Sexual Assault of Married Minors - The Blatant Stance taken by the Indian Law by Amrita Ghosh
In a judgment dated August 9, 2017 in the case of Independent Thought v. Union of India, a division bench of the Supreme Court of India ruled that marital rape cannot be considered to be a criminal offence under the Indian law. Additionally, the Court was of the opinion that sexual intercourse of a man with this wife, despite her being aged between 15 and 18 years, will not be considered to be rape as per the Indian Penal Code (‘IPC’). This decision was pronounced in response to a plea to declare Exception 2 to Section 375 of the IPC as unconstitutional, based on its violation of Articles 14, 15 and 21 of the Constitution. When contrasted with Section 375 of the IPC which designates various forms of sexual interaction with a girl below 18 years, regardless of the presence of her consent, as statutory rape, this Supreme Court judgment poses a peculiar dichotomy whereby minors are protected from the offence of ‘rape’ only till they turn 15 years and are married-off.
It is argued that by accepting the validity of such a discriminatory and, in fact, harmful provision, the Supreme Court has lost a valuable opportunity to annihilate a provision in the Indian law which facilitates the abuse of minor girls. Further, in this context, it is important to note that the conservative approach undertaken by the Supreme Court by means of adherence to the statutory provisions defeats the purpose of special statutes that have been evolved to accord protection to minors from sexual abuse such as the Immoral Traffic (Prevention) Act, 1956 and the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). Evidently, the existence of Exception 2 of IPC as a legally valid provision directly contradicts the legal protection provided to minor girls under the POCSO. Moreover it clearly overlooks the possibility of traffickers or pedophiles misusing the provision to exploit vulnerable girls.
As the law stands, it is possible for a pedophile to get married to a minor girl aged 15-18 years old and exploit her physically under the protective garb of Exception 2 to Section 375. Furthermore, even if the minor girl is later able to annul her marriage by means of the right provided to her under the Prohibition of Child Marriage Act, 2006, she will be unable to obtain justice against the sexual misery she was put through by her husband during the subsistence of her marriage.
The judgment, therefore, by allowing the continuance of a deeply regressive provision fails in its responsibility to protect the rights of minor girls who are married-off to adult males who subject them to sexual miseries. It is thereby argued that the presence of this Exception in the IPC, which merely reaffirms the notion of the wife as a possession of the husband and disregards the physical impact that sexual intercourse and potential pregnancies resulting from the same can have on the still developing bodies of minor girls, is a disgrace to the Indian criminal justice system. Such an archaic provision based in misogynistic patriarchal traditions should therefore be repealed immediately. ... See MoreSee Less
In the recent case brought against Ola by two cab aggregators, Fast Track Call Cab Pvt. Ltd and Meru Travel Solutions Pvt. Ltd, the Competition Commission of India (CCI) held that dominance in a market cannot be assumed only because market share is above 50%.
Under the Competition Act, 2002 (“Act”), any entity can abuse its position only if it is dominant in the relevant market. Section 19(4) of the Act lays down certain criteria to determine what will constitute as dominance in the market. Market share is one of the 13 factors listed under the Section, however the Act does not provide for any fixed arithmetical figure to determine dominance. Under the erstwhile Monopolies and Restrictive Trade Practices Act, 1970, a figure of 25% was fixed to determine dominance.
The petitioners took the argument that there is a presumption of dominance in favour of Ola as it has more than 50% of the market share which was rejected by the CCI. Market share was held to be one of the factors to determine dominance but it could not be the sole factor. The CCI relied on numerous other cases to rule that in order to determine dominance it is more important to look at whether the entity can function in the market independently, without being influenced by other players, the answer to which was negative in the present case.
Though not the sole criteria, numerical strength of market share is an important factor to determine dominance. In South Africa and Israel, there is a non-rebuttable presumption of dominance of an enterprise if the market share is 45% and 50% respectively, while on the other hand even with a market share of 80% there is a rebuttable presumption of dominance in Canada.
India has generally followed the approach adopted by EU in determining whether an entity is in a dominant position or not by looking at its market share and there generally has been a presumption that if market share is more than 50%, an entity can be considered dominant. Interestingly, in the case of National Stock Exchange of India v Competition Commission of India the CCI and the Competition Appellate Tribunal has held that an entity need not be the leading player in terms of market share if it can be shown to be dominant through other factors like size, resources, vertical consolidation, etc. The CCI has also applied the Akzo dominance (presuming dominance if the market share is more than 50%) in various cases, the most notable among them being the Schott glass case. Yet again, in the NSE case, NSE was held to be a dominant player in the market with only 30% market shares. In the DLF case, the CCI concluded that DLF was in a dominant position as it held 50% of the market share.
Thus, there is no fixed determination of dominant power based on numerical strength and the CCI has adopted different approaches on a case-to-case basis. In UK, market share is held to be a determining factor for presumption of dominance, but India has adopted a holistic approach by not focusing on a sole factor and relying on the day-to-day changing market considerations which is better suited under the present circumstances. ... See MoreSee Less
On July 19, 2017, the Bombay High Court issued notice to the Central Government in a petition challenging the certification of Sections 156 to 189 of the Finance Act as a ‘money bill’. This certification has effectively negated possible objections by the Rajya Sabha, since the Upper House can only suggest amendments to money bills. The petitioner has contended that since these sections amend provisions relating to structuring and re-organisation of tribunals, they cannot be termed as matters relating to money bills as envisaged under Article 110 of the Constitution, and hence these matters should have been legislated only through separate legislations and bills and with the assent of the Rajya Sabha. The repeated practice of using the money bill route for passing legislations such as the Insolvency and Bankruptcy Code, 2016 and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, so as to circumvent the Rajya Sabha’s approval, has been contested as ‘fraud on the Constitution’ and a ‘colourable exercise of power’. Similar petitions have been filed before the Madras and Gujarat High Courts in the past month, bringing the issues of finality of certification of a bill as a ‘money bill’, and judicial review over money bills, to the forefront of public discourse. In this context, the paper co-authored by Mr. Pratik Datta, Ms. Shefali Malhotra and Ms. Shivani Tyagi, published in the latest issue of the NUJS Law Review (available at: nujslawreview.org/wp-content/uploads/2017/06/10-%E2%80%93-2-%E2%80%93-Judicial-Review-and-Money-B...), which explores the multifarious ramifications of these issues through the lens of an inter-jurisdictional comparative constitutional analysis, is an immediately relevant, engaging and enriching contribution towards understanding the contours of the debate. ... See MoreSee Less
Regulation of Bitcoins/Digital Currency in India by Roma Bhojani
The Government of India has been deliberating on formally legalising digital currency or cryptocurrency such as Bitcoins in India. In March 2017, the Ministry of Finance set up an intergovernmental committee with a mandate to research and create a framework for regulation of digital currency in India. In July 2017, the Supreme Court directed the government and the Reserve Bank of India to submit information on steps which have been taken to ensure that digital currency will not be used for terror financing, money laundering or other illegal activities. There is currently no law regulating digital currency in India, and it has not been explicitly declared as legal or illegal. Japan legalized digital currency in March 2017 and this led to a boom in the price and sale of Bitcoins. Even the central bank of China has already developed a prototype of a digital currency that it might circulate shortly. China will be conducting mock transactions involving digital currency by simulating possible situations, to analyse the issues which could arise by legalizing digital currency.
Proponents of digital currency believe that India is currently at an ideal place to launch legal digital currency due to many reasons. The Prime Minister Narendra Modi has been trying to popularize the idea of ‘Digital India’ since 2015 by encouraging improvement of digital infrastructure and internet connectivity. The government has been carrying out campaigns to open bank accounts for all citizens. Despite these efforts, millions of people in India do not have bank accounts. It is believed that improving this situation is an extremely difficult task due to lack of formal banking infrastructure. Digital currency could provide an online banking solution to those who are not a part of the formal banking framework as it will only require access to internet and no elaborate infrastructure. Furthermore, the process of accessing digital currency is less tedious than the process of opening a bank account as the latter requires submission of various documents, permanent address proofs, etc.
If digital currency is legalised in India then it would fall under the regulatory framework of currency in India. This means that it would presumably fall under the purview of Reserve Bank of India (RBI) Act, 1934. This means that the RBI would have the power to issue guidelines to regulate investment in digital currencies and their sale. Furthermore, the government will be able to tax the returns on investment from all types of digital currency. Moreover, foreign payments made using digital currency will be considered under the Foreign Exchange Management Act (FEMA), 1999. This regulation and control by the RBI and government would be helpful in countering the security risks associated with digital currency and encourage foreign investment in this currency in India. Another advantage of digital currency is that it would be an easier method for Indian citizens abroad to send small remittances back to their family India. Furthermore, sending remittances through Bitcoins would save fees paid to third parties amounting to billions, and this would be highly beneficial to India as it is one of the world’s largest remittance market.
The Bitcoin industry is already massive in India. The demonetization policy in 2016 resulted in the country experiencing a Bitcoin boom. It resulted in the formation of new Bitcoin startups and due to an increase in demand, a large premium was charged on the Bitcoin prices. Even the ‘Digital India’ policy encouraged Bitcoin investors in India. According to a BitConnect report, India has over 1 million Bitcoin users. Legalizing digital currency in India will further lead to increase trading volumes and activities involving this currency. Thus, legalizing digital currency appears to be the right step for India. ... See MoreSee Less
“PRIVACY AND THE NATIONAL IDENTIFICATION AUTHORITY OF INDIAN BILL: LEAVING MUCH TO THE IMAGINATION” by Amba Uttara Kak and Swati Malik
Last week the Supreme Court of India finally acceded to requests for hearing the Aadhar matter by a Constitutional Bench after a long delay since such a reference was made. Important questions of individual’s right to privacy and the contours of such a right under Article 21 are pending before the Court. The first hearing is scheduled for Tuesday.
In the article “PRIVACY AND THE NATIONAL IDENTIFICATION AUTHORITY OF INDIAN BILL: LEAVING MUCH TO THE IMAGINATION” Volume 3, Issue 4 by Amba Uttara Kak and Swati Malik, the authors undertake a comprehensive study of the then NIAI Bill which later became the Aadhar Act 2016. A close reading tells us that although changes were made to the Bill later on, the new Act suffers from many ambiguities which give rise to serious concerns. The detailed analysis of the authors in the article by taking issues of information privacy, national security etc. head on, makes for an interesting read before the Supreme Court begins hearing the challenge.