The dichotomy between the right to privacy and the right to security in India.

Introduction

The functions of the state and the right to privacy have to be balanced. National security is essential for the state, and the privacy of the citizens in matters of national security should not be inference in performing its functions. However, the question that arises is to what extent can this infringement of privacy be invalidated in the interest of national security.

The development of technology was given a spark in the late 20th century, which led the way to the technological boom and introduction of artificial intelligence. Ever since then, technology has always been one step ahead of the laws that govern the extent to which personal information and data can be collected. Due to this, cyber-crimes have been rapidly growing, and involvement and the misuse of this digital technology have always been part and parcel of these crimes. The state, on the other side, claims to be dealing with the problem by invading the privacy of individuals to ensure the security of the state. The motive behind this is to ensure national security and the protection of the public at large. The parody between the right to privacy and the right to security has been debated and interpreted, and many judgments regarding privacy and the constitutional powers given to the state to ensure national and individual security have collapsed into one another. Therefore, this paper will look into the extent to which the state can invade an individual’s privacy and where the borderline can go up.

Security of the state and its citizens is obviously very important, but the collateral damage that it comes with raises the question as to whether these measures are used is necessary to ensure this security since misuse of power to feed the needs of the economy cannot be one of them. With the advancement of technology, electronic data has become widely accepted even in the judiciary, but the collection of these electronic devices, which have personal data, is vastly misused due to the lack of proper legal framework and enforcement. This lack of clarity between the state and its citizen on what data exactly is being taken or watched over and what it’s been used for. This leads to the next question as to whether this collection of data is actually helping in fighting crime and ensuring the security of the state. Or whether the overuse of data privacy and data protection is hindering the state’s ability to protect its citizens.

What is national security?

The national security of the state has no clear definition as to what amounts to security, but we know that it means the protection of the government, its people, economy, and institutions from an internal or external threat either from an organization or person within the territory of India or from outside. This security is essential since, without it, the citizens of the country and the government as a whole would be at risk. For example, any attack on the public or the government through the ways of bombing, mass firing, or hacking into the government data for terrorist activities. All of which can cause great damage if not prevented.

The supreme court has recognized that the internet is a source of both personal and public information. It is structured in a way where it can easily be exploited by terrorists to cause destruction to society. While it is understood that the right to privacy is a fundamental right under articles 19 and 21 of the constitution, the courts have emphasized that the right is not absolute and it is to be balanced with the needs of the state.  The extent to which the right to privacy has to be given up is to be calculated on the bases of necessity and proportionality.

How does the state ensure the security of the state by collecting data?

 Through the advancement of artificial intelligence collection of data has never been easier, data is said to be the new oil, and therefore the state, as well as 3rd party organizations, strive to seek this data for their own benefit. The new data privacy bill understands the value of this and refers to data as a person’s personal property. And therefore, it has strict laws governing the acquisition of this data. For the state, however, it is necessary as the sovereignty and integrity of the state are at stake. The state does this in the following ways such as the collection of data, storing it, and then structuring it for alteration and combination for gaining inside information to prevent catastrophic incidents that may happen. Further, the state can also restrict and delete information for the same when it concerns national security. This means the state has access and an advantage when it comes to foreseeing crimes. The inside information that is granted to the state works as an advantage in their favor, and this will lead to gaining vital information that could possibly prevent the entire crime from happening.

Laws that govern the state in acquiring personal information 

When it comes to the laws that govern the state from acquiring data, the new data protection bill ensures that the state can only look into personal information with proper reasoning and procedure. Once this bill comes into force, it will replace section 43A of the information technology act 2000. Basically, the new bill gives rights to the individual or the principal for the data that is being processed and additional duties such as providing reasons for which the data is being processed, and enterprises will have further fiduciary duties that will have to be followed. this will bring about transparency between the state, enterprises and the individual. This will ensure the prevention of possible exploitation by the state.

In the case of KS Puttaswamy, the justices reaffirmed the fundamental right to privacy. Although the judgment justice DY Chandrachud stated that “creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state.” [1]

Going back to the data protection bill 2021, the bill is silent when it comes to providing provisions for surveillance reforms. In 2018 Justice BS Srikrishna’s committee had constituted the first draft of the data protection bill, and back then, it had stated that there was no law in India that authorized non-consensual access to personal data and had further criticized that as to what was the purpose behind the data protection bill if it had not regulated the mass surveillance organizations such as the Crime and Criminal Tracking Network and Systems (CCTNS), the Central Monitoring System (CMS) or the National Intelligence Grid (NatGrid).[2]

Further, there is the exemption the central government gives to departments to not necessarily follow the provisions of the data protection bill. Clause 35 of the bill provides for the exemptions for the bill where in the 2018 bill it had conservatively exercised it by using the words legality, necessity, and proportionality[3], after which in 2019 it was changed to “necessity” and “expediency” [4] which had further put the privacy of the individual at great risk. And in the 2021 draft, instead of rectifying the issue, it completely exempted these government surveillance departments from any liability.

Conclusion

National security and data privacy are two integral parts of the constitution. One is protected under article 21 and the other under article 51. Although both of them condescend to each other at face value, each of them has to be balanced by the laws that govern them to the implementation of these laws by the executive. From the above research, the author has concluded that with regard to the laws that govern the state from data collections, there is more immunity given to the state, and due checks and balances in cases of exploitation are not implemented. Further, the author has also concluded that the security of the state is essential to the protection of its people, and there should be no interference when it comes to doing their job. Although, unlike the laws in India, where there is complete exemption from any liability, the author suggests the laws that are currently being followed by the UK. Where although there is no interference, it provides for due process and authorization from the minister of the crown.

By Bevin Pereira


[1] Justice K. S. Puttaswamy and Anr. vs. Union Of India And Ors, (2017) 10 SCC 1.

[2] ‘National security, at the cost of citizens’ privacy,’ Apar Gupta, Vrinda Bhandari, 2021.

[3] Clause 35, Data Protection Bill 2018.

[4] Clause 35, Data Protection Bill 2019.

Limitations of International Climate Change Law

Climate change is the biggest threat we will be facing in the future. It is to be a huge threat in the future if we do not take any initiative to fix this problem. Climate change, also known as global warming, refers to the rise in the earth’s temperature. This is caused due to the emission of excess emission of greenhouse gases (GHG) such as carbon-di-oxide into the atmosphere, which is caused due to various factors such as burning fossil fuels, emissions from vehicles, and gases released from livestock animals. These gases that are emitted are trapped in the atmosphere, which in turn contains the heat from the earth, causing the temperatures to rise gradually. A report by the IPCC (intergovernmental panel on climate change) states that since the 1950s, there has been a significant rise in sea levels and the concentration of greenhouse gases in the atmosphere. Therefore, if we do not make a significant difference in the way we use our resources, the damages could be irreversible.

REGIMES INITIATED BY THE UN TO CURB CLIMATE CHANGE.

In 1992 the United Nations Framework Convention on Climate Change (UNFCCC) was adopted at the Rio Conference; the main aim was to provide a primary framework on how to curb climate change. However, the UNFCCC did not make a statutory framework for countries to follow but was made to encourage them to come together to take specific measures in unison. It did not aim to eradicate the GHG entirely but to stabilize the current output so that we would not further be contributing to climate change. Due to this, the UNFCCC was criticized for neither being clear on the commitments that were to be followed nor making an initiative to reduce the GHG in the atmosphere.

KYOTO PROTOCOL

After several meetings being held after the 1992 Rio conference and the UNFCCC being adopted, due to the inefficient change in the reduction of GHG, On December 11, 1997, the KYOTO PROTOCOL was initiated in Japan. The protocol, this time, aimed at “quantitative restrictions on emissions from industrialized economies” this meant that countries that had a more developed economy had to take up bigger initiatives to reduce the GHG in the atmosphere. Although it gave the countries flexibility as to how to implement their duties, it had a strict structure on the form and nature of their commitments and had to meet their said targets. Unlike the previous initiative, the KYOTO PROTOCOL started looking like reducing climate change could be achieved. Sadly, this initiative failed despite having support from the biggest countries in the world. The reason was due to a couple of contributing factors (i) there was insignificant emission reduction on a global scale. (ii)did not get all the countries to participate in this agreement, and (iii) the required targets were not achieved within the time period. And ever since, the GHG in the atmosphere has kept on increasing, making climate change a reality.

PARIS AGREEMENT

On December 12th, 2015, the Paris Agreement (PA) was adopted. This was the most recent step taken up by the UN to curb climate change. This agreement aimed to get global involvement to maintain a global temperature rise below 2 degrees Celsius, which was above the pre-industrial level. Similar to the first initiative by the UNFCCC, the PA did not keep any target on reducing the emission of GHG but insisted on keeping a stable global temperature well below 2 degrees Celsius for the next century. This agreement can be legally binding if more than 55 parties representing at least 55% of the global emissions have been ratified. Furthermore, the PA aims to make progress by making parties into preparing a “nationally determined contribution”(NCDs) where each party has to come up with an agenda as to what the party would archive and consistently keep enhancing their plans. I think, in my opinion, the PA is a great initiative by the UNFCCC, but for this regime to be successful more countries have to come together to make an impact globally.

LIMITATIONS ON INTERNATIONAL CLIMATE CHANGE LAW

Ever since the issue of climate change majority of the laws related to international climate change have been implemented under the 1992 UNFCCC, Kyoto Protocol, and the Paris Agreement. Although the climate change regimes by the UN constitute the majority of the laws that are applicable to climate change, the rules and regulations under the general international law, policies and regulations by the state, and Judicial decisions by the ICJ are also relevant to climate change. In a publication by oxford university press on International Climate Change Law, the author brings about two broad perspectives on the climate change problem, i.e., (i)climate change as an environmental problem and (ii)climate change as an economic problem. Using these perspectives, we can understand the limitations of international climate change law in regard to mitigation and adaptation.

(i) Climate change as an environmental problem

Considering the biggest problem we’ll face due to climate change is the environmental problem. Taking into consideration the Paris Agreement where the aim is to reduce GHG emissions by limiting the temperature below 2 degrees Celsius but for a state to archive this, it has to take into three factors, (i) the level of temperature deemed safe and (ii) the concentration levels necessary to prevent warming from exceeding the temperature limit and (iii) the choice of an emission pathway to achieve the necessary concentration level. To achieve this, considering these parameters, it would likely require stabilization of GHG concentration not more than 450 ppm. At this rate, we would see a 40-70% fall only by the year 2050. For this to be possible, we will have to depend on strict stringency, a stringency where we see participation from a lot more states. Also, we need to ensure all three factors to be considered should be effective at all times. If one of them is a little complacent, it will allow us to push the goal away from us. This intricate coordination within the states to reduce cumulative GHG in the environment while ensuring the factors and measures are to be kept would be equivalent to solving an immensely complex equation. Therefore, the less stringent these commitments are, we are only further contributing to climate change.  

(ii) Climate change as an economic problem

the policies implemented by the UN are to achieve an efficient outcome, where the outcome comes with the highest net benefits. The reduction of emissions should be made if the benefits outweigh the costs. But calculating the cost and benefit is extremely difficult given that the tools that are used to reduce the cost and calculate the cost and benefit are outsourced. If a state can reduce the GHG emissions in a more cost-effective way than the other, then the state should shift some of the pollution reduction to other countries with lower mitigation costs so that the emissions can be reduced wherever it can be done most cheaply. Two-thirds of the GHG that is being released contain co2, although the UN insists that in order to maximize cost efficiency, it encourages the state to focus on gases that are least expensive. Although states have various opinions in regard to this problem. Out of all the states that are to be affected by climate change, all of them are impacted in a different way. The states belonging to the coastal areas are more adversely affected due to the rise in sea levels compared to more developed state, which is far more economically dependent than the ones who are directly affected by this. Even though the contributors to this GHG are far more in these developed states. And many developing countries still have situations they would have to deal with now and hence would be hesitant to make a sincere contribution to the mitigation of GHG.

Need for Human Rights based approach along with the emerging concept of Climate Change Litigation.

Every year more and more people are getting to know about climate change and the impact it can have on the earth if nothing is done about it. And due to this, there have been a lot of responses to the treaties formed and the law and policies implemented out of these treaties. And also gone up to the extent of filing lawsuits against the government, claiming it as climate change litigations.

The main objective of these litigations is to bring up the liability on people or a person who is responsible for contributing excess amounts of GHG or has impacted the lives of others by violating the existing law.

The stages of exercising this are:-

(i)the plaintiff has to establish the grounds on which he or she is filling the petitions.

(ii) the defendant should be a party to seeking redressal

(iii) the appropriate forum has to be approached

With the implementation of treaties and various policies, countries that emit the largest amount of GHG mitigate the problem of climate change. The best way for these states to have an incentive to help the environment by implementing these policies as a priority is by public pressure, especially when there is no binding rule as of now, which makes it mandatory. Therefore, unless sire restricting international climate change laws are not implemented as a whole, the scope of eradicating climate change merely stays a myth.

By Bevin Pereira

Selling a property with Power of Attorney 

Who is a power of Attorney?

A Power of Attorney is a legal document that gives a certain individual the authority to act on behalf of and in the signer’s name. The person who executes the document is referred to as the “principal,” and the person who acts on behalf of the principal in interactions with third parties is referred to as the “agent.” An agent is formally designated to represent the principal in a single transaction, a series of transactions, or to manage his or her affairs under a deed of power of Attorney. The authorizations listed in the document, as well as the restrictions within, are the source of the agent’s rights.

The concept of the power of Attorney is discussed under the Powers of Attorney Act, 1882, and the Indian Stamp Act, 1899. These legislations define POA as an instrument empowering a specified person to act on behalf of the person executing the transaction. There are two types of POA: General Power of Attorney (GPA) and Special Power of Attorney (SPA). 

The agent’s appointment is in a fiduciary capacity. Thus they are not permitted to utilise the power of Attorney for their own gain. It is typically reversible at the discretion of the principal, with the exception of situations when the power of Attorney is combined with interest (or executed for consideration).

Time period for validity of power of Attorney

Power of Attorney is typically valid until the purpose for which it was executed unless a time limit is included in the document. It is advisable to have a statement from the principal stating that the power of attorney deed is still valid and in effect, if the powers given under it are being used after a period of time has passed.

Registration of transfer via power of Attorney 

Power of Attorney does not provide or revoke any ownership interest in real property. Hence it is typically not required to be registered. However, the Madras High Court has ruled that the power of Attorney must be compulsorily registered when an agent wants to transfer immovable property worth more than 100. Therefore, for the transaction of all properties, registration of power of Attorney is mandatory. 

Sale of property by an agent 

The agent is given authority by the power of attorney deed, and he or she should exercise that authority precisely within the parameters of those powers. All activities taken by the agent within the scope of his or her power shall be legal and enforceable against the principal.

Such a sale made by the agent will be lawful, is binding on the principal, and will convey a proper title to the purchaser if the deed of power of Attorney authorises power to sell the principal’s property and to execute and register relevant documents in that regard (s).

Legality of selling property with power of Attorney 

A deed of power of Attorney and the sale agreement were regarded as finalising or confirming the sale for several years, which was a common practice in some Indian States. There were no recorded sale deeds transferring the properties. There cannot be a valid conveyance under a sale agreement or power of Attorney because, as courts have repeatedly held, these alone do not confer any right or title over immovable property.

The Supreme Court sought comments from the governments of Delhi, Haryana, Punjab, and Uttar Pradesh about the cessation of such a practice in the matter of Suraj Lamp & Industries Private Limited vs. State of Haryana. The four states agreed that the execution of a power of attorney and sale agreement alone does not constitute a sale; valid deeds of conveyance must also be signed and registered. As a result, on October 11, 2011, the Supreme Court issued final orders. The Supreme Court explicitly said in its decision that the ruling will not in any way impact legitimate transactions carried out in accordance with power of attorney and sale agreements.

Conclusion 

As a result, transactions carried out within the parameters of a deed of power of Attorney, an agreement for sale, or a sale deed (or any other deed of conveyance or transfer) would be legal, enforceable, and binding on the parties involved.

By Ananya Bhat

Grounds for resisting foreign awards under Part II of Arbitration and Conciliation Act of 1996

Part II of the Arbitration and Conciliation Act of 1996 deals with Foreign Awards based on the New York and Geneva Conventions. An arbitral award will be recognized to be a foreign award if it bears some foreign elements in it or has one or more of the following factors:

  • The award must be made in a foreign country
  • The subject matter of the arbitration agreement should involve an international transaction, which means it should be related to global trade, commerce, investment, etc.
  • The minimum one of the parties to the arbitration agreement has to be a foreign national.
  • The award must be made in accordance with foreign law.

In order to attain and enforce a foreign arbitral award, section 47 of the Arbitration and Conciliation Act makes it mandatory to produce before the authorized Court the required documents. Such as the original award or a duly authenticated copy along with the original agreement in accordance with the country of origin where it is made. The evidence is also essential to prove the award is a foreign award.

When two parties come into a dispute, and the judiciary transfers the case to the tribunal, the parties tend to appear before the arbitral tribunal, and the decision that the tribunal announces is called the“award.” But there are specific grounds that are enforceable for resisting the foreign awards, which are mentioned under the part II of this Act. 

Incapacity Of Parties: If the parties of the contract become incompetent to come to an agreement, then on that basis, the awards can be resisted. 

Arbitration Agreement: If the arbitration agreement comes out to be an invalid agreement, then the awards become suitable for rejection.

Dispute: In certain situations, the disputes which arise between the competent parties go beyond the scope of the Arbitral Tribunal, which means when it does not come under the Arbitration Law, the award gets rejected.

Justice:  If the tribunal does not follow the Principles of Natural Justice, then it would amount to a violation of the rights of the parties, and thus awards will be terminated. On the other hand, if there exists any mischief in forming the constitution of the arbitration, then it will get turned down. So, these are the grounds for resisting the Foreign Awards under part II of the Arbitration and Conciliation Act of 1996.

The period of limitations for setting aside the award:

  • 3 months from the date of receipt of the award.
  • However, this period can be extended for a further period of 30 days on sufficient cause.

By Esha Nath

Draft Joint Venture Agreement Format & Required Documents in India

What is A Joint Venture Agreement?

A joint venture is widely regarded to be a technical and financial partnership that takes the shape of initiatives, acquisitions, or partnerships with already established businesses. Indian joint ventures typically involve two or more parties, one of whom may not be a resident, forming an Indian private or public limited company and holding predetermined shares of its capital. The main provisions of a joint venture agreement relating to the shareholders’ rights to transfer or sell their stock in the joint venture company. Company, partnership, or joint operating agreements are all examples of joint ventures.

When two or more entities join forces to do business or engage in an economic activity together, a joint venture agreement is a legal instrument. The parties concur to contribute equity to a new corporation and to divide the profits, costs, and control of the new company in proportion to their capital contributions. The partnership may be for an ongoing corporate relationship or just one particular endeavour. JVs could be contractual, structural, or perhaps both.

Creating a distinct legal entity in conformity with the agreement of two or more parties is the process used in corporate joint ventures. The parties agree to contribute funds or other resources to the assets or other capital of that legal body as their share of the contribution. The best JVs for this structure are those with a wide scope and duration.

The contractual JV may be utilized in situations where the creation of a separate legal entity is not necessary or is not practical. This contract may be signed for a brief project with a specific activity or for a temporary joint venture.

Documents required in the formation of JV

There are three primary documents required for creating JVs: –

1.Memorandum of Undertaking (MoU) or Letter of Intent (LoI)

It is a non-binding agreement that the parties use to set out their responsibilities and sketch out a plan for the future in the initial phases of negotiation.

2.The definitive agreement essentially lays out the parties’ respective rights and obligations with regard to the JV and specifies how they will behave themselves when running and managing the JV. Another goal is to predict, as much as feasible, what will happen in the event of difficulties or deadlocks.

3.Other Agreements like Technology transfer Agreements etc.

The agreements that effectuate the transfer of whatever the JV members are donating to the joint venture for the fulfilment of the joint venture’s objectives will be among other agreements that are equally crucial.

By Ananya Bhat

Ombudsman in India: An Analysis of Lokpal and Lokayutkas

Ombudsman, Mal-administration is like a termite that eats away at a country’s basis. It obstructs the administration’s ability to complete its mission. Corruption is the basis of the dilemma that our country is experiencing. Despite the fact that India has a plethora of anti-corruption bodies, most of them are not truly autonomous.

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Plea Bargaining in India 

There are a vast number of litigations, pre trials and back log cases pending before the courts in India. Undue delay in hearing the matters often amounts to questioning of the credibility and reliability of the Indian Judiciary. In order to reduce the pendency and backlogging of cases, and also alleviate the sufferings of the undertrial prisoners, the Criminal Law (Amendment) Act (2005) has introduced sections 265A- 265L in the Code of Criminal Procedure (CrPC). Plea bargaining is a beneficial induction for reforming the criminal justice system in the country. 

The pre-trial negotiation between the defendant and the prosecution whereby the defendant pleads guilty and the prosecution makes certain concessions is the general meaning of plea bargaining. The concession can be relating to the sentence or the seriousness of charge. It is a contractual agreement between the prosecution and the defendant and this contract can be enforced until approved by a judge. 

Plea Bargaining in USA

Plea bargaining is a crucial feature of the American Criminal Justice system. In the landmark case of Brady v. United States, the constitutionality of plea bargaining was considered by the SCOTUS who ruled in the positive. The court recognised the mutuality of advantage for the prosecution and the State and erased the fears of the real guilty persons escaping lightly under this mechanism. A voluntary guilty plea is not just an admission of past conduct, rather, it is the defendant’s authorisation for the judgement of conviction without a right to trial before a judge. The Supreme Court also found that awarding lesser punishment is not invalid and is, in fact, beneficial for the State and the accused enters the correctional system with the frame of mind that enables success of rehabilitation. Similar position was reiterated in other notable cases like Hutto v. Ross, Backledge v. Allison and Chaffin v. Stynchcombe

Plea bargaining is generally of two distinct categories: charge bargaining and sentence bargaining. The accused pleads guilty, not guilty or plea of nolo contendere in the United States. In India, the concept of plea bargaining is derived from the doctrine of nolo contendere. 

Right to speedy trial and plea bargaining in India 

In the landmark case of Hussainara Khatoon v. State of Bihar, the Supreme Court noticed several under- trial prisoners and took cognisance of the enormous delay in the disposal of criminal matters in the Courts. It lamented the travesty of justice for several poor under- trials and ruled that speedy trial is the essence of criminal justice. Further, delay in trial constitutes denial of justice. 

In India, the concept of plea bargaining was not recognised as such. Reference was found in section 206(1) and (3) of CrPC and 208(1) of the Motor Vehicles Act, 1988. The Supreme Court assessed the importance of plea bargaining in Murlidhar Meghraj Loya v. State of Maharashtra (Per Krishna Iyer, Goswami JJ) and Kasambhai Abdulrehmanbhai Sheik v. State of Gujarat (Per Bhadwati, Sen JJ). However, the court ruled that the procedure of plea bargaining was unreasonable, unjust and violative of Article 21 of the Constitution prescribing that no person shall be deprived of life or personal liberty except according to procedure established by law. This, however, restricts to the context of entering into plea bargaining in an informal way and without legal sanction. 

Objections to plea bargaining in India

It was contended that the introduction of plea bargaining is counterproductive in Indian criminal jurisprudence because the social condition of the country viz., economic and educational conditions does not justify the introduction of the concept. Therefore, the poor will be the ultimate victims of plea bargaining. However, the Law Commission was of the opinion that such criticisms are unwarranted as plea bargaining saves aa lot of time, cost and resources and also makes rehabilitation and reformation of offenders easier. It also concluded that plea bargaining must be restricted to “less serious” offences and socio- economic offences are offended. 

Chapter XXI-A of the CrPC

Sections 265A to 265L of the CrPC deals with plea bargaining. Section 265A lays down the applicability of plea bargaining and clearly enunciates that it is available only for offences whose punishment is lesser than 7 years. It excludes offences whose punishment is death, imprisonment of life, imprisonment greater than 7 years and socio- economic offences against a woman or child lesser than fourteen years. 

Section 265B allows the accused to file an application of plea bargaining in the Court which is accompanied with a sworn affidavit as to the voluntary confession of the offence, while the case is subsisting in the Court. The guidelines for satisfactory disposition among the parties is laid down in Section 265C. The Court delivers a judgement on plea bargaining under Section 265F and the finality of the judgement is stated under Section 265G of CrPC. The non- obstante clause is contained in Section 265J. 

Reference:
  1. Law commission of India, One Hundred Forty Second Report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining (1991).
  2. Rosie Athulya Joseph, Plea Bargaining: a means to an end, Manupatra
By Ananya Bhat