📰 Prosecution under Benami Act stuck
No special courts set up for the purpose yet
•The prosecution of accused persons in almost 100 confirmed cases instituted under the Benami Transactions (Prohibition) Act has been scuttled as the special courts meant for the purpose have not yet been set up across the country.
•Assets worth more than Rs. 5,000 crore have been attached by the Income-Tax Department under the law.
•The Act provides that the Central government, in consultation with the Chief Justice of the respective High Courts, will establish special courts through notification. Such courts are to be constituted to ensure that the trials are conducted “as expeditiously as possible”.
•“Every endeavour shall be made by the special court to conclude the trial within six months from the date of filing of the complaint,” says the Act.
•However, an official said, the required special courts have not been set up yet. Therefore, despite the fact that investigations in almost 100 cases have been completed by the I-T Department in different States, including confirmation of attachment of properties by the Adjudicating Authority, the prosecution of accused persons has not started.
📰 Adultery law violates the dignity of woman, says SC
Most countries have done away with it: counsel
•The time has changed since it was commonly accepted that it is the man who is the seducer and not the woman, the Supreme Court said on Thursday, while questioning if the ‘archaic’ law on adultery would stand the test of right to equality.
•A five-judge Constitution Bench, headed by Chief Justice Dipak Misra, made the observation while hearing a case challenging the validity of the penal law, which makes adultery an offence punishable only for men and not the consenting women.
Penal provisions
•Section 497 in the Indian Penal Code, which defines adultery, says that a man could be punished up to five years in jail if he has sexual intercourse with another man’s wife. However, it is not an offence if the sexual intercourse is with the “consent or connivance” of the husband of the woman.
•The Bench, also comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, said the IPC section treats a married woman as “chattel” (a personal possession) of the conniving husband, which was “absurd”. “When a woman is treated as chattel, her right to dignity is affected,” the Bench remarked.
•The Bench also observed that decriminalising adultery was not “a licence for people to go indulge in it”.
•It also remarked that adultery is a sign of marital breakdown as marriage as an institution has two pillars where both parties have to be equally responsible.
•Advocate Kaleeswaram Raj, appearing for petitioner Joseph Shine, an Indian living in Italy, said adultery remains a ground for divorce in all personal laws.
•“However, penalising adultery and jailing citizens for engaging in consensual sex is a different thing altogether. There is no compelling state interest or even a valid rationale for the state to do so,” Mr. Raj said.
•Mr. Raj clarified that he was seeking to strike down the provisions as unconstitutional and looking to make its provisions gender neutral.
•Senior counsel Meenakshi Arora said most countries have done away with adultery as a criminal offence, including Bhutan, Sri Lanka, China, South Korea.
📰 Managing perceptions: on amending the SC/ST Act
From the viewpoint of pragmatism, the Centre had no choice but to amend the SC/ST Act
•If we accept that politics is about pragmatism, about managing perceptions, about defusing difficult situations, and keeping a sharp eye out on the prevailing political winds, then the Union Cabinet’s decision to amend the provisions of the SC/ST (Prevention of Atrocities) Act appears both reasonable and unavoidable. It is arguable that no dispensation at the Centre could have ignored the massive Scheduled Caste protests against the Supreme Court verdict that was perceived as diluting the provisions of the 1989 law. With the call for a nationwide shutdown on August 9, one that an NDA constituent, the Lok Janshakti Party led by Ram Vilas Paswan, had threatened to join, the Centre was goaded into acting quickly. The proposed amendments are aimed at undoing three new rules laid down by the court: that the bar on anticipatory bail under the Act need not prevent courts from granting advance bail if there is no merit in a complaint; that there can be an arrest only if the appointing authority (in the case of public servants) or the district superintendent of police (in the case of others) approves such arrest; and that there should be a preliminary inquiry into complaints. What they do is state that the bar on anticipatory bail will remain “notwithstanding any judgment or order of any court”, that there will be no need for a preliminary inquiry before an FIR is registered and that no approval is required before someone is arrested under the Act.
•From the very beginning it was clear that the entire issue had less to do with the correctness of the Supreme Court judgment and more to do with the way it was interpreted, and sometimes deliberately misinterpreted. The judgment had not altered or read down any of the key provisions of the Act. The Court was at pains to emphasise that it was only seeking to protect the innocent against arbitrary arrest and that there should be no denial of relief and compensation to SCs and STs, whose rights should be protected. While no one can object to procedural safeguards against false accusations, it is possible that the Court’s concerns about what it saw as misuse of the Act resulted in the perception that it was introducing norms to prevent quick action on complaints. It is arguably much more likely that such perceptions consolidate at a time when the conviction rate under the Act is dismally low and atrocities against Dalits are a disturbing reality. It is vital that any law that is founded on punishing social ostracisation maintains a fine balance between protecting the rights of the individual to a fair trial and enforcing not only the letter but also the spirit of a legislation that was introduced to protect the dignity of the disadvantaged, who have suffered unspeakably as a result of the abhorrent practice of social discrimination.
📰 Bandipur: Ministry ‘overlooks’ key issues
Ban on night traffic has reduced roadkill, says NTCA report
•The Ministry of Road Transport and Highways (MoRTH) — which has proposed to the State government to lift the ban on night traffic through Bandipur — seems to have overlooked key issues brought to light in reports by the National Tiger Conservation Authority (NTCA) and other agencies, including the local police.
•A report submitted by the Chamarajanagar police to the NTCA pointed to the fact that before the introduction of the ban on night traffic through Bandipur, there were 23 accident deaths in the core zone between 2004 and 2009.
•This declined to seven between 2010 and 2017 and all of them were on the stretch from Maddur to Moolehole gate leading to Wayanad during the daytime. Activists are riled that the Ministry of Road Transport, which should also accord importance to human safety, has ignored this aspect.
•The NTCA, which is part of the committee constituted by the Supreme Court to look into the night traffic ban, stated in its report that wild animals such as tigers, elephants, gaurs, and other animals had behaviourally adjusted to the restricted traffic at night time and this was beneficial to the long-term conservation of these species. But the MoRTH has not taken note of it.
•Though there are objections to the alternative road via Hunsur-Gonikoppal-Kutta and Mananthavady on the grounds that it was longer, the NTCA noted that the distance should be calculated from Mysuru and not from the boundary of the Bandipur tiger reserve.
•The claims by some that patients are put to hardship if the forest roads are closed have been refuted by an activist from Wayanad. In a submission to the NTCA, the activist said the people in Wayanad have for a very long time been going to Kozhikode and Ernakulam districts for medical and emergency needs.
•The claims that Kerala was dependent on Karnataka for vegetables and fruits was countered by pointing out that the APMC markets close at 5 p.m. andvehicles carrying perishable commodities had time till 9 p.m. to pass through Bandipur.
•It was also pointed out that elephant movement during daytime itself was high on NH 766 and causing disturbance during night would only aggravate conflict situations.
📰 Discounting logic: on e-commerce policy
The draft e-commerce policy has too many echoes from the licence-raj era
•The process of putting together a regulatory framework for electronic commerce in the country is finally speeding up. A task force of the Union Commerce Ministry has submitted the draft National Policy on Electronic Commerce, which will now be studied by a 70-member think tank chaired by Suresh Prabhu, the Union Commerce, Industry and Civil Aviation Minister. India’s e-tail business, estimated to be worth around $25 billion, is still a fraction of the overall retail sector in the country, but it has been witness to some frenetic activity of late, including the merger between home-grown, but Singapore-based, Flipkart and global giant Walmart. Over the coming decade, the e-commerce pie is expected to swell to $200 billion, fuelled by smartphones, cheaper data access and growing spends. The draft policy proposes the creation of a single national regulator to oversee the entire industry, although operationalising its different features would require action from multiple Ministries and regulators. This would also need amendments to existing legislation and rulebooks. Consumer protection norms to guard online shoppers from possible frauds too are overdue. As per data available for the first eight months of 2017-18, over 50,000 e-commerce grievances were made to the Consumer Affairs Ministry helpline. Traditional retailers too have voiced concerns about large e-tail players with deep pockets pricing them out of the market, and have been seeking a level playing field.
•Much work, however, remains to be done to forge a cohesive framework from the draft. Among the ideas in the draft policy are a sunset clause on discounts that can be offered by e-commerce firms and restrictions on sellers backed by marketplace operators. The aim may be to prevent large players from pricing out the competition through unfair practices, but taken too far such licensing and price controls can depress the sector. To give the government a say on who can offer how much discount and for how long, instead of letting consumers exercise informed choices, would be a regressive step for the economy. Foreign direct investment restrictions on players who can hold their own inventory are sought to be lifted, but there must be a majority Indian partner and all products have to be made in India. This seems like a leaf out of India’s retail FDI policy that has similar procurement diktats that are not easy to meet or monitor. E-tailer costs are also likely to rise on account of proposed norms on storing and processing data locally, while consumers and firms could both question the plan to stipulate payments via Rupay cards. The proposed e-commerce policy could drive away those planning online retail forays — and the opportunity to create jobs and benefit consumers would be lost.
📰 Data localisation is no solution
The data protection bill is an opportunity for India to be a partner under the CLOUD Act
•Calls for data localisation are not new. It has been a mainstay of Indian policymakers’ demands from foreign technology companies. The Justice Srikrishna Committee in its report accompanying the draft Personal Data Protection Bill released on July 27 notes that eight of the top 10 most accessed websites in India are owned by U.S. entities. This reality has often hindered Indian law enforcement agencies when investigating routine crimes or crimes with a cyber element. Police officials are forced to rely on a long and arduous bilateral process with the U.S. government to obtain electronic evidence from U.S. communication providers. The committee seeks to correct this.
User data
•The Bill calls for a copy of user data to be mandatorily localised in India, believing that it will “boost” law enforcement efforts to access data necessary for investigation and prosecution of crimes. If passed in this form, however, the law will be counterproductive, hurting law enforcement efforts and undermining user rights in the process.
•The last few months have witnessed an amplification in data localisation demands, with the Reserve Bank of India, to take one example, calling for local storage of financial data.
•A fundamental error that the Srikrishna Committee seems to have made is in its belief that the location of data should determine who has access to it. The reason that Indian law enforcement relies on an outdated Mutual Legal Assistance Treaty (MLAT) process to obtain data stored by U.S. companies is because the U.S. law effectively bars these companies from disclosing user data to foreign law enforcement authorities. Technology companies are allowed to share data such as content of an email or message only upon receiving a federal warrant from U.S. authorities. This scenario will not change even after technology companies relocate Indian data to India.
•The committee too acknowledges that data localisation is not a perfect solution. Its decision is borne out of hope that when questions of data access are determined, their storage here will give rise to a strong Indian claim. This is not an unreasonable expectation, albeit a weak one.
•Even if Indian authorities force compliance from U.S. companies, it will only solve a part of the problem. The draft bill mandates local storage of data relating to Indian citizens only. Localisation can provide data only for crimes that have been committed in India, where both the perpetrator and victim are situated in India. Prevalent concerns around transnational terrorism, cyber crimes and money laundering that the committee rightly highlights will often involve individuals and accounts that are not Indian, and therefore will not be stored in India. For investigations into such crimes, Indian law enforcement will have to continue relying on cooperative models like the MLAT process.
•Questions around whether access to data is determined by the location of the user, location of data or the place of incorporation of the service provider have become central considerations for governments seeking to solve the cross-border data sharing conundrum. The Clarifying Lawful Overseas Use of Data (CLOUD) Act, passed by the U.S. Congress earlier this year, seeks to de-monopolise control over data from U.S. authorities. The law will for the first time allow tech companies to share data directly with certain foreign governments. This, however, requires an executive agreement between the U.S. and the foreign country certifying that the state has robust privacy protections, and respect for due process and the rule of law.
•On procedural questions of law enforcement access, the draft Bill falls very short. Even if it were to be passed, legacy provisions such as Section 91 of the Code of Criminal Procedure (empowering police to access any “document or thing”) will continue to apply — bereft of review or oversight by a judicial or independent authority. The Committee, while imposing data localisation, should have also necessarily tackled how this data will be obtained by police authorities — whether within its mandate or not.
•The CLOUD Act creates a potential mechanism through with countries such as India can request data not just for crimes committed within their borders but also for transnational crimes involving their state interests. Access to data would be determined by where the user is located and the reasonableness of claim that a country has in seeking her data. The draft Bill was an opportunity to update India’s data protection regime to qualify for the CLOUD Act. The Bill, while recognising principles of legality, “necessity and proportionality” for data processing in the interest of national security and investigation of crimes, fails to etch out the procedural rules necessary for actualising these principles. Even rudimentary requirements such as a time limit for which data can be stored by law enforcement are missing from the Bill.
Onus on Parliament
•In other words, the Committee has sought to localise data for law enforcement but categorically refused to afford this data any procedural protection. The Committee has instead placed the onus on Parliament to enact another comprehensive legislation for surveillance reform.
•With the highest number of users of American technology offerings and a high number of user data requests, second only to the U.S., India is a clear contender for a partnership under the CLOUD Act. If New Delhi recognises this opportunity and reforms laws around government access to data, both the Indian user and law enforcement will be better served in the long run.
📰 Drafting a data protection Bill
On the right to privacy and the right to be forgotten
•The draft Personal Data Protection Bill, 2018, recognises privacy as a fundamental right. It has provisions to protect personal data as an essential facet of information privacy. The objective of the Bill is to balance the growth of the digital economy and use of data as a means of communication between persons with a statutory regime that will protect the autonomy of individuals from encroachments by the state and private entities.
•The Bill applies to the processing of personal data where such data have been collected, disclosed, shared or otherwise processed within India. It includes the processing of personal data by the state, any Indian company, any Indian citizen, or any person or body of persons incorporated or created under Indian law. The Bill also brings within its ambit the processing of personal data by data fiduciaries or data processors located abroad in connection with business, systematic activity of offering goods or services to data principals, or profiling of data principals within the territory of India.
•The proposed law defines personal data as information relating to a natural person. Breach of personal data involves unauthorised or accidental disclosure, acquisition, sharing, use, alteration, destruction, loss of access to personal data that compromises the confidentiality, integrity or availability of personal data to a data principal. The Bill recognises the possibly transgender status of data principals. The Srikrishna Committee has complied with the Supreme Court’s suggestion that collection, processing and storage of personal data should be limited to the stated purpose, which has to be clear, specific and lawful. An opportunity has to be given to the data principal to withdraw consent.
•The Bill mandates that data fiduciaries should retain personal data “only as long as may be reasonably necessary to satisfy the purpose for which it is processed”. There should be a periodic review done to check if continued storage of data is necessary.
•The Bill allows processing of personal data for “prompt action” only if it is necessary for any function of Parliament; or any State Legislature to render service or benefit to citizens; or in response to any medical emergency to the data principal; or in cases of epidemic, outbreak of disease, disaster or breakdown of public order.
•The Bill includes the ‘right to be forgotten’, which is the right of a data principal to restrict or prevent continuing disclosure of personal data by a data fiduciary.
📰 Private sector investment may see rise
Value of new project announcements by private sector increases for first time in 2 years: CMIE data
•The value of new project announcements by the private sector rose for the first time in two years in the June 2018 quarter, analysis by The Hindu of the latest data by the Centre for Monitoring Indian Economy (CMIE) showed. Within this, the bulk of the announcements were made by foreign companies.
•Private sector new project announcements, worth ₹2.02 lakh crore in the June 2018 quarter, grew 43% over what was announced in the same quarter of the previous year, according to the data.
•This is the first quarter of growth in this category since June 2016.
•In contrast, the government announced new projects worth ₹27,453.4 crore in the June 2018 quarter, a contraction of 77.6% over the June 2017 quarter.
•This marks the fifth consecutive quarter of contraction in the value of government new project announcements.
•As a result, private sector announcements made up 88% of all new project announcements in the quarter, the highest proportion the sector has achieved since September 2003, the earliest period for which the Centre for Monitoring Indian Economy has data. While new project announcements in themselves do not portray a complete picture of investment activity in the country since many of these projects might not reach completion, analysts do say that such announcements reveal the intent and mood —especially of the private sector — for the immediate future.
Note ban, GST impact
•“There were two major issues due to which the private sector got a jolt — demonetisation, to an extent, and also GST,” Abhishek Rastogi, partner, Khaitan & Co told The Hindu.
•“Now, I think, the impact of these two massive changes are not there at least on the downside. That’s why the revival of the private sector, and specifically MSMEs, should take place. If you see, a lot of these investments are by medium-sized entrepreneurs. The government has taken a few steps towards the revival of MSMEs.”
Foreign firms to invest
•Within private sector new project announcements, the bulk of the growth was due to the announcements made by foreign companies, the data showed.
•New project announcements by the Indian private sector accounted for 30.4% of all announcements made by the private sector in the June 2018 quarter.
•The foreign private sector, in comparison, accounted for an overwhelming 69.6% of such announcements.
📰 In the city of saris, Khadi goes organic
Enterprising producers in Chirala have taken a green turn
•Weavers from Chirala, which derives its name from word chira (sari), have carved a niche for themselves, making silk and cotton fabrics for men and women for centuries.
•But the going has been tough in the era of global textile competition, and members of GenX from the community from across the State have been quitting the profession. Many weavers have also been hurt by the GST regime.
•But a group of enterprising weavers in the handloom town want to show that some innovation can make things different. They have taken to making organic Khadi dress material for women in a big way.
•Even if the khadi dress material is a bit costly, they are in great demand as they are free from chemicals that harm the skin. The dress material made with natural dyes are particular favourites, say the weavers. They have been producing environment-friendly dress material in a span of just three days. What makes some dress material special is that it carries seed remnants.
Guntur cotton
•The weavers first came out with eco-friendly khadi shirting material for men. “Encouraged by the good response, we now make dress material — top, salwar and dupatta — from good quality cotton produced by farmers from neighbouring Guntur district,” said Indira Abhyudaya Silk Handloom Weavers Society president B. Shyam Sundar.
•But saris are never out of fashion, and the target audience includes youth. “We will soon come out with khadi saris as well, anticipating a good demand from women of all ages,” adds S. Aruna, an expert at producing dress material from the Janarpeta area.
•With elections round the corner, new demand is expected. We hope to bag orders from politicians as well as party workers, said B. Balashankar Rao, who takes his consignment of specially-made khadi dress material to “Neta Bazaar.”
Still mostly offline
•Though these weavers had launched online marketing, the bulk of the sale happens through Neta Bazaar in Chirala.
•The clothes are also popular at handloom expos organised by the Union and State Governments, according to weavers.
