In India, minorities are consistently disregarded, although there are now several policies in place to improve their situation. To safeguard minorities, the government has created several programs and legislation. Minority, which means “small in number,” is derived from the Latin word “minor,” which is combined with the suffix “ity.” Minorities experienced a variety of issues, including issues with receiving protection, issues with racial tensions and riots, issues with a lack of representation in the political and civil services, and issues with separatists.
Failure to adhere to secularism in relation to the creation of a single civil code is another issue. In India, minority rights guard against discrimination based on a person’s ethnicity, culture, language, or religion. Minority members must be able to use their own names, study and utilize their native tongues, and openly express their identity. Therefore, minority rights guarantee non-discrimination, protection from violence based on identity, equality before the law, participation in political and public life, and opportunities for cross-border and intrastate collaboration with other communities and organizations. The fundamental component of human rights is the right of minorities. They encourage respect for variety and tolerance. In India, the majority consists of Hindus, their population includes more than 80% of India’s population. The minority population consists of Muslims, Christians, Sikhs, and Jains. Following are some of the articles of the Constitution relating to the protection of minority rights:
Article 14 of the Constitution talks about equality before the law for all the citizens of India without any discrimination. It means all the citizens of India regardless of their religion, caste, creed, race, and colour will be treated equally before the law. This ensures that minorities also have equal representation before the law.
There are two articles under cultural educational rights in the Indian Constitution- Article 29 and Article 30. Article 29 of the Constitution states the protection of interests for minorities. Its clause (1) states that any group living within the jurisdiction of India is entitled to preserve and promote its own language, script or literature, and culture. Clause (2) of it prohibits denial of admission to educational institutions which are aided by the state on the ground of race, caste, and religion or language protection.
Article 30(1) gives a provision to the minority communities to establish and administer an educational institute of their choice for the protection of their culture and heritage. According to Article 30(2), the government should not discriminate against any educational institution run by any minority group regardless of religion, or language, while giving aid.
Other than these there are various commissions for safeguarding minorities:
The National Commission for Minorities has been established as a statutory body under the National Commission for Minorities Act, of 1992. As per Section 9(1) of the Act, the Commission is required to perform functions that include monitoring of the working of the safeguards for minorities provided in the Constitution and in laws enacted by Parliament and the State Legislatures; making recommendations for effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the State Governments, looking into specific complaints regarding deprivation of rights and safeguards of minorities and taking up such matters with the appropriate authorities, etc.
The NHRC, India is a statutory body constituted under the Protection of Human Rights Act, 1993, and is mandated, to enquire suo-motu or on a petition presented to it regarding violations of human rights, review the safeguards provided under the Constitution and domestic laws, study international human rights treaties, promote research in the field of human rights, spread human rights literacy among various sections of society, and synergise the efforts of NGOs and institutions working in the field of human rights. It also has the authority to grant interim relief, recommended payment of compensation or damages and the initiation of proceedings for prosecution or disciplinary action against errant public officials.
Authored by Ishani Shome, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
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The Armed Forces Tribunal is a military tribunal formed under The Armed Forces Tribunal Act 2007 (established on 08 Aug 2009) and is empowered to adjudicate appeals against any order, decision, finding or sentence passed by a Court-Martial or any matter connected. The Armed Forces Tribunal adjudicates on disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
The scope of the act deals with service matters in relation to all persons subject to The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957, including their dependents, heirs and successors, in so far as they relate to service matters. The Service matters mean all matters relating to the conditions of their service and shall include:
It shall not include matters relating to orders issued under section 18 of The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
Section 18 in The Army Act, 1950:
Tenure of service under the Act. Every person subject to this Act shall hold office during the pleasure of the President. Paramilitary forces are not considered to be a part of the Armed Forces Tribunal jurisdiction. AFT will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India.
The tribunal is composed of:
The principal bench of the Armed Forces Tribunal is located in New Delhi.
Armed Forces Tribunal has regional benches located in the cities mentioned below:
Chandigarh – Punjab, Haryana, Himachal Pradesh and Chandigarh
Lucknow – Uttar Pradesh and Uttarakhand
Kolkata – West Bengal, Bihar, Jharkhand, Orissa and U.T. of Andaman and Nicobar Islands
Guwahati – North-East Region
Chennai – Tamil Nadu, Andhra Pradesh and Pondicherry
Kochi – Kerala, Karnataka and Lakshadweep
Mumbai – Maharashtra and Gujarat
Jaipur – Rajasthan
Jabalpur – Madhya Pradesh and Chhattisgarh
Jammu – Jammu and Kashmir
Regional benches of Chandigarh and Lucknow have three benches each while the remaining have a single bench.
For the purpose of adjudicating an application, The Tribunal shall have the same powers as are vested in a Civil Court under CPC, 1908 while trying a suit in respect of matters namely summoning, receiving and production of documents, evidence on affidavit, requisition of any public document under section 123 and 124 of the Indian Evidence Act, issuing commissions, reviewing its own decisions, dismissing, setting aside any other order etc.
The Tribunal shall decide both questions of law and facts.
All proceedings before the Tribunal shall be deemed to be Judicial proceedings.
The Tribunal shall exercise power of appeal against any order, decision, finding or sentence passed by a court martial or any matter where the findings of the court martial is legally not sustainable, involves wrong decision on a question of law or any material irregularity.
The Tribunal shall have power to grant bail to any person in military custody.
The Tribunal may allow an appeal against conviction.
Substitute the findings of the court martial and pass a sentence afresh.
Remit the whole or any part of the sentence, enhance, or mitigate the punishment found to be excessive, illegal or unjust.
Suspend a sentence of imprisonment.
Power of quashing a conviction by a court martial or ordering re-trial by a court martial.
The Tribunal is deemed to be a criminal court for the purposes of the following
Section 175 of IPC – Omission to produce documents or electronic records.
Section 178 of IPC – Refusing oath or affirmation
Section 179 of IPC – Refusing to answer public servant
Section 180 of IPC – Refusing to sign statement
Section 193 of IPC – Punishment for false evidence
Section 195 of IPC – Giving or fabricating false evidence
Section 196 of IPC – Using evidence known to be false
Section 228 of IPC – Interruption to any public servant
Chapter VVXI of CRPC Offences Affecting Administration of Justice
TERRITORIAL JURISDICTION
The Territorial jurisdiction of the Regional Benches shall flow from the administrative orders issued by the Government of India from time to time. The present the States and Bench-wise territorial jurisdiction are explained above at Para 11.
Any person who is guilty of Contempt of the Tribunal Shall on conviction, be liable to suffer imprisonment which may extend upto three years. The provisions of Section 14,15,17, 18, and 20 of Contempt of Courts Act 1971 shall apply for trying of offences of contempt of the Tribunal under the following circumstances:
The Tribunal shall not be bound by the procedure laid down in the CPC 1908, but shall be guided by the principles of natural justice. The order of the Tribunal disposing of an application shall be final and shall not be called in question in any Court and such order shall be executed accordingly. The Central Government may make rules for the purpose of carrying out the provisions of this act on the basis of which Army, Navy and Air Force has formed the rules.
Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against.
Pending any appeal under sub-section (2), the Supreme Court may order that
There are various judgments of Hon’ble Supreme court and Hon’ble High courts regarding the power of Judicial review of High courts over AFT orders. There are various contradictory judgments on the subject. Two of the landmark and latest judgements on the subject are appended below for information.
In the case of Ram Harsh v. UOI, it was clarified that the Armed Forces Tribunal Act, 2007 does not strip the High Court of its power of judicial review under Article 226 of the Constitution. The jurisdiction granted to the High Court under Article 226 is extraordinary and discretionary in nature. It is important to note that the powers exercised by the High Court under Articles 226 and 227 are constitutional powers that cannot be excluded by legislation.
The power of judicial review vested in the High Court under Article 226 and 227 of the Constitution is an integral part of the basic structure of the Constitution. Judicial review in India encompasses three main aspects: review of legislative action, review of judicial decisions, and review of administrative action.
Therefore, judgments that restrict the High Courts from exercising judicial review over Armed Forces Tribunal (AFT) orders go against the established principles. The High Court retains the authority to review AFT orders under its constitutional powers and provide necessary oversight.
In the case of Major Nishant Kaushik vs Union of India and Ors. on 11 October 2022, the role of the High Court was clarified regarding its jurisdiction over decisions or orders made by the Tribunal. The High Court does not function as an appellate court in such cases but rather exercises its supervisory jurisdiction. When reviewing the judgment or order of the Tribunal, the High Court performs the power of judicial review, focusing on correcting errors of jurisdiction or errors that are evident on the face of the record, or when the Tribunal acts unlawfully. It is important to note that the writ jurisdiction of the High Court cannot be used as a disguised form of an appeal.
The scope of an appeal before the High Court from a final decision or order of the Tribunal is extremely limited, and it is restricted to the power of judicial review. This power is exercised by the High Court when examining the decision-making process or when correcting errors of jurisdiction or errors that are apparent on the face of the record, or when the Tribunal acts unlawfully. As a result, in most cases, no appeal from a final decision or order of the Tribunal can be filed before the High Court. The only recourse to challenge the final decision of the Tribunal lies with the Apex Court, the highest court of the country.
In conclusion, the recent judgment in the case of Balakrishna Ram Vs Union of India, Civil Appeal No 131/2020, has shed light on the jurisdiction and appellate process of the Armed Forces Tribunal in India. The court rejected the notion of transferring an intra-court appeal from a single judge’s judgment in the High Court to a Division Bench of the Tribunal. This decision emphasizes the importance of maintaining a proper balance and composition within the Tribunal, with the presence of both retired judges and retired Armed Forces officials.
While it is essential to prevent a blanket ban on the exercise of jurisdiction by the High Courts, as ruled in the L. Chandra Kumar case, it is equally important to uphold the objective of establishing the Armed Forces Tribunal. This objective primarily aims to alleviate the burden on High Courts in matters related to the Armed Forces. Allowing contradictory judgments from various High Courts to review Armed Forces Tribunal orders would undermine the very intent of the Act.
In light of these considerations, it is my opinion that the review of Armed Forces Tribunal orders should be limited to the highest court of the country, the Apex Court. This approach ensures consistency, uniformity, and adherence to the objectives behind the establishment of the Tribunal. By doing so, the burden on High Courts can be effectively reduced, and the intended purpose of the Armed Forces Tribunal can be realized.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
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The usage of Drones in India is catching up with that in other nations and gaining considerable momentum. India does not have a specific Act on Drones. However, Aircraft Act 1934 is the basic Act governing all the matters relating to civil aviation. Aircraft Act 1934 was amended recently in the year 2000 which is known as The Aircraft Amendment Act 2020. The Central Government therefore in exercise of the powers conferred by n 5, sub-section (2) of section 10 and sections 10A, 10B and 12A of the Aircraft Act, 1934 (22 of 1934), has made the ‘Drone Rules 2021’.
Section 2 of the Drone Rules 2021 defines:
‘Drone’ as an unmanned aircraft system.
‘Unmanned Aircraft system’ means an aircraft that can operate autonomously or can be operated remotely without a pilot on board.
The unmanned aircraft shall be categorised into the following three categories namely:
The classification of Drones is based on the maximum all-up weight including payload. They are classified as follows:
No person is allowed under the law to use and operate Drones without any valid license or certification from the Director General of Civil Aviation.
The Director General of civil Aviation under the Ministry of Civil Aviation or any entity authorised by the Director General may issue a certificate for operating Drones known as ‘Type Certificate’.
Any person willing to obtain a type certificate shall make an application on the form D-1 on the digital sky platform along with payment of prescribed fee and supporting documents. Also, the Drone shall be physically handed over to the Quality council of India which is the authorised testing entity of the Drones.
The Director General of civil aviation on satisfying itself with the report of the Testing Agency and other eligibility conditions shall issue a type certificate to the applicant.
There is no need to obtain a Type Certificate for the following types of Drones:
The Drones can be Imported to India and the process of Import shall be regulated by The Director General of civil Aviation under the Ministry of Civil Aviation or any entity authorised by the Director General.
The Registration of a Drone shall be done on the digital sky platform of Director General of Civil Aviation website. A unique identification number is allotted to each Drone on successful Registration.
The following steps are to be followed for obtaining certificate of Manufacture and Airworthiness (CMA)
The Airspace of India is divided into 3 zones for the purpose of operation of Drones. They are:
The Airspace map for Drone operations is so designed as to be programmatically accessible through a machine-readable Application Programming Interface and interactive so that unmanned aircraft system pilots shall be able to plot their proposed flight plan and easily identify the zone within which it falls so as to assess whether or not they need to make an application for prior approval. The Central Government from time to time update the changes related to status of an area within different zones of the airspace map on digital sky platform.
It is not required to take any permission to operate Drones in a Green Zone with an all-up weight up to 500kgs. However, the operation of drones in Red or Yellow zones requires the permission of operation from the nearest Air Traffic Controller authorities like the Indian Air Force, Airports Authority of India, Indian Navy, Hindustan Aeronautics Limited as the case may and Central Government or any entity authorized by the Central Government.
A Drone shall not be operated by any person other than a holder of a valid remote pilot licence enlisted on the digital sky platform.
An individual shall be eligible to obtain a remote pilot licence, if he–– (a) is not less than eighteen years of age and not more than sixty-five years of age; (b) has passed the class tenth examination or its equivalent from a recognised Board; and (c) has successfully completed such training as may be specified by the Director General, from any authorised remote pilot training organisation.
No remote pilot license shall be required for –– (a) operating a nano unmanned aircraft system; and (b) operating a micro unmanned aircraft system for non-commercial purposes.
With the introduction of the Drone Rules 2021, the Central Government’s initiative to promote Drone Industry is visible, however, it needs more liberalisation of policy to compete with international manufacturers and operators.
The Indian Space programme started in the year 1962 with setting up of Indian National Committee on space research (INCOSPAR) by the Father of the Indian space programme i.e., Dr. Vikram Sarabhai. Subsequently with the increasing space activities globally as a result of Cold War India became signatory to the under mentioned International treaties:
Further, the space activities in India have been governed by the Department of space which is headed by the Prime Minister of India.
India does not have any specific act on space, though it has got one of the biggest space organizations in the world i.e ISRO. The reason for not having a specific act till now is as follows:
However, with the increasing potential of the space programme, the willingness of the private sector to invest in India’s outer space, and with increasing missions to the moon and Mars, there has been a radical change in the Indian Space programme. The Space Activities Bill 2017 was introduced by the Indian Government to make a change in terms of the space policies of India. The draft bill has completed public and legal consultation and it has now been sent for further approvals.
ISRO was previously the Indian National Committee for Space Research (INCOSPAR). Indian Space Research Organisation (ISRO) is the space agency of India. The organization is involved in science, engineering, and technology to harvest the benefits of outer space for India and mankind. ISRO is a major constituent of the Department of Space (DOS), Government of India. The department executes the Indian Space Programme Primarily through various under-mentioned Centres or units within ISRO.
IN-SPACe (Indian National Space Promotion and Authorisation Centre) is a single-window nodal agency established to boost the commercialization of Indian space activities.
ANTRIX
As the commercial and marketing arm of ISRO, Antrix is engaged in providing Space products and services to international customers worldwide.
NSIL (New Space India Limited)
NSIL is the commercial arm of the Indian Space Research Organisation (ISRO) with the primary responsibility of enabling Indian industries to take up high-technology space-related activities and is also responsible for the promotion and commercial exploitation of the products and services emanating from the Indian space program.
In the absence of any specific act on Space Indian space program is guided by the Rules made by the Department of Space along with related legislation and regulations of the Government of India. In addition, policies such as Remote Sensing Data Policy, SATCOM policy, Mapping policy, etc provide the relevant policy guidelines.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
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The Royal Indian Air Force was established on 08 Oct 1932 as an auxiliary of the Royal Air Force. To commemorate the formation day of the Royal Indian Air Force, 8th October is declared as Air Force Day. After India became a Republic on 26th January 1950, the Indian Air Force dropped its prefix ‘Royal’. Subsequently, an act to consolidate and amend the law relating to the Air Force was enacted by the Parliament of India on 22 Jul 1950 shortly called as Air Force Act 1950.
Accordingly in the exercise of the powers conferred by Section 189 of the Air Force Act 1950, the Central Government has made rules called ‘The Air Force Rules 1969’. Thereafter to meet the requirement of authoritative commentary on the provisions of the Air Force Act, 1950 and the Air Force Rules 1969, a Manual of Air Force Law was brought out in 1988 which primarily constitutes the Air Force Law. The Manual of Air Force Law is prepared considering various amendments to the Air Force Rules 1969 and also various landmark judgments of the Hon’ble Supreme Court on the Air Force Act 1950.
The Air Force being a special law has extraterritorial application in as much as a person subject to it continues to be so subject at all times irrespective of the place where he is serving; whether he is in India or elsewhere.
The persons who are subject to Air Force Act 1950 are as follows:
Officers and Warrant Officers of the Air Force.
Persons enrolled under this Act Airmen and Non-Combatants
Persons not otherwise subject to Air Force Law and who are on active service as specified by the Central Government.
Laws pertaining to Air Force personnel hold a unique position as they can supersede the Fundamental Rights guaranteed by the Indian Constitution. While Fundamental Rights are available to all citizens of India, there are certain reasonable classifications where restrictions on these rights may be imposed on specific individuals. Under Article 33 of the Indian Constitution, the Parliament has the authority to modify the application of Fundamental Rights to members of the Armed Forces. This empowers the Parliament to determine the extent to which these rights are applicable to Armed Forces personnel. Additionally, Article 34 of the Indian Constitution allows for specific restrictions on Fundamental Rights when martial law is in force in any area. Hence, through Article 33 and Article 34, Parliament is empowered to restrict, modify, or even suspend certain Fundamental Rights for members of the Armed Forces. Notably, these restrictions primarily pertain to the provisions outlined in Articles 14, 15, and 19 of the Indian Constitution. Consequently, the provisions of the Air Force Act 1950 cannot be challenged solely on the grounds that they infringe upon Fundamental Rights. These acts are enacted by Parliament within its legislative jurisdiction, as provided by Article 33 of the Constitution of India.
The Air Force Act 1950 consists of 194 sections and is divided into 16 chapters.
The applicability of Article 33 of the Indian Constitution is found in section 21 of the Air Force Act which empowers the Central Government to make rules restricting certain Fundamental Rights.
The Air Force Act is mostly a disciplinary code and ensures that the will of the commander is put into effect. The Act broadly deals with two provisions.
Firstly it recognizes certain offences committed by the persons subject to this Act.
Secondly, it lays down procedures regarding enrollment into the force, their arrest and court-martial procedures.
Offences under the Air Force Act: A wide range of offenses is punishable under the act, indicating discipline among the force. Some of the major offences are :
Section 34 : Offences in relation to the enemy, committed treacherously, intentionally with knowledge.
Section 35: Offences in relation to the enemy committed negligently or without due authority.
Section 37 : Mutiny
Section 38: Desertion and aiding desertion
Section 40: Striking or threatening a superior officer
Section 57: Falsifying official documents and false declaration
Section 64: Disobedience of lawful command.
Enrollment :
Chapter III (Section 10-17) deals with the commission, Appointment, and Enrollment of personnel into the Air Force. The commission is related to Officers, Enrollment for Airmen/NCs( E), and appointment for Civilians.
Court Martial
A Court Martial is a legal proceeding or a trial conducted for the personnel belonging to Air Force Act. Court Martial is a tribunal. Section 109 of the Act determines three different kinds of Court martial.
(i) General Court Martial
(ii) District Court Martial
(iii) Summary General Court Martial
Armed Forces are deployed in counter insurgency / terrorist operations when all other forces available to the State have failed to bring the situation under control. Armed forces operating in such an environment require certain special powers and protection in the form of an enabling law.
The Armed Forces Special Powers Act (AFSPA) was enacted by the Parliament and confers certain special powers on members of the Armed Forces (military forces, air forces operating on ground as land forces and any other armed forces of the Union (CRPF, BSF, ITBP etc)for carrying out proactive operations against the insurgents in a highly hostile environment. AFSPA comes into effect only in Disturbed Areas. Some of the important provisions are:
Section 3 It lays down the authority which has power to declare areas to be disturbed. These authorities are the Central and the State Governments.
Section 4 It gives the Army (including Air Force & Navy) powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms / ammunition dumps, fortifications/ shelters / hideouts and to stop, search and seize any vehicle.
Chapter VII of IPC 1860 deals with offenses relating to the Air Force
Section 131 Abetting Mutiny, or attempting to seduce an Airman from his duty.
Section 132 Abetment of mutiny, if mutiny is committed in consequence thereof.
Section 133 Abetment of assault by Airman on his superior officer.
Section 134 Abetment of such assault, if the assault is committed.
Section 135 Abetment of desertion of Airmen.
Section 136 Harbouring Deserter.
Section 137 Deserter concealed
Section 138 Abetment of act of insubordination by Airmen.
Section 139 Persons subject to certain acts
Section 45: Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.
Sections 130 to 132 The procedure for use of Armed Forces to disperse a mob bent on violence is provided in Sections 130 to 132 of the Code of Criminal Procedure (CrPC) of 1973.
Section 475: The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950 ), the Navy Act, 1957 (62 of 1957 ), and the Air Force Act, 1950 (45 of 1950 ), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court- martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court- martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court- martial.
Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.
A High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court- martial for trial or to be examined touching any matter pending before the Court- martial.
Order V Rule 28: The summons process is mentioned in Order V Rule 28 for servicing summons to soldiers, sailors or Airmen. Rule 28 of Order V states that the summons of service shall be sent to the Commanding Officer along with the Copy to be retained by the Defendant. The suit filing process against the armed forces personnel is the same as that of the regular suit but the only difference is of the service process and the privileges
According to Section 28 of the Air Force Act, no arms, clothes, equipment, necessaries, or animals used by any person for the performance of his duties may be confiscated nor can his pay, allowances, or any part thereof may be attached by the direction of any civil or revenue court or revenue officer to the satisfaction of any decree or order that may be enforced against him.
According to Section 29 of the Air Force Act, any person who belongs to the armed forces is not liable to be arrested under any process issued by the authority of any civil, revenue court or revenue officer. In case, if an arrest is made then the revenue officer may discharge such person by awarding reasonable costs to the Complaint concerned on receipt of a complaint by such person or his superior to that effect. Costs can be recovered in the same way as if they had been awarded by a decree against the individual obtaining the processes and no court fees are required to be paid for the recovery of such costs.
According to Section 30 of the Air Force Act, 1950 no presiding officer or member of a Court-martial, no Judge advocate, no party to any proceedings before a Court-martial, or his legal practitioner or representative, and no witness acting in obedience to a summons to a Court-martial while proceeding or returning from the Court-martial, may be detained in civil or revenue proceedings. If such a person is arrested under any such practice, he can be discharged by order of the Court-martial.
According to section 32 of the Air Force Act, 1950 any person of the armed forces is subject to obtain the certificate from the proper military/ Air Force authority to grant leave of absence or the leave applied by him to prosecute any suit or defend any such suit. The Court shall on the application of such a person may keep it for the hearing and final disposal of suit within the period of the leave so granted.
Civil courts should dispose of all suits for prosecution or defense, of officers, soldiers, or reservists who have received leave of absence as quickly as is compatible with the administration of justice, irrespective of the order in which they are recorded.
In this judgment, the Supreme Court arrived at a conclusion that A suo-motto declaration can be made by the Central government; however, it is desirable that the state government should be consulted by the central government before making the declaration.
In this judgment, the Supreme Court arrived at a conclusion that no blanket immunity will be available to the armed forces personnel for the unjustified death.
The legal framework governing the Indian Air Force is primarily based on the Air Force Act 1950, which acts as the main source of Air Force Law. This Act is further supplemented by subsequent Manuals, Rules, and Regulations that have been issued and updated over time, subject to amendments as necessary.
In addition to the Air Force Act 1950, the Air Force also relies on two additional forms of guidance to specify and delegate the content and subjects covered by the Act. These include Air Force Orders and Air Force Instructions.
Air Force Orders are issued on specific subjects and carry the signature of the Chief of the Air Staff. They primarily focus on internal policy matters that concern Air Force personnel. On the other hand, Air Force Instructions are issued by the Ministry of Defence and cover various policy matters that affect the Air Force as a whole.
It is worth noting that the Air Force Act 1950 is the primary authority and legal framework for the Indian Air Force. There are no other Acts or laws that unilaterally apply to the Indian Air Force, apart from the ones discussed above. The Act, along with the subsequent Manuals, Rules, and Regulations, form the basis for the operations, policies, and internal governance of the Indian Air Force.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
]]>FinTech is the combination of the terms ‘Technology’ and ‘Finance’. FinTech pertains to facilitation of Traditional Financial Services through advanced Technology methods. There is no single definition of the term ‘Fin Tech’. However, The Financial Stability Board (FSB) under the aegis of Bureau of Indian Standards defines FinTech as “Technology-enabled innovation in financial services that could result in new business models, applications, processes or products with an associated material effect on the provision of the financial services”. FinTech has now become essential to various sectors like Education, Retail, Insurance, Agriculture, Investment etc. Also, new technologies of Cryptocurrency and Bitcoin have made the Financial Technology Industry more important in the Economic Ecosystem. Some of the services offered by modern day Fintech Industry are:
The regulation of the FinTech Industry in India is largely disjoined due to the varied nature of goods and services provided by the Industry. Some of the examples of Regulatory Bodies in India are:
For Example: The FinTech Business related to Insuretechs, risk-free underwriting, on-the-spot purchasing related to various Insurance products are regulated by the Insurance Regulatory and Development Authority of India (IRDAI).
The legislations on FinTech in India encompass various laws that directly or indirectly impact the FinTech industry. The Insurance Act 1938 regulates the insurance sector in India and may impact FinTech companies offering insurance-related services. The Banking Regulation Act 1949 governs the functioning and regulation of banks in India, including those involved in FinTech activities. The Foreign Exchange Management Act (FEMA) 1999 controls foreign exchange transactions, which are relevant to FinTech companies engaged in cross-border activities. The Information Technology Act 2000 addresses legal issues related to electronic transactions and digital signatures, impacting the operations of FinTech companies. The Prevention of Money Laundering Act 2002 aims to prevent money laundering and terrorist financing, which affects FinTech firms handling financial transactions. The Competition Act 2002 ensures fair competition in the market and may have implications for FinTech companies. The Government Securities Act 2006 regulates government securities, which are relevant to FinTech firms dealing with securities. The Payment and Settlement Systems Act 2007 governs payment systems and includes provisions relevant to FinTech payment service providers. The Companies Act 2013 covers the incorporation, functioning, and governance of companies, including those operating in the FinTech sector. The Consumer Protection Act 2019 safeguards consumer rights, providing protection to users of FinTech services. It’s important to note that this list is not exhaustive, and there may be other legislations that impact the FinTech industry in India.
India has got various Tribunals as mentioned below to adjudicate on various matters related to FinTech and also to interpret various acts, rules and regulations on the subject.
Various Enforcement and Investigating Agencies are established under various acts to fight against various economic and FinTech crimes in India. Some of the premier Agencies are listed below:
FinTech Crimes are criminal activities that are carried out by Individuals or organizations to provide economic benefits through illegal methods. Although the FinTech industry always aims to disrupt current practices and do it fast, disruption can also create new opportunities for Fraud. The Regulators have noticed financial crimes related to the following:
For example, abusive activities have recently been identified as part of the video identification process and fraudsters were able to manipulate online job applications via the eBay platform so that the victims found themselves unknowingly in the middle of a bank account opening process. Thus, the applicants helped the fraudsters stay unrecognized and to misuse a newly opened bank account for money laundering activities.
It is to be noted that there exists no single window Legal redressal system to address FinTech Crimes in India. The nature and scope of Legal Redressal depends upon the Act/Regulation to it. The Financial sector is required to follow both generic norms related to the Information Technology Act 2000 as well as sesector-specificcts Every Legislation made on the subject does contain various provisions regarding Redressal of complaints and damages against FinTech crimes. Some of the examples of provisions contained to form such a Legal Redressal System against FinTech crimes are explained below:
Section 43A of the IT Act penalises body corporates who collect, process or store ‘sensitive personal data’, for being ‘negligent in implementation and maintaining reasonable security practices and procedures and thereby causing wrongful loss or wrongful gain to any person. The compensation payable under this section can be extended to five crore rupees.
The Act requires banking firms, financial institutions, and intermediaries to confirm the identification of clients, preserve records, and provide information to the Financial Intelligence Unit – India in a defined format (FIU-IND).
The Act attempts to regulate the activities of credit information companies and those notified as specified users of credit information.
The Foreign Exchange Management Act of 1999 (“FEMA”) and the rules and regulations issued thereunder control transactions involving foreign currency.
The Diversified nature of FinTech Transactions spreading over various industries and sometimes multi-industrial transactions make it difficult for the regulatory bodies to address and provide redressal systems to the rapidly growing FinTech crimes. Though there exists many Redressal mechanisms spread across various Acts, Regulations, and Rules it is felt that the current Redressal Systems are not adequate to curtail the rapidly growing FinTech crimes.
In order to enhance FinTech security, several recommendations have been proposed. One of the key areas of focus is the reformation of the Know Your Customer (KYC) process, taking into account the recent Supreme Court judgment on Aadhaar. This would ensure a more robust and secure customer identification process.
Another suggestion is the establishment of dedicated innovation teams within Public Sector Financial Services Companies. These teams would be responsible for fostering innovation and implementing secure FinTech solutions.
The use of Public Sector Blockchain for trade finance is also recommended, as it offers enhanced security and transparency in financial transactions. This technology can revolutionize the trade finance industry by reducing fraud and improving efficiency.
Re-engineering legal processes to adapt to the digital world is crucial for ensuring the security of FinTech transactions. This involves updating laws and regulations to address emerging challenges and protect the interests of users.
Promoting competitive neutrality in regulation is another recommendation. This means ensuring a level playing field for both traditional financial institutions and FinTech companies, preventing any undue advantage or disadvantage.
Regulation Technology (RegTech) is a key aspect of enhancing FinTech security. It involves leveraging technology to streamline regulatory compliance processes and improve oversight.
Greater coordination between various departments, regulatory bodies, and FinTech companies is vital. Collaboration and information-sharing can help identify and address security risks more effectively.
The sharing of valuable information on FinTech crimes among companies and regulatory bodies is also crucial. This can enable a proactive approach to combating financial crimes and enhancing security measures.
Implementing a Single Window System to address grievances related to FinTech crimes is recommended. This centralized system would provide a convenient and efficient platform for users to report and resolve any security-related issues.
To address data protection concerns in the financial sector, the formation of a Taskforce on data protection is suggested. This taskforce would focus on developing robust data protection frameworks and regulations.
Lastly, establishing Centers of Excellence in FinTech can foster research, innovation, and collaboration in the field. These centers would serve as hubs for knowledge-sharing and skill development, further strengthening FinTech security. By implementing these recommendations, the security of FinTech systems and transactions can be significantly enhanced, providing a safe and trustworthy environment for users and stakeholders.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
]]>Laws that are particular to a person and their religion are personal laws. It can be based on legislation or customary laws. Hindu personal laws are one of the most ancient laws that are prevalent in today’s era. On the other hand, the Muslim Personal Law 1937 Act in India passed in 1937. This Act deals with marriage, succession, and inheritance issues in Islam, but after the demarcation of Pakistan and India, both countries make their own personal laws. Pakistan makes its personal laws according to his religion and custom, while India practises the common civil code irrespective of its religion. Later, India makes drastic amendments to Hindu personal law and also extends its application to the followers of other religions too. The deep comparative analysis of personal laws among these is discussed below.
At first, through the Charter of 1753, the British gave both Hindus and Muslims freedom to practise their personal laws. It was clearly mentioned that there would be no interference from the British unless the two parties in a dispute willingly submitted to the jurisdiction of the court. In 1772, the Governor General of India, Warren Hastings, laid down that the laws of the Quran would be applied to Muslims and those of the Shastras to Hindus. After independence, Pakistan made the West Pakistan Muslim Personal Law (Shariah) Act, 1962, which deals with all questions regarding succession, marriage, property, divorce, dowry, guardianship, legitimacy, and many more, applicable only where the parties are Muslims. Under Hindu law, marriage is considered a sacrament. The Hindu Marriage Act of 1955 introduced the concepts of separation and divorce. Marriage was considered a sacrament. Further, in 1976, the Marriage Law Amendment Act expanded the grounds for divorce in Hindu marriage, extended the meaning of desertion, and gave minor girls the right to refuse their marriage. In 1956, the Hindu Succession Act was passed; the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act were enacted to cover other areas.[1]
Hindus personal laws are mainly found in: The “Shruti” contains all four Vedas, such as the Rig Veda, the Sama Veda, the Yajurva Veda, and the Athrva Veda. The “Smritis” are of three types: codes of Mnau, Yajnavalkya, and Narada personal laws and customs as recognised by statutory law by Hindus. These are applicable to legal issues related to matters of inheritance, succession, marriage, adoption, co-parenting, the partition of family property, the obligations of sons to pay their father’s debts, guardianship, maintenance, and religious and charitable donations.
These personal laws and customs are applied to all matters related to inheritance, wills, succession, dowry, legacies, divorce gifts, wakfs, guardianship, and preemption.
The Christian Marriage Act was enacted in 1972 in order to deal with different matters related to marriage. The Indian Divorce Act, enacted in 1869, contains matters related to divorce. Under the guidelines of this act, the husband can appeal for divorce on the grounds of adultery by the wife. Similarly, the wife has the right to appeal for divorce if her husband converted to another religion, married another woman, or was found guilty.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance,
|
Hindu laws |
Muslim laws |
|
Under the Hindu law, the practice of polygamy is abolished |
In Muslim law, the practice of polygamy is present under the law |
|
Adoption is there under the Hindu law |
Adoption is not there under the Muslim law |
|
Under the Hindu law, there is concept of separate and ancestral property |
under the Muslim law, there is joint and single property |
|
Hindu law is governed by the Hindu succession act, 1956 |
Muslim law is governed by Muslim shariat act, 1937[2] |
In conclusion, personal laws play an important role in differentiating people according to their religious and customary rights. Every country and its people have their own personal laws. The most important personal laws in Hinduism are the Hindu Marriage Act of 1955 and the Hindu Adoptions and Maintenance Act of 1956, and in Muslimism, the Muslim Personal Law is the most important personal law.
[1] https://www.ipf.org.in/encyc/2020/11/13/2_02_27_53_History-of-Personal-Laws-in-India-Papers_1.pdf
[2] https://blog.ipleaders.in/comparative-analysis-personal-laws-reference-india-pakistan-bangladesh/
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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The Constitution is a body of precedents governing the affairs of states. It protects citizens’ rights and enforces the duties of the state’s citizens. After the independence of India and Pakistan, both states made their own constitutions, but the heritage of law in both countries is the same. China, on the other hand, gained independence in 1949 and established its own legal system based on the Confucian philosophy of social control. The duties of a citizen in Pakistan are mostly the same as in India and China, such as the right to education; according to Article 25, the Pakistani state is bound to provide free education from age 5 to 16. On the other hand, in China, according to Article 19, the state provides better and compulsory primary education to every citizen of its state. There are many other duties of a state and its citizens, which are mentioned below.
In the comparison of these state constitutions, there are many key differences, which are as follows:
Preamble: The Preamble of the Islamic Republic of Pakistan begins with the name “Allah the Almighty.” It refers to the founder of Pakistan, Quad-i-Azam Mohammad Ali Jinnah. It promises adequate measures to protect the legitimate interests of minorities. It also promises to protect the independence of the judiciary.[1]
The Preamble of the Indian Constitution is more compact. It talks about things like minority rights and the independence of the judiciary, but in a clear way.[2]
People have power in China, and there are people who manage state affairs economically and socially in accordance with the law.
The Constitution of Pakistan recognises the right to privacy. The Supreme Court of India recently declared it to be a fundamental right.
The Constitution of Pakistan also recognises the right to education for children between the ages of 5 and 16. The Education Act of 2009 guarantees education for children between the ages of 6 and 14. In China, education is compulsory at the primary level, and the government ensures it in accordance with the law.
The Constitution of Pakistan guarantees the right to information and declares human dignity inevitable.In this regard, India passed the Right to Information Act in 2005.China does not expressly mention the right to information, but it does guarantee the right to free expression.[3]
Aside from the differences, a citizen has many responsibilities to the state, including:
Pakistan’s constitution is lengthy, but it fails to address a citizen’s fundamental responsibilities to the state, which is the failure of Pakistan’s legislators. Pakistan must seek advice from its neighbour on laws and citizen duties, such as those outlined in the Indian Constitution’s Article 51-A and the 86th Amendment Act of 2002. The duties include the following:
Chinese citizens have the same duties as Indian citizens, such as
It is a fundamental duty of the state to protect the rights of all citizens of society, regardless of gender, race, creed, or religion. There are the following fundamental duties regarding their respective constitutions: A state must ensure
i) The right to education
Every citizen of a state has the fundamental right to an education. In Pakistan, according to Article 25, every citizen has the right to free education. A state is responsible for providing free and compulsory education from age 5 to 16. In China, Article 46 gives the right to a free and good education. In India, it is the parent’s responsibility to ensure their children’s education from the age of six to fourteen.
ii) Establish a better economy and social security
It is the duty of the state to establish a better economy. Every country’s economy is like its lungs. Without proper functioning of the lungs, a human body cannot breathe or survive properly.
A better economy is directly related to social security; if the state ensures the right to individual protection and provides a good and safe environment for state industrialists and foreign investors, the state’s economy will progress on a positive path.
iii) Electoral rights and equality
According to Article 34 of the Chinese Constitution, every Chinese citizen over the age of 18 has the right to vote and stand in an election regardless of nationality, race, gender, or religious belief. whereas in Pakistan, a citizen must be at least 18 years old to cast a vote of his or her choice; he or she can also stand in an election, but as the head of a Muslim state, he or she must be a Muslim and follow the practise of Islam according to On the other hand, in India, all the rights are the same, and to become the head of state, it is not necessary to be a Hindu, Muslim, Sikh, etc.
iv) Keep abiding by international law and treaties.
Every state has a fundamental and moral obligation toward another state to uphold international law and the promises and treaties signed between them. For example, the Indus Water Treaty of 1960 was signed between India and Pakistan regarding the usage of water. As neighbors, both states must maintain peace and foster good relations for the benefit of their people. An eruption on the Line of Control (LOC) between India and Pakistan, and possibly between China and India, must be stopped.
The duties of the election commission in India and Pakistan are the same, such as ensuring that no dispute happens at polling sites, providing fairness, and not rigging elections. Facilitate and protect the citizens’ rights to vote and stand in elections independently.
It is the responsibility of the state to protect the property rights vested in the citizens of the state. According to Article 24 of the Pakistani Constitution, no one shall be deprived of his right to property unless the property is used for public or government interest, in which case the government pays the dues or does what is best according to law. Articles 12 and 13 of the Chinese constitution make sure the rights of its citizens are protected, and if any property is used for public or government interest, it will be compensated according to law. In India, two articles, 31 and 19(1)(f), guarantee the individual’s fundamental property rights to the state.
Following all of the above-mentioned lengthy discussions, we concluded that the duties of a state and its citizens are critical to maintaining peace among states and progress in all areas of life. Every country has its own set of rules, regulations, and laws, but the rights to an education, to property, and to freedom of speech are universal. The right to vote is the standard right of every citizen of a democratic country. Each state must follow international law and uphold the treaties signed between them.
https://www.helplinelaw.com/law/china/constitution/constitution03.php
[1] https://www.pakistani.org/pakistan/constitution/part2.ch1.html
[2] https://www.iasparliament.com/current-affairs/comparison-of-constitutional-aspects-india-and-pakistan
[3] https://www.refworld.org/pdfid/4c31ea082.pdf
[4] https://nayadaur.tv/2020/03/fundamental-duties-of-citizens-must-be-added-to-the-constitution/
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>The rule of law simply means supremacy of law, equity before law, and predominance of the legal spirit. Every successful country is only based on its administration of the rule of law. The country, with its absence or inadequate rule of law, bears the economic and other crises. As Pakistan is the worst country in the South Asian region in terms of implementation of the rule of law, according to the World Justice Project’s (WJP) rule of law index, Pakistan ranked 129 out of 140 in 2021 surveys, and in the recent index, it fell further to 137, which is much comparatively low compared to its neighbour India, which ranked 77 out of 140.[1]
According to Professor A.V. Dicey The rule of law is the absolute supremacy or superiority of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness.
The rule of law has been derived from the French phrase “le principe de legalite,” i.e., government based on the principles of law. No one is above the law.
Incompetent people in power are the big challenge to keeping the rule of law administered properly. Since independence until now, Pakistan has faced leadership crises, proper reforms in laws, and their implementation. Lack of legal education and public legal awareness among the citizens becomes the major challenge to the rule of law in India and Pakistan. Due to a lack of these elements, Pakistan ranks 137 out of 140 countries. On the other hand, India faced challenges in protecting the rights of minorities and raising public awareness regarding their fundamental rights provided by the constitution.
Pakistan does not meet most of the requirements of the rule of law; things may be improving, but at a very slow pace. Pakistan does not meet the following requirements:
The law must be accessible and, as far as possible, understandable, clear, and predictable. Unfortunately, this rule of law requirement is not met in Pakistan. The laws in Pakistan lack clarity. They are still couched in the colonial English system, and their sentence structure is hard to grasp even for a lawyer.
Another requirement of the rule of law is that there should be an independent judiciary. When people talk about an independent judiciary, they often refer to the higher judiciary, i.e. the High Courts and the Supreme Court. However, our analysis will also include the lower judiciary. I believe, and statistics and social experiments also tell us, that there is no independent judiciary in Pakistan. Montesquieu says that any punishment that does not arise from absolute necessity is tyrannical. Unfortunately, our courts have become instruments of tyranny instead of guardians of the rights of the weak against the powerful.
Another aspect of the rule of law is that means must be provided for resolution without undue cost or delay. All case reduction principles, i.e., case management, cost award, ADR, etc., exist only on paper and not in practice, so I will end this paragraph with a common expression prevalent among litigants in our culture, which is: “God save us from two things: courts and hospitals.”
Yes, the rule of law is quite better in India than Pakistan. According to the 2021 World Justice Project Index report, Pakistan ranks 129 out of 140 countries in rule of law, while India ranks 79. In the recent WJP report, Pakistan performs badly in protecting the rule of law and ranks 137, while India makes progress and stands at 77. Recent events such as the illegal detention of Senator Azam Sawati, MNA Shahbaz Gill, and other senior journalists became the main reason for the downfall of Pakistan’s rule of law worldwide. Another reason is the following:
The rule of law is the foundation on which the United Nations is built. It is the basis of peace and stability on the international stage. All states in the General Assembly have an obligation to comply with the Charter of the United Nations and the wider body of international law. All member states are expected to be subject to these laws, apply them in their international relations, and be equal before them. The work to ensure this basic principle is the essence of our work to promote the rule of law at the international level.
The United Nations also promotes the rule of law in member states by supporting the development of norms, social practices, and institutions that ensure the independence of the main administrative institutions. This strengthens the decision-making processes to which political leaders are subject by limiting the arbitrary exercise of political power. This is particularly important in post-conflict situations to consolidate and build on a political settlement.
It is also important to consider how the rule of law reaches far beyond laws and courts. By enforcing the rule of law, which is equally applicable to all without discrimination, the rule of law provides political and economic opportunities for all members of society. It empowers people by giving them the right to access public services, thereby holding state entities accountable for providing those services. The rule of law also strengthens mechanisms that promote and protect universal human rights. As such, strengthening the rule of law creates both opportunity and justice and ultimately helps create better conditions for broader state and UN accountability.
As a result of our detailed analysis, we concluded that no country can progress through ignorance of the rule of law. The rule of law provides equal opportunities for all members of society. The rule of law has great importance at the international level. The United Nations (UN) is only successful in keeping the rule of law. But Pakistan is performing badly in abiding by the rule of law. The challenges that Pakistan is facing, i.e., incompetent people in power, lack of proper reforms in the law, slow and prolonged trials, lack of legal awareness among the public, and absence of transparency in justice, become the main reasons for the absence of the rule of law. On the other hand, India and other neighbours perform well in ensuring transparency in the rule of law, which is why they are good at international ranking.
https://storyofpakistan.com/rule-of-law/
https://www.britannica.com/topic/rule-of-law/Challenges-to-the-rule-of-law
https://www.ijlmh.com/paper/rule-of-law-a-comparative-analysis-of-india-and-pakistan/#
[1] https://worldjusticeproject.org/rule-of-law-index/country/2022/Pakistan/Order%20and%20Security/
[2] https://blog.ipleaders.in/rule-of-law-2/#Rule_of_law_in_India
[3] https://byjus.com/free-ias-prep/rule-of-law-upsc-notes/
[4] https://worldjusticeproject.org/our-work/wjp-rule-law-index/special-reports/rule-law-pakistan
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>Public opinion on LGBT politics is complex. In June 2013, the Pew Research Center reported that of the 39 countries surveyed, Pakistan was one of the least accepting of homosexuality, with 87% of respondents saying “society should not accept homosexuality.” It is a criminal act and is punishable under Article 377 CR.PC.
Punishment: from two years to life imprisonment, a fine, or both. Hudood regulations, which theoretically allow the death penalty but have not been enforced since 1985, have never been used to prosecute homosexual acts.
In 2018, Pakistan passed a bill to protect the rights of transgender people, which was largely opposed by the public because of the misconception that transgender people have LGBTQ rights. There is a difference between them because a transgender person is transgender by birth, while LGBTQ people of the same gender change their gender according to their desire and also get married, which is forbidden in Islam and violates the laws of the land.
In this bill, transgender people are given many rights, which are listed below:
References
https://en.wikipedia.org/wiki/LGBT_rights_in_Pakistan#Public_opinion
https://na.gov.pk/uploads/documents/1526547582_234.pdf
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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In the past, performers’ rights were not recognized under copyright law, which meant that actors’ performances in cinematograph films and singers’ performances in sound recordings were not protected by law. Therefore, the use of dramatic works or sound recordings did not require the performer’s consent. However, in India, the Copyright Act of 1957 began recognizing performance rights in 1994, which was later adopted worldwide by the Treaty of Rome in 1961. The recognition of performers’ rights under copyright law ensures that performers have the exclusive right to authorize or prohibit the recording, reproduction, or broadcast of their performances. In India, the laws governing performer rights are contained in various sections of the Copyright Act of 1957, including Sections 38, 39, and 39A. These sections outline the rights of performers and provide for the protection of their performances, including the right to remuneration for the use of their performances.
When the copyright was first implemented under British rule, performer’s rights were not recognized. Even after independence, the Copyright Act of 1957 did not acknowledge performers’ rights. However, in the case of Fortune Films v. Dev Anand in 1979, the Bombay High Court ruled that performers’ rights do not fall under copyright as they were not recognized under the Act. Subsequently, it was realized that performers’ rights needed to be incorporated into copyright law. In 1994, the Copyright Amendment Act was enacted, and Sections 38, 39, and 39A were introduced to recognize performers’ rights. The Indian Copyright Act defines the term “performer” in Section 2(qq), which includes actors, dancers, musicians, singers, acrobats, conjurers, snake charmers, jugglers, those giving lectures, and anyone else who performs. However, sports are considered competitive, and the results are unpredictable, and since athletes are required to play by the rules and cannot be creative, they cannot be considered performers within the context of sports. The Indian Copyright Act recognizes the range of performers in addition to the TRIPS and Rome Convention baseline requirements. This provides performers with the exclusive right to reproduce, issue copies, perform, communicate, and make adaptations of their performances.
In the past, the contributions made by those who assisted intellectual property creators in making their work known to the public were not recognized. The worth of a song created by a lyricist or an author’s play is often dependent on performers to bring the work to life. However, performers were not always acknowledged for their contributions. The recognition of performer rights began in 1961 with the adoption of the Rome Convention, which provided them with certain rights. Performers now have the right to prevent others from recording or fixing their live performances without their permission. They also have the right to stop their performance from being commercially exploited for any other purpose without their prior approval.
It is worth noting that the term “broadcasting organization” has been added to the list of individuals whose rights may need to be recognized under the performer rights laws. This inclusion recognizes the significant contributions made by broadcasting organizations to the dissemination of works by performers. The Indian Copyright Act of 1957, as amended in 1994, recognizes performer rights, which are covered by Sections 38, 39, and 39A. The Act defines a performer as an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, lecturer, or anyone who performs. However, the Act does not extend performer rights to athletes, as sports are competitive and require players to follow rules rather than be creative performers.
According to the act, the performer does have the sole authority to do the following: –
The Copyright Act’s Sections 63 – 70, as well as Section 55, provide remedies for performers whose rights have been infringed upon. In case of a performer’s rights are violated, the law allows for the defendant’s property to be searched through a court order. This court order is known as an “Anton Pillar order.” An Anton Pillar order is typically granted to enable the claimant and their legal representative to search the defendant’s property for any relevant information that can support the claim that the performer’s rights have been infringed.
Performers have various other options available to them if their rights are violated, including criminal and civil remedies in addition to an Anton Pillar order. Criminal sanctions may include the collection of a fine from the offender and imprisonment of up to three years. Civil sanctions may involve obtaining a temporary or permanent injunction.
It is important to note that the Anton Pillar order is a serious legal tool and should not be sought lightly. Courts take a cautious approach in granting Anton Pillar orders, as they are intrusive and may result in substantial damage to the defendant’s reputation and business. A court may require the claimant to provide a compelling justification for the Anton Pillar order and may impose strict conditions to safeguard the defendant’s interests. Performers who have had their rights infringed upon may seek legal assistance to explore their options and determine the most effective course of action.
It can be inferred that copyright is a form of intellectual property rights protection provided by the law, which grants exclusive rights to the authors of original works. In addition to authors, performers, such as artists, dancers, acrobats, snake charmers, and others, are also granted exclusive rights under copyright law. These exclusive rights are granted to motivate performers to create more original content without the fear of infringement. The inclusion of performers’ rights in copyright law is a positive development, as it recognizes and protects their valuable contributions.
Although performers have long been recognized as an essential part of copyright work, they have not always received the necessary level of acknowledgement or protection. The inclusion of performers’ rights under the copyright act has significantly improved their financial situation and provides them with legal protection for their rights.
It is important to note that performers’ rights may vary depending on the jurisdiction and the type of performance. For example, some jurisdictions may recognize moral rights for performers, such as the right to be credited for their performance or the right to object to modifications of their performance. It is important for performers to understand their legal rights and seek legal assistance if necessary. Overall, performers’ rights are an essential part of copyright law, and their inclusion reflects the importance of their contributions to the creative industry.
Authored by Dhruv Kaushik, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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