due certain mental disorders, the time of admission and treatment of the mentally ill will greatly lengthen. It is so because in such scenarios, treating physicians is the best to make decisions because patients or their nominated representatives have limited knowledge on mental health and mental illness. [9]

The act also assures free quality treatment for homeless persons or for those belonging to below poverty line (BPL), even if they do not possess a BPL card. In our country, where mental illness is considered equal to depression, the obvious financial burden on the government will be too high. It was among the lowest in the world and the public health expenditure has consistently declined since 2013–2014.[10] India in the past has spent 0.06% of its health budget on mental health care, which is significantly less than what Bangladesh spends (0.44%). Most developed nations spend above 4% of their budgets on mental health research, infrastructure, frameworks, and workforce, according to 2011 WHO report.[11]

Even though the decriminalisation of attempt to suicide under the new Act is laudable, it cannot be denied that it was long overdue and that there is a great probability that this provision might be misused. For instance, in dowry related cases involving burning/attempted murder, the facts can easily be altered to show it as attempted suicide and consequently, the situation is most likely to be neglected.

The new Act fails to address the factors of culture, lacking access to healthcare, the unreasonable stigma and the advertent discrimination in India. The mental healthcare bill does not offer much on prevention and early intervention but rather aims to reduce the consequences of an already existing mental health issues. Looking to address the mental health burden in idea in the ideal manner, these facts can be inferred as the limitations to the Act.

Conclusion

Mental Healthcare Act 2017 has been anticipated to change the fundamental approach on mental health issues. Including a sensible patient-centric health care, instead of a criminal-centric one, in India, the second most populous country and one of the fastest economies in the world. The guidelines need to be reviewed on aspects such as primary prevention, reintegration, and rehabilitation because without such strengthening, its implementation would be incomplete, and the issue of former mental health patients will continue to exist.
It is anyhow, a great step in addressing the mental health issues in India.

Citations and References

1.“Unburden Mental Health in India”, Rahul Shidhaye, December 20, 2019
https://www.thelancet.com/journals/lanpsy/article/PIIS2215-0366(19)30524-3/fulltext

2. Patel V, Kleinman A. Poverty and common mental disorders in developing countries. Bull World Health Organ. 2003; 81:609–15

3. World Health Organization. Disability and Health, Fact Sheet. Geneva: World Health Organization; 2016

4. Evaluation of District Mental Health Programme – Final Report Ministry of Health and Family Welfare Government of India. New Delhi: Indian Council of Marketing Research; 2009

5. What is Mental Healthcare Bill? The Indian Express. 2017. Mar 28, available from:
http://www.indianexpress.com/article/what.is/mental.healthcare.bill.passed.parliament.lok.sabha

6. Ginneken N, Jain S, Patel V, Berridge V. The development of mental health services within primary care in India: Learning from oral history. Int J Ment Health Syst. 2014

7. Mental Healthcare Bill Decriminalizes Suicide Attempt Passed by Parliament. Hindustan Times. 2017. Mar 27, available from:

http://www.hindustantimes.com/india-news/mental-healthcare-bill-that-decriminalises-suicide attempt-passed-b-parliament/story-iL3DXiatxP7BFhS2t4zGCM.html

8. New Mental Health Bill Provisions-and Some Challenges in their Implementation. The Indian Express. 2016 available from: http://www.indianexpress.com/article/explained/new-mental-health-bill-provisions-rajya-sabha-2964545/

9. Mental Healthcare Bill: Despite the Positive Reforms, a Lot More Needs to be Done for the Mentally Ill. First Post. 2017. Apr 08, available from: http://www.firstpost.com/india/mental-healthcare-bill-despite-the-positive-reform-a-lot-more-needs-to-be-done-for-the-mentally-ill-3373156.html

10. Center State Government Spends 1.3% of GDP on Health Care in 2015-2016. Times of India. 2016. Aug 2, available from:

http://www.timesofindiaindiatimes.com/india/Centre-state-governments-spent-1-3-of-GDP-on-healthcare-in-2015-16/articleshow/53509406.cms

11.World Health Organization. Spending on Health: A Global Over View. Geneva: World Health Organization; 2012 available from: http://www.who.int/mediacentre/factsheets/fs319/en/

About the author –
The said Critical Analysis has been written by Vidhit Verma, 2nd Year B.B.A. LL.B (Hons.) student at School of Law, Christ (Deemed to be University), Bengaluru